Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Month: November, 2012

Rozier v. United States, No. 11-13557: Eleventh Circuit Denies Habeas Relief Notwithstanding Government Concession

Florida’s criminal defense and criminal appeals attorneys who are familiar with the Eleventh Circuit’s reluctance to grant habeas relief will not be surprised to learn that, unfortunately, even if the Government concedes that relief should be granted, their clients may STILL not win on appeal.  The opinion of Rozier v. United States, No. 11-13557, is just the latest example.  At a mere 23 pages, which is quite short by Eleventh Circuit standards, the opinion is a great read because you can practically see the majority and the dissent pointing their fingers at eachother.   Unfortunately for Mr. Rozier, the end result of the opinion is that he has to serve time far beyond what his sentence would have been without the erroneous career offender enhancement.  See Rozier, slip op., pg. 14 (Hill, J., dissenting).

Judge Hill’s dissent is an absolute pleasure to read.  Rather than sum up the 9 page dissent for you, I thought I should just quote a particularly eloquent portion:

I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.  We have repeatedly held that procedural rules deprive us of the ability to correct an enhancement that we all agree is error because it was not authorized by law when imposed.  To the petitioner, who is serving five, ten or even fifteen years more than he would be in the absence of the error, we say, “Sorry.  We know your enhancement was error, but there is nothing we can do.  Our hands are tied by procedural rules.  We cannot fix this.”

We do this in the name of “finality.”  We say we are protecting the integrity of the Great Writ; we cannot go about correcting old mistakes or no conviction or sentence will ever be final.

Of course, finality is desirable.  There was a time when there appeared to be no finality in our habeas procedures.  The rules we adopted to introduce some finality into the habeas process were long overdue.

But finality must not be our highest goal.  The Great Writ is enshrined in our Constitution because we believe that no one may be deprived of life, liberty, or property by the government in violation of law.  If a petitioner can show that he is illegally incarcerated, he is entitled to release.  Fairness requires it.  Justice is the ultimate goal in the grant of the Writ.

But we have increasingly come to define what is “just” by what our procedural rules permit.  Recently, the State of Alabama, a panel of this court, and two justices of the Supreme Court agreed that an Alabama prisoner could be put to death as the result of his lawyers – who abandoned his case – having missed a filing deadline. Our court held that we would not – could not – consider the merits of his claim due to this procedural default.  I agree with the member of this panel who dissented in the Alabama case, writing that in certain cases procedure must “yield to the imperative of correcting a fundamentally unjust [sentence].”  Seven members of the Supreme Court agreed with that view, reversing our court.  See Maples v. Thomas, 132 S. Ct. 912 (2012).

In Maples, there was no certainty that there had been error in the conviction or sentence.  In Rozier’s case, however, there is certainty.  We know that the enhancement of his sentence was error.

I must confess I am bewildered that both the United States, through its Department of Justice, and this court appear to rejoice when access to constitutional protection for the correction of admitted and highly prejudicial error is found to be blocked by unmet procedural “safeguards.”  On the contrary, I should have thought that the correction of such error would be celebrated by all sworn to uphold the Constitution.  As is inscribed in the office rotunda of the Attorney General of the United States, “The United States wins its point whenever justice is done its citizens in the courts.” Some in the Department of Justice seem to believe that the inscription reads, “Justice is done when the United States wins.”

Clearly justice is not the intended beneficiary of these procedural safeguards.  On the contrary, the safeguards are designed to protect finality.  If these new rules require that finality trump justice, then perhaps, as one member of this panel has opined elsewhere, they are unconstitutional.  In any event, I cannot join in this elevation of form over substance; of finality over fairness.

Due process is the defining virtue of our system of criminal justice.  But we should ask ourselves why.  Is it because it achieves finality?  Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant.  The goal is a correct result – not simply the provision of process.  To be sure, we do not guarantee a correct result.  But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.

