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Combs v. Secretary, Department of Corrections

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

October 7, 2019

SEAN COMBS, Applicant,
SECRETARY, Department of Corrections, Respondent.



         Combs applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges his convictions for both sexual battery and burglary with an assault or battery, for which convictions Combs is imprisoned for consecutive, ten-year sentences. Numerous exhibits (“Respondent's Exhibit___ ”) support the response. (Doc. 17) The respondent admits the application's timeliness (Doc. 17 at 2) and correctly argues that some grounds are unexhausted and procedurally barred from federal review.

         I. BACKGROUND[1]

         Combs and the victim shared a turbulent - sometimes violent - intermittent relationship for nearly a year before they had intimate relations on June 10, 2008. The post-conviction court described the events before the incident as follows (Respondent's Exhibit 18 at 14):

In the present case, the evidence of the Defendant's actions in June 2008 (frightening and chasing the victim, being chased off by the neighbor, lurking around or attempting to break into her apartment), the victim's reports to law enforcement, the issuance of a trespass warning by law enforcement, and the Defendant's threatening and harassing text messages to the victim in the days leading up to the crime were relevant to prove the material facts of the Defendant's intent to commit the crimes and the absence of the victim's consent for him to enter her property.

         The victim alleged that the incident was a burglary and a rape; Combs's defense was that the incident was consensual.

         Combs was charged with burglary with an assault or battery and sexual battery with use of force likely to cause serious injury. A jury found Combs guilty of both the charged burglary and the lesser included sexual battery without use of force. The state circuit court sentenced Combs to imprisonment for consecutive terms of ten years for both counts followed by probation for five years. The state district court summarily affirmed the convictions and sentences. Combs v. State, 61 So.3d 1122 (Fla. 2DCA 2011). Combs unsuccessfully challenged his convictions and sentences in two motions under Rule 3.850, Florida Rules of Criminal Procedure, for post-conviction relief and the subsequent appeal from each motion. Combs was afforded an extensive evidentiary hearing on the motion for post-conviction relief, which the state court denied with a detailed order.[2] The respondent argues that some grounds for relief in the present application are procedurally barred from federal review because Combs never presented the claim to the state courts, because Combs failed to assert the ground on appeal from the denial of the first Rule 3.850 motion, or because the ground was asserted in the untimely second Rule 3.850 motion.


         The respondent argues that Grounds 3, 11-13, 15, and 17 are procedurally barred from federal review, primarily because Combs failed to fully exhaust his available state court remedies. An applicant must present each claim to a state court before raising the claim in federal court. “[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), Picard v. Connor, 404 U.S. 270, 275 (1971). Accord Rose v. Lundy, 455 U.S. 509, 518S19 (1982) (“A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.”).

         Ground 3

         Combs alleges both that the prosecution violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), and that trial counsel rendered ineffective assistance by neither conducting a sufficient investigation nor understanding the right to confront his accuser as explained in Davis v. Alaska, 415 U.S. 308 (1974). Combs did not assert his Brady/Giglio claim until his second Rule 3.850 motion for post-conviction relief. (Respondent's Exhibit 24 at 21-27) The post-conviction court ruled that the asserted claim did not qualify as “newly discovered evidence” and rejected the claim as “both untimely and successive.” (Respondent's Exhibit 25 at 4) Combs's untimely presentation of the substantive Brady/Giglio claim to the state courts fails to meet the exhaustion requirement. “[W]here the claim has been presented for the first and only time in a procedural context in which its merits will not be considered [absent a special circumstance, r]aising the claim in such a fashion does not, for the relevant purpose, constitute ‘fair presentation.'” Castille v. Peoples, 489 U.S. 346, 351 (1989).

         The respondent correctly argues that Combs never presented to the state court the claim of ineffective assistance of counsel based on an alleged violation under Brady/Giglio and Davis. (Doc. 17 at 10-12) In reply (Doc. 28 at 6-7), Combs argues that the claim was addressed during the evidentiary hearing on the first Rule 3.850 motion as a part of the claim of ineffective assistance of counsel alleged in Ground 2. Accepting his contention that he previously presented the underlying facts as part of Ground 2, Combs did not, however, assert a claim based on a violation under Brady/Giglio and Davis. Consequently, Combs exhausted neither the substantive claim nor the ineffective assistance of counsel claim in Ground 3. See Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983) (“The exhaustion requirement is not satisfied if a petitioner presents new legal theories or entirely new factual claims in support of the writ before the federal court.”).

         Grounds 11-13

         Combs alleges that trial counsel rendered ineffective assistance (1) by not moving for a mistrial based on a juror sleeping during the trial (Ground 11), (2) by neither rehabilitating nor striking a biased juror (Ground 12), and (3) by not noticing the expiration of the statutory time for a speedy trial (Ground 13). Combs asserted each claim in his first Rule 3.850 motion. (Respondent's Exhibit 11) The post-conviction court (1) summarily denied Ground 11 because the allegedly sleeping juror was an alternate and was dismissed without participating in the jury's deliberations (Respondent's Exhibit 12 at 6); (2) summarily denied Ground 12 as refuted by the record because the venireman never expressed bias toward the judge (the venireman had treated the judge as a physical therapist) and because that judge conducted only the jury selection and not the trial (Respondent's Exhibit 12 at 8-9); and (3) denied Ground 13 as refuted by the record because the trial started on the last day of the statutory fifteen-day “recapture period” (Respondent's Exhibit 15 at 1-2).

