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Rogers v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Tampa Division

June 27, 2019

JOE EDWIN ROGERS, JR., Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE.

         Joe Edwin Rogers, Jr., a Florida inmate, timely filed a counseled petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) challenging his Hernando County convictions and a supporting memorandum of law (Doc. 2). Respondent filed a response (Doc. 9) and Rogers filed a reply (Doc. 15). In accordance with a previous Order of this Court (Doc. 17), Respondent filed a supplemental response (Doc. 20). Rogers did not reply to the supplemental response. Upon review, the petition will be DENIED.

         Procedural History

         Rogers was convicted after a jury trial of 125 counts of possession of child pornography. (Doc. 10-2, Ex. A cont'd, doc. pp. 60-84; Doc. 10-3, Ex. A cont'd, doc. pp. 1-102). He was sentenced to an overall term of 75 years in prison, followed by 10 years of sex offender probation. (Doc. 10-4, Ex. A cont'd, doc. p. 2; Doc. 10-6, Ex. A cont'd, doc. pp. 1-4). The state appellate court affirmed the convictions and sentences in a written opinion. Rogers v. State, 96 So.3d 922 (Fla. 5th DCA 2012). The state appellate court dismissed Rogers's petition alleging ineffective assistance of appellate counsel, filed under Florida Rule of Appellate Procedure 9.141(d). (Doc. 10-29, Exs. II, JJ).

         Rogers also filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and amendments to the motion. (Doc. 10-25, Ex. N, Doc. 10-26, Exs. N cont'd, P, Q). The state postconviction court summarily denied relief. (Doc. 10-26, Exs. O, R). The state appellate court affirmed in part and reversed in part. Rogers v. State, 162 So.3d 334 (Fla. 5th DCA 2015). On remand, the state postconviction court conducted an evidentiary hearing on several of Rogers's claims. It then entered a final order denying Rogers's motion. (Doc. 10-28, Ex. AA). The state appellate court per curiam affirmed the denial of relief. (Doc. 10-29, Ex. EE).

         Rogers filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). (Doc. 10-29, Ex. MM). The state court denied the motion on the basis that Rogers's claim was not cognizable under Rule 3.800(a), and the state appellate court per curiam affirmed. (Doc. 10-29, Exs. NN, PP).

         Facts[1]

         In 2007, Rogers and his then-girlfriend, Catherine Schlaegel, lived in Tennessee. They had a daughter together in 2007 but maintained separate residences. In May 2007, Rogers moved to Spring Hill, in Hernando County, Florida, to begin a new job. He took a limited amount of belongings with him. Schlaegel and their daughter moved in June 2007. At that time, a moving truck brought the rest of Schlaegel's and Rogers's belongings. They lived together in Spring Hill.

         As Schlaegel was organizing the new house, she threw away adult pornography that she found. In July or August 2007, Schlaegel located an unmarked compact disk either in Rogers's laptop bag or in his closet. When she put the disk in her computer, she saw one image of child pornography. Schlaegel hid the disk in her closet. When she confronted Rogers, he said he did not know what she was talking about. But Rogers agreed to go to a therapist, and he and Schlaegel went to therapy together several times.

         Schlaegel and Rogers moved to Citrus County in December 2007; they separated in approximately May 2008 and began living in separate residences. In April 2009, after Schlaegel attempted suicide, Rogers filed an emergency motion in state court to obtain custody of their daughter. Schlaegel contacted police, and provided them with the disk on May 1, 2009. A short time later, Schlaegel went to Rogers's home while wearing a recording device. Their recorded conversation was played at trial. In the conversation, Rogers stated that he had sometimes accidentally downloaded child pornography, but maintained that he believed he had deleted it all.

         Detectives used a program called Forensic Tool Kit to analyze the disk provided by Schlaegel. The program recovered 178 images of child pornography. The State charged Rogers with 125 counts of possession of child pornography.

         Standard Of Review

          The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner is in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413.

         The AEDPA was meant “to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one.” Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).

         The state appellate court affirmed the denial of each claim for postconviction relief without discussion. These decisions warrant deference under § 2254(d)(1) because “the summary nature of a state court's decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”). When a state appellate court issues a silent affirmance, “the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

         Exhaustion Of State Remedies; Procedural Default

         A federal habeas petitioner must exhaust his claims for relief by raising them in state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”).