This is especially true where the petitioner is in federal custody, not state custody.  We safeguard finality for state court convictions out of respect for the dual principles of comity and federalism.  Neither of these considerations is due the erroneously sentenced federal prisoner.  It seems to me that the majority has striven mightily to avoid granting the writ to someone currently deprived of liberty in violation of law.  I am weary of our court’s relentless effort to put more and more procedural angels on the head of the habeas pin.  At some point, we must concede, as the Seventh Circuit did recently, that common sense and basic fairness require that we correct these unlawfully enhanced sentences. See Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011).

I respectfully dissent.

Florida’s Fourth DCA Denies Petition Seeking Review of Constitutionality of S.B. 1960; Third DCA Has Still Not Issued Decision

Since it’s cyber Monday, I’ll keep the post short so you can return to your holiday online shopping.

I am sorry to say that on November 19, 2012, the 4th DCA issued an order denying the petition in DelGaizo v. Chief Judge, Seventeenth Judicial Circuit, No. 4D12-2548.  Florida’s criminal defense and criminal appeals attorneys know that SB 1960, which was passed by the Florida Legislature this past summer, severely cut the fees that court appointed counsel can earn.  For my previous posts on the topic, click here and here.  Since no opinion was issued, we will never know the Court’s reasoning.  All that appears on the docket is an entry for an Order denying the Petition.

However, all hope is not lost.  The same issue remains pending in the 3rd DCA, in the matter of Markus v. Hon. Joel H. Brown, No. 3D12-2034.  According to the docket, the last activity was the Petitioner’s filing of the Reply in support of the petition for writ of certiorari, quo warranto, and prohibition, filed on October 22, 2012.  I’ll be sure to keep you posted of any developments.

United States Supreme Court to Decide Circuit Split In Case Involving Application of Plain Error Standard in Criminal Appeals:Henderson v. United States, No. 11-9307

Although the Court’s calendar is quiet for this Thanksgiving week, Florida’s criminal appeals attorneys might like to know that after Thanksgiving, the United States Supreme Court will be holding oral argument in a case involving the application of plain error standard in criminal cases where the law changes while the case is on appeal.  In Henderson v. United States, No. 11-9307, the question presented is:

Rule 52(b) of the Federal Rules of Criminal Procedure permits an appellate court to
correct a trial court’s “plain error” despite the lack of an objection in the trial
court.  In Johnson v. United States, 520 U.S. 461 (1997), this Court held that, when
the governing law on an issue is settled against the defendant at the time of trial
but then changes in the defendant’s favor by the time of appeal, “it is enough that
an error be ‘plain’ at the time of appellate consideration.”  Id. at 468.  Johnson did
not address the timing of plain-error review when the governing law on an issue is
unsettled at trial but clarified in the defendant’s favor while his appeal is pending.
The courts of appeals have split 5 to 3 on the question that Johnson left open. That
question, which this case squarely presents, is:
When the governing law is unsettled at the time of trial but settled in the
defendant’s favor by the time of appeal, should an appellate court reviewing for
“plain error” apply Johnson’s time-of-appeal standard, as the First, Second, Sixth,
Tenth, and Eleventh Circuits do, or should the appellate court apply the Ninth
Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have

Happy Thanksgiving!

Pagan v. State, No. 2D11-3804: Florida’s Second DCA Issues Opinion Touching On Issue of Plea Bargain Waivers of Claims of Ineffective Assistance of Counsel

