United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT
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.
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).
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).
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).
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.
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.
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.
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.
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;
(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.
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.
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
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).
Of State Remedies; Procedural Default
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.”).
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).
Assistance Of Counsel
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.
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
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.
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).
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). 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.
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
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)).
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)).
“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).
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
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.”).
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.
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.”).
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.
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 §
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).
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.
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. As Rogers does not cite any Supreme Court
decision involving materially indistinguishable 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.
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.
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.
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.
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. 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).
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.
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
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.
relies on Martinez v. Ryan, 566 U.S. 1 (2012) in
arguing that he meets the cause and prejudice exception.
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 ...