         The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts that court to the federal nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971). “If the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

         Ineffective Assistance Of Counsel

         Claims alleging ineffective assistance of counsel are analyzed under the test announced in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and resulting prejudice. Id. at 687. To show deficient performance, a petitioner must demonstrate that “counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88. A court must consider whether, “in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.” Id. at 690. However, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. Rogers must demonstrate that counsel's alleged error prejudiced the defense because “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691-92. To demonstrate prejudice, Rogers must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal habeas review because “[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential,' and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (citations omitted). See also Burt v. Titlow, 571 U.S. 12, 15 (2013) (this doubly deferential standard of review “gives both the state court and the defense attorney the benefit of the doubt.”).

         Discussion

         Ground One

         Schlaegel's testimony indicates that she viewed a limited number of images on the disk, and only one that she believed depicted child pornography. According to Detective Christopher Cornell's testimony, after the Forensic Tool Kit program analyzed data from the images on the disk, which numbered more than 20, 000, he reviewed and isolated the images that he believed depicted child pornography. (Doc. 10-10, Ex. C cont'd, transcript pp. 275-77). Rogers asserts that police violated his Fourth Amendment rights in reviewing the entirety of the disk because this was a warrantless search that exceeded the scope of the search conducted by Catherine Schlaegel as a private individual. Accordingly, in Ground One, Rogers alleges that trial counsel was ineffective in not moving to suppress the disk on this basis.

         This claim was presented to the state postconviction court in Rogers's postconviction motion. However, Respondent contends that the claim is unexhausted because Rogers failed to brief it with specificity on collateral appeal. See Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (a state prisoner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process, including review by the state's court of last resort, even if review in that court is discretionary.”) (quotation omitted).

         As Respondent notes, Rogers did not expressly discuss or identify the ineffective assistance claim in his brief. Rather, he stated that “the trial court's January 24, 2014 order summarily denying Grounds 1, 2, 3, 5, and 6 of counsel's July 24, 2013, motion for post-conviction relief fails to conclusively refute those claims” and that the denial of those claims should be reversed. (Doc. 10-27, Ex. S, doc. p. 19).[2] Despite Rogers's cursory briefing, this Court concludes that Rogers satisfied the exhaustion requirement. It is apparent that the Fifth District Court of Appeal considered his claims because it reversed the postconviction court's denial of two subclaims, Grounds 1(a) and 1(d), which were only addressed as part of the generalized briefing quoted above.

         This Court also concludes that the state appellate court adjudicated Rogers's ineffective assistance claim on the merits. The opinion states, “We affirm, except as to claims I(a) and I(d) set forth in Rogers's initial [postconviction] motion. We conclude that these claims are legally sufficient and not conclusively refuted by the record.” Rogers, 162 So.3d at 334 (footnote omitted). To reach this determination, the state appellate court must have reviewed the merits of the claims presented in the underlying motion, and there is no reason to conclude that it only reviewed the merits of subclaims 1(a) and 1(d). The state appellate court's affirmance in all other respects indicated that it denied on the merits all remaining claims and subclaims, even if not expressly addressed by the postconviction court.

         Rogers has not shown that the denial of his ineffective assistance claim was contrary to, or involved an unreasonable application of, clearly established federal law or was based on an unreasonable determination of the facts. “To obtain relief where an ineffective assistance claim is based on trial counsel's failure to file a timely motion to suppress, a petitioner must prove (1) that counsel's representation fell below an objective standard of reasonableness, (2) that the Fourth Amendment claim is meritorious, and (3) that there is a reasonable probability that the verdict would have been different absent the excludable evidence.” Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).

         Rogers has not demonstrated that he had standing to bring a Fourth Amendment challenge to the police search because he does not show he had a reasonable expectation of privacy in the disk. “Fourth Amendment rights . . . are personal, and only individuals who actually enjoy the reasonable expectation of privacy have standing to challenge the validity of a government search.” United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir. 2000) (citing Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)). See also United States v. Gibson, 708 F.3d 1256, 1276 (11th Cir. 2013) (“A defendant has standing to challenge a warrantless search if the defendant had a ‘legitimate expectation of privacy' in the property when it was searched.” (citing Rakas, 439 U.S. at 143)).

         However, “Fourth Amendment claims do not lie when the defendant has abandoned the searched property.” United States v. Sparks, 806 F.3d 1323, 1341 (11th Cir. 2015). “The critical inquiry when determining whether an abandonment has occurred is ‘whether the person prejudiced . . . voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question.'” Id. at 1342 (quoting United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994)). This inquiry involves considering the totality of the circumstances. See id. at 1344. “Whether abandonment occurred is a question of intent which may be inferred from acts, words and ‘other objective facts.'” United States v. Walker, 199 Fed. App'x. 884, 886 (11th Cir. 2006) (citing Ramos, 12 F.3d at 1022-23). “Events that occurred after the abandonment can be considered as evidence of a defendant's intent to abandon the property.” Id. (citing United States v. Winchester, 916 F.2d 601, 604 (11th Cir. 1990)). Further, “[w]hether or not the facts reveal a complete abandonment in the strict property-right sense is not the issue . . . the Fourth Amendment is not to be applied in a hypertechnical manner but with a common sen[s]e approach.” United States v. Edwards, 441 F.2d 749, 753 (5th Cir. 1971).

