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Colbert v. Secretary, Department of Corrections

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

September 3, 2019

JEFFREY RICARDO COLBERT, Applicant,
v.
SECRETARY, Department of Corrections, Respondent.

          ORDER

          STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE

         Colbert applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 5) and challenges both the revocation of his probation and his sentence to ten years imprisonment. Numerous exhibits (“Respondent's Exhibit __”) support the response. (Doc. 18) The respondent admits the application's timeliness (Response at 10, Doc. 18) but argues that some grounds are barred from federal review.

         I. BACKGROUND

         In 2008, in exchange for a sentence of twenty-four months of drug offender probation, Colbert pleaded guilty to possession of cocaine, with the intent to deliver, within 1000 feet of a school. Four months later he violated seven conditions of probation but was allowed to remain on probation. In 2009 Colbert was charged with both delivery of cocaine within 1000 feet of a school and possession of cocaine (“new charges”). Following a contested evidentiary hearing, the state circuit court revoked Colbert's probation and sentenced him to ten years imprisonment. In 2010 a jury convicted Colbert of the new charges and the court sentenced him to six years imprisonment consecutive to the ten-year sentence for the probation revocation.

         II. GROUNDS DEFAULTED IN STATE COURT

         Colbert asserts five grounds for relief in his application. Four of the grounds are not, however, entitled to a review on the merits. Colbert failed to properly present to the state courts the federal claims in grounds one, two, four, and five. “[E]xhaustion of state remedies requires that petitioners ‘fairly presen[t]' federal claims to the state courts in order to give the State the ‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).

         Ground One:

         Colbert alleges that the trial court erred by revoking his probation based on inadmissible evidence. A confidential informant was wired for sound and video when she purchased cocaine from Colbert, which drug transaction formed the basis for the new charges. Colbert contends (1) that the video recording was inadmissible for lack of a proper foundation, including authentication under Section 90.901, Florida Statutes, and (2) that all of the state's evidence was inadmissible hearsay. On direct appeal Colbert argued that the trial court abused its discretion by revoking probation based on the allegedly inadmissible evidence. Although now characterized as a violation of his federal rights, Colbert presented his claim to the appellate court only as a state law issue. (Respondent's Exhibit 4)

         Federal habeas relief is available to correct only constitutional injury. Under Section 2254(a), “a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” See also Engle v. Isaac, 456 U.S. 107, 121 n.21 (1981) (“[A] ‘mere error of state law' is not a denial of due process.”). Briefing an issue as a matter of state law is not sufficient to exhaust a federal claim on the same grounds, as Duncan v. Henry, 513 U.S. 364, 365S66 (1995), explains:

If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.

Accord Baldwin v. Reese, 541 U.S. 27, 32 (2004) (“A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.'”). Federal review of ground one is barred because Colbert failed to “fairly present” his federal claim to the state courts.

         Ground Two:

         Colbert alleges that counsel rendered ineffective assistance by improperly advising him when he pleaded guilty in 2008 that the maximum possible imprisonment was twenty-four months - the same duration as the drug offender probation - if probation was ever revoked. Colbert first raised this claim in his second motion for post-conviction relief. (Respondent's Exhibit 12 at 6) The state court rejected the claim as untimely. (Respondent's Exhibit 13 at 5)

         Colbert's failure to timely present the claim to the state court bars federal review. See O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999) (“Boerckel's failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims.”). In rejecting the untimely claim, the state court chose not to address the merits of the claim; federal review would remain barred even if the state court had addressed the merits. “[W]here a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim.” Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.), cert. denied, 513 U.S. 1061 (1994). Federal review of ground two is barred because Colbert failed to timely present the claim to the state courts.

         Grounds Four and Five:

         Colbert alleges that counsel rendered ineffective assistance (1) by not objecting to the revocation of probation based on the new charges before disposition of the new charges (ground four), which claim he presented to the state court in his second motion for post-conviction relief (Respondent's Exhibit 12 at 9), and (2) by not objecting to a sentence that departed from the guidelines absent the sentencing court's written statement of reasons, which claim he presented to the state court in his first motion for post-conviction relief (Respondent's Exhibit 10 at 9) The state post-conviction court denied both claims on the merits. (Respondent's Exhibit 13 at 9 (ground four) and Exhibit 11 at 5 (ground five)) Colbert asserted neither ground in his brief on appeal. (Respondent's Exhibit 16) A claim is unexhausted and procedurally defaulted if not raised on appeal. “The Supreme Court of Florida followed its well-established rule when it concluded that Doorbal's claim of ineffective assistance of counsel was waived because he failed to present an argument about the merits of that issue on appeal . . . .” Doorbal v. Dep't of Corr., 572 F.3d 1222 (11th Cir.), cert. denied, 558 U.S. 1030 (2009). See also Upshaw v. ...


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