On November 14, 2012, the Second DCA issued an opinion in Pagan v. State, No. 2D11-3804, wherein the court held that the trial court erred in summarily denying Pagan’s Rule 3.170(l) motion to withdraw his plea based on misleading advice of counsel.  According to the opinion, after Pagan was sentenced to 30 years for his involvement in the death of a child, Pagan moved to withdraw his plea.  The trial court appointed conflict free counsel to represent Pagan, and a hearing was set.  Just before the hearing commenced, the State offered Pagan a reduced sentence of 15 years in exchange for Pagan’s waiver of any right to seek collateral relief.  The court gave Pagan time to consult with his attorney, after which Pagan accepted the State’s offer.  The court resentenced him to the lesser term, remarking to Pagan that “you would be agreeing that you will withdraw this motion to withdraw your plea and you will also be agreeing that you will not file any further post-conviction motions attempting to reduce this sentence that I am about to impose.”  Later the court added: “And just to reiterate part of the deal is you will not be filing any more post-conviction motions.  This—this is it. You filed it.  It worked for you.”  After resentencing, Pagan filed several Rule 3.850 motions, alleging that he received ineffective assistance in connection with the State’s offer to resolve his rule 3.170(l) motion.  Predictably, the trial court denied each of his motions.  On appeal, the Second District reversed.

In support of its holding, the Court first noted that a Rule 3.170(l) motion is not a postconviction matter, and that a defendant is entitled to effective assistance of counsel in connection with such motion.  See Pagan, slip op., pg. 3.  The Court also observed that “a defendant can waive his right to collaterally attack his judgment and sentence when the waiver is expressly stated in the plea agreement and he knowingly and voluntarily agrees to the waiver.”  See Pagan, slip op., pg. 4 (citing Stahl v. State, 972 So. 2d 1013, 1015 (Fla. 2d DCA 2008); Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005)). However, “ineffective assistance of counsel claims attacking the advice received from counsel in entering into the plea and waiver cannot be waived.”  See Id.

While the opinion seems to have reached the right result by holding that Pagan did not waive his claim of ineffective assistance of counsel, it is troubling that the court’s opinion closed with a cautionary note:

We remand to the circuit court to conduct an evidentiary hearing on
Pagan’s allegations of ineffective assistance in connection with the agreement to
resolve his rule 3.170(l) motion. We caution that Pagan may subject himself to a worse
result if he goes forward with this process, but that is his decision to make.

Pagan, slip op. pg. 4.

I also find it troubling that the Court failed to address the obvious ethical issue presented by the opinion: whether a defendant can be offered a plea bargain that requires him or her to waive future claims of ineffective assistance of counsel (or prosecutorial misconduct)?  Florida’s criminal appeals and criminal defense attorneys may remember that this past August, the Professional Ethics Committee of the Florida Bar issued Proposed Ethics Advisory Opinion 12-1, which states that plea bargains which require defendants to waive future claims of prosecutorial misconduct or ineffective assistance of counsel violate Bar rules.

To view a few of the articles that appeared in the Florida Bar News regarding the Advisory Opinion, click here and here.  Although the Advisory Opinion has not yet been adopted by the Florida Bar Board of Governors, if there is no appeal of the proposed opinion, the Advisory Opinion will become final.

Florida Supreme Court News for the Week of November 5, 2012: Election Ballot Challenge to Justices Quince, Lewis and Pariente; Court Accepts Jurisdiction in Red Light Camera Cases, and JQC Charges Filed Against Palm Beach County Judge

This has been a busy week for the Florida Supreme Court.  The day before the election, on November 5, 2012, a Petition for Quo Warranto was filed seeking to have Justices Quince, Lewis, and Pariente disqualified from the ballot.  To read the petition in Jones v. Dentzner, No. SC12-2297, click here.  On November 8, 2012, the Supreme Court transferred the matter to the Circuit Court of the Second Judicial Circuit (Leon County).  For the docket, click here.

On November 6, 2012, the Supreme Court accepted jurisdiction in two cases challenging the constitutionality of red light cameras.  See Masone v. City of Aventura, No. SC12-644 and City of Orlando v. Udowychenko, No. SC12-1471.  This case may have implications for criminal defense attorneys who handle DUI cases, and for criminal appeals attorneys as well.

Finally, Palm Beach County criminal defense attorneys and prosecutors alike may be interested to know that the JQC has filed formal charges against County Court Judge Barry M. Cohen.  To read the petition, click here.


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