         When Schlaegel took the disk and confronted Rogers about its content, he said that he did not know what she was talking about. (Doc. 10-8, Ex. C, transcript p. 190). Rogers told Schlaegel that she had the image, not him, and that it was hers, not his. (Id.). And although Rogers continued to inquire about the disk's location, the record does not show that Rogers demanded or expected the disk's return or claimed that it was still his between the time Schlaegel took it and the time she gave it to police nearly two years later.

         A common sense assessment of these circumstances leads to the conclusion that Rogers “voluntarily relinquished his interest” in the disk to Schlaegel. See Sparks, 806 F.3d at 1341. As these circumstances indicate that Rogers abandoned the disk for Fourth Amendment purposes, and thus no longer had a reasonable expectation of privacy in the disk, he lacked standing to challenge the validity of the police search. See Cooper, 203 F.3d at 1284. Counsel is not ineffective for failing to bring a meritless claim. See Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (“[I]t is axiomatic that the failure to raise nonmeritorious issues does not constitute ineffective assistance.”).

         Even if Rogers had Fourth Amendment standing to file a motion to suppress, he has not shown ineffective assistance because he has not demonstrated a reasonable probability that the motion would have been granted. “A search of property, without warrant or probable cause, is proper under the Fourth Amendment when preceded by valid consent.” United States v. Dunkley, 911 F.2d 522, 525 (11th Cir. 1990) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). The person giving voluntary consent “must have authority to do so” or “must reasonably appear to have the authority to do so.” Id. (citing United States v. Matlock, 415 U.S. 164, 171 (1974) and Illinois v. Rodriguez, 497 U.S. 177 (1990)). Rogers has not shown that Schlaegel lacked the authority to consent to the search.

         A third party has actual authority to consent to a search of property if she has “common authority over or other sufficient relationship to the . . . effects sought to be inspected.” Matlock, 415 U.S. at 171. “A third party has apparent authority to consent to a search if an officer could have reasonably believed the third party had authority over the area searched.” United States v. Barber, 777 F.3d 1303, 1305 (11th Cir. 2015) (citing Rodriguez, 497 U.S. at 188-89). See also United States v. Garcia-Jaimes, 484 F.3d 1311, 1323 (11th Cir. 2007), vacated and remanded on other grounds by Moreno-Gonzalez v. United States, 128 S.Ct. 2901 (2008) (“[E]ven if the consenting party does not in fact have the requisite relationship to the premises, if the officer has an objectively reasonable, though mistaken, good-faith belief that the consent was a valid consent, there is no Fourth Amendment violation.”).

         Rogers has not shown that Schlaegel lacked actual authority to consent to the search of the entire disk. As addressed, Rogers told Schlaegel that the disk and images were hers. Further, Schlaegel admitted that she kept the disk and that it was in her possession. (Doc. 10-9, Ex. C cont'd, transcript p. 228). Alternatively, Rogers fails to demonstrate that Schlaegel did not have apparent authority to consent. The record shows that police recovered the disk from Schlaegel directly, and that she told police about the circumstances under which she obtained the disk and how she found the image when she put the disk in a computer. (Id., transcript pp. 197-99; Doc. 10-10, Ex. C cont'd, transcript pp. 255, 333, 337). Accordingly, the police “could have reasonably believed” that Schlaegel had authority to consent to the search. Barber, 777 F.3d at 1305. Therefore, Rogers has not shown that a motion to suppress would have succeeded, as the police obtained valid consent before conducting the search. See Bolender, 16 F.3d at 1573.

         Finally, even assuming that Rogers had Fourth Amendment standing and that Schlaegel's consent was invalid, Rogers cannot obtain federal habeas relief on his ineffective assistance claim because he fails to meet his burden under § 2254(d)(1), (2).

         Rogers's claim relies on the private search doctrine. Under this doctrine, police cannot undertake a warrantless search of an item that “exceed[s] the scope” of a private individual's search. United States v. Jacobsen, 466 U.S. 109, 115-16 (1984). Jacobsen, which concerned a police search of a damaged box after Federal Express employees saw white powder in a package inside the box and alerted police, further explains:

It is well-settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information: “This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976). The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. In such a case the authorities have not relied on what is in effect a private search, and therefore presumptively violate the Fourth Amendment if they act without a warrant.

Id. at 117 (footnotes omitted).

         Rogers claims that because Schlaegel only viewed a limited number of images on the disk, police improperly exceeded the scope of that search when they reviewed the entire disk without a warrant. To show entitlement to federal habeas relief on the state court's denial of his ineffective assistance claim, Rogers must show that the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. “[C]learly established federal law” only encompasses holdings of the United States Supreme Court at the time of the relevant state court decision. Williams, 529 U.S. at 412.

         Schlaegel began reviewing the disk, saw an image of child pornography, and later alerted police and told them about the disk's content. Rogers has not identified any clearly established federal law holding that when a private searcher views at least one image on a disk and tells police that the disk contains contraband, police exceed the scope of the private search by viewing other images on that same disk.[3] As Rogers does not cite any Supreme Court decision involving materially indistinguishable[4] facts in which the Supreme Court reached a decision different from the state court, or show that the state court reached the opposite conclusion as the Supreme Court did on a question of law, he has not demonstrated that the state court's decision was contrary to clearly established federal law. Nor has Rogers shown that the state court's decision involved an unreasonable application of clearly established federal law. Accordingly, he is not entitled to relief on Ground One.

         Ground Two

         Rogers contends that appellate counsel was ineffective in failing to argue that the jury returned non-unanimous verdicts. The Court finds that this claim is procedurally defaulted and is barred from federal habeas review.

         Rogers raised this claim in his state habeas petition. (Doc. 10-29, Ex. II). The state appellate court dismissed the petition, stating only that it “ORDERED that the Petition for Ineffective Assistance of Counsel, filed June 15, 2016, is dismissed.” (Doc. 10-29, Ex. JJ). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court has adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99 (emphasis added). This presumption “may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Id. at 99-100.

         Here, it is more likely that the state appellate court found Rogers's habeas petition untimely. Florida Rule of Appellate Procedure 9.141(d)(5) provides that, generally, a petition alleging ineffective assistance of appellate counsel “shall not be filed more than 2 years after the judgment and sentence become final on direct review.” Rogers's judgment and sentence were affirmed on appeal on July 6, 2012, with the mandate issuing on September 28, 2012. (Doc. 10-25, Exs. L, M). His June 15, 2016 state habeas petition was clearly filed more than two years after the judgment and sentence became final.

         Rule 9.141(d)(5) also provides that a movant can file a petition within four years of the date the judgment and sentence become final on direct review if the petition “alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel.” Rogers argued that this four-year period applied to him. But he only alleged that counsel misled him “with regard to the expected results of the appeal” by telling him that counsel had identified the “best issues, ” which led Rogers to believe “that he would be successful in overturning his conviction and sentences on direct review.” (Doc. 10-29, Ex. II, doc. p. 32) (emphasis added). He did not argue, with a specific factual basis, that counsel affirmatively misled him about the results of the appeal. Therefore, an application of Rule 9.141(d)(5) leads to the conclusion that Rogers's petition was disposed of as untimely.[5] Further, Rogers asked the appellate court to reconsider the time limit in his motion for rehearing, which the court denied. (Doc. 10-29, Exs. KK, LL).

         Other circumstances indicate that the state appellate court found the petition untimely. First, it was dismissed, not denied. See, e.g., Cantu v. State, 33 So.3d 145, 147 (Fla. 2d DCA 2010) (“The trial court's dismissal-rather than denial-of Cantu's motion to withdraw plea indicates that the trial court did not reach the merits of the motion.”). And the petition's filing date was noted in the court's very brief dismissal order, signaling the date's importance to its decision. Finally, the court dismissed the petition less than two weeks after it was filed, without obtaining an answer from the State. This quick resolution supports the conclusion that the court did not reach the petition's merits.

         In light of Florida law and the circumstances under which the state appellate court resolved Rogers's petition, this Court concludes that is more likely the state appellate court applied its established procedural bar, and did not adjudicate the claim on the merits. See Richter, 562 U.S. at 99-100. See also Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993) (“[W]e may not assume that had the state court issued an opinion, it would have ignored its own procedural rules and reached the merits of the case.”).

         The resolution of the claim on state procedural grounds results in a procedural default of Rogers's ineffective assistance of appellate counsel claim. Harris v. Reed, 489 U.S. 255, 262 (1989). Accordingly, Rogers's claim cannot be considered unless he meets either the cause and prejudice or fundamental miscarriage of justice exception. See id.

         Rogers relies on Martinez v. Ryan, 566 U.S. 1 (2012) in arguing that he meets the cause and prejudice exception. Martinez provides:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral ...

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