Jerome Burgess v. Walter A. McNeil , 357 F. App'x 206 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Oct. 23, 2009
No. 07-13147
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 04-00149-CV-J-32HTS
JEROME BURGESS,
Petitioner-Appellant,
versus
WALTER A. MCNEIL,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 23, 2009)
Before EDMONDSON, BIRCH and COX, Circuit Judges.
PER CURIAM:
Jerome Burgess appeals the denial of his 28 U.S.C. § 2254 petition for a writ
of habeas corpus. We consider the Petitioner’s arguments that his federal
constitutional rights to due process of law and the effective assistance of counsel were
violated when he was tried, convicted, and sentenced to life in prison for robbery with
a weapon, in violation of Florida law. We affirm the district court’s denial of the
petition.
I. BACKGROUND
Jerome Burgess, the Petitioner, was charged in Florida by information with
robbery with a weapon, in violation of Fla. Stat. § 812.13(1) & (2)(b). (R.1-36 at 3.)
The information identified the weapon as a firearm. Id. The Florida robbery statute
defines three crimes, two of which are first-degree felonies. The statute provides:
(1) “Robbery” means the taking of money or other property which may
be the subject of larceny from the person or custody of another, with
intent to either permanently or temporarily deprive the person or the
owner of the money or other property, when in the course of the taking
there is the use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a
firearm or other deadly weapon, then the robbery is a felony of the first
degree, punishable by imprisonment for a term of years not exceeding
life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If in the course of committing the robbery the offender carried a
weapon, then the robbery is a felony of the first degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.
(c) If in the course of committing the robbery the offender carried no
firearm, deadly weapon, or other weapon, then the robbery is a felony
of the second degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
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Fla. Stat. § 812.13. Burgess was charged with robbery with a weapon, in violation
of section 812.13(2)(b). The information alleged, however, that the weapon was