         Combs appealed the denial of post-conviction relief but he failed to “fairly present” these three claims to the state court by not briefing each claim in his opening brief. In the table of contents for his opening brief Combs listed as a claim that the trial court erred “by summarily denying grounds 1, 7, and 11 . . . without an evidentiary hearing, ” (Respondent's Exhibit 19 at i), which are the three claims asserted in Grounds 11-13 of the federal application. Other than being listed in the table of contents, Combs presented to the state court no further discussion or argument in support of these claims. Under state law simply listing a claim fails to present the claim for appellate review, as Heath v. State, 3 So.3d 1017, 1029 n. 8 (Fla. 2009), explains: “Heath has waived his cumulative-error claim because his brief includes no argument whatsoever and instead consists of a one-sentence heading in his brief.” Accord Smith v. State, 151 So.3d 1177, 1182, n.3 (Fla. 2DCA 2014) (“[W]e hold that Smith's assertion of ineffective assistance under this claim - and any other claim where ineffectiveness is solely referenced in the heading - is waived.”) (citing Heath.). Combs failed to properly exhaust his state court remedies for Grounds 11-13.

         Moreover, even if he had “fairly presented” his claim to the state courts, the claim fails to assert the violation of a federally protected right. Combs argues that the state post-conviction court violated state law when it denied his Rule 3.850 motion without granting him an evidentiary hearing and without attaching portions of the record that conclusively refute his entitlement to relief. (Doc. 19 at i) A defect in a state collateral proceeding provides no basis for habeas relief. See Carroll v. Sec'y, Dep't of Cor., 574 F.3d 1354, 1365 (11th Cir. 2009) (holding that a habeas applicant's claim - the state court violated his due process rights when it summarily denied his post-conviction claim without an evidentiary hearing - did not state a claim on which a federal court may grant habeas relief); Anderson v. Sec'y for Dep't of Corr., 462 F.3d 1319, 1330 (11th Cir. 2006) (“We have held the state court's failure to hold an evidentiary hearing on a petitioner's 3.850 motion is not a basis for federal habeas relief.”); Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004) (“[W]hile habeas relief is available to address defects in a criminal defendant's conviction and sentence, an alleged defect in a collateral proceeding does not state a basis for habeas relief.). A challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment - that is, the conviction itself - and thus habeas relief is not an appropriate remedy. See Carroll, 574 F.3d at 1365; Quince, 360 F.3d at 1261-62. Furthermore, a state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief because no question of a constitutional nature is involved. See Carroll, 574 F.3d at 1365.

         Ground 15

         Combs alleges that his “Fifth, Sixth, and Fourteenth Amendment Rights as secured by the United States Constitution” were violated because the trial court denied the defense a continuance. Combs presented a similar claim as his first issue on direct appeal but he presented that issue as an abuse of discretion under state law and not as the violation of a federally protected right. The failure to alert the state appellate court that the trial court allegedly violated a federally protected right fails to meet the exhaustion requirement. As Baldwin v. Reese, 541 U.S. 27, 32 (2004), explains, an applicant must alert the state court that he is raising a federal claim and not just a state law claim.

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.”

         As a consequence, “[i]t is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982). See also Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004) (“The exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.”) (citations omitted); Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) (“[T]he applicant must have fairly apprised the highest court of his state with the appropriate jurisdiction of the federal rights which allegedly were violated.”). An applicant must present to the state court the same claim presented to the federal court. Picard v. Connor, 404 U.S. at 275 (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). “Mere similarity of claims is insufficient to exhaust.” Duncan v. Henry, 513 U.S. at 366.

         Ground 17

         Combs alleges that “the cumulative effect of trial court and defense counsel's combined errors . . . prejudice[d the] defense” in violation of his “Sixth Amendment rights.” (Doc. 1 at 74) The respondent correctly argues (Doc. 17 at 44) that Combs failed to present to the state courts a singular claim based on the cumulative effect of the combined errors of both the trial court and defense counsel. Although he is correct that he presented separate cumulative effect claims on direct appeal and in the post-conviction proceedings, Combs did not present to the state courts a cumulative effect claim based on the combined errors of both the trial court and defense counsel. Consequently, the combined effect claim asserted in Ground 17 is unexhausted.

         * * * *

         The failure to properly exhaust each available state court remedy causes a procedural default of the unexhausted claim. 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.”). See also Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (“[W]hen it is obvious that the unexhausted claims would be procedurally barred in state court due to a state-law procedural default, we can forego the needless ‘judicial ping-pong' and just treat those claims now barred by state law as no basis for federal habeas relief.”).

         As determined above, Grounds 3, 11-13, 15, and 17 are procedurally defaulted and, as a consequence, each is barred from federal review absent a showing of “actual cause and prejudice” or “manifest injustice.” Coleman v. Thompson, 501 U.S. 72, 29-30 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986). “Cause” must ordinarily be something external to the defense. Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995). To show “prejudice, ” the petitioner must show “not merely that the errors at his trial created the possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (emphasis original) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).

         To meet the fundamental miscarriage of justice exception, Combs must show constitutional error coupled with “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). This exception is not available unless “petitioner shows, as a factual matter, that he did not commit the crime of conviction.” Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995) (denying a certificate of probable cause).

         Combs fails to establish either cause and prejudice or a fundamental miscarriage of justice. Therefore, Grounds 3, 11-13, 15, and 17 are procedurally barred from federal review and not entitled to a determination on the merits. Grounds 1, 2, 4-10, 14, and 16 are entitled to a review on the merits.


         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal review of a state court adjudication, states in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(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.

         In Williams v. Taylor, 529 U.S. 362, 412S13 (2000), the Supreme Court interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied - the state-court adjudication resulted in a decision that (1) “was contrary to . . . clearly established Federal Law, as determined by the Supreme Court of the United States” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

         “The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, . . . an unreasonable application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “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.” Harrington v. Richter, 562 U.S. 86');">562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical point is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement' on the question . . . .”) (citing Richter); Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (“And an ‘unreasonable application of' those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.”) (citing Woodall, 134 S.Ct. at 1702). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide.”). The phrase “clearly established Federal law” encompasses only the holdings of the United States Supreme Court “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. at 412.

         The purpose of federal review is not to re-try the state case. “The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order 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. at 694. A federal court must afford due deference to a state court's decision. “AEDPA prevents defendants - and federal courts - from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to meet,' . . . and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt' . . . .”) (citations omitted).

         When the last state court to decide a federal claim explains its decision in a reasoned opinion, a federal habeas court reviews the specific reasons as stated in the opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.”). When the relevant state-court decision is not accompanied with reasons for the decision, 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, 138 S.Ct. at 1192. The State may contest “the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision . . . .” Wilson, 138 S.Ct. at 1192.

         In a per curiam decision without a written opinion the state appellate court on direct appeal affirmed Combs's convictions and sentence. (Respondent's Exhibit 10) Similarly, in other per curiam decisions without a written opinion the state appellate court affirmed the denial of Combs's subsequent Rule 3.850 motions to vacate. (Respondent's Exhibits 22 and 27) The state appellate court's per curiam affirmances warrant deference under Section 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.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 131 S.Ct. at 784S85 (“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.”), and Bishop v. Warden, 726 F.3d 1243, 1255S56 (11th Cir. 2013) (describing the difference between an “opinion” or “analysis” and a “decision” or “ruling” and explaining that deference is accorded the state court's “decision” or “ruling” even absent an “opinion” or “analysis”).

         As Pinholster, 563 U.S. at 181-82, explains, review of the state court decision is limited to the record that was before the state court:

We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that “resulted in” a decision that was contrary to, or “involved” an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time, i.e., the record before the state court.

         Combs bears the burden of overcoming by clear and convincing evidence a state court's fact determination. “[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court's rejection of Combs's post-conviction claims warrants deference in this case. (Order Denying Motion for Post-Conviction Relief, Respondent's Exhibits 12, 17, 18 and 25) The remaining grounds in Combs's federal application present the same claims of ineffective assistance of counsel that were presented to the state courts.

         Trial Court Error - Ground 14

         Combs alleges that the trial court violated his rights under the Confrontation Clause, as applied by Crawford v. Washington, 541 U.S. 36 (2004), by not suppressing “10 days worth of text messages between [the] victim and Petitioner” based on the lack of a proper predicate through a records custodian from the telephone company. (Doc. 1 at 71) Instead, the trial court allowed the prosecution to introduce the text messages into evidence through the victim. Combs alleges that he was prejudiced because the prosecutor “dedicated his entire rebuttal closing argument to reading these texts to the jury” without requiring the prosecutor to lay a proper foundation. (Doc. 1 at 71)

         The respondent correctly argues that Crawford is inapplicable because the text messages were not “testimonial hearsay statements.” (Doc. 17 at 38-40) Crawford, 541 U.S. at 68, identifies “testimonial” evidence as “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations.” The text messages (exchanges between the victim and Combs) fail to qualify as “testimonial.”

         Moreover, the declarant of some of the texts - the victim - was subjected to cross-examination by Combs at trial; Combs was the declarant for the remainder of the texts. As a consequence, no confrontation violation occurred by admitting the text messages into evidence. The state court's permitting the prosecution to introduce the text message through the victim - without a custodian of records from the telephone company - was neither contrary to nor an unreasonable application of controlling law as established by the Supreme Court.


         Combs claims ineffective assistance of counsel, a difficult claim to sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, first, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Strickland requires proof of both deficient performance and consequent prejudice. See Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” 466 U.S. at 690.

         Combs 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.” 466 U.S. at 691. To meet this burden, Combs must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been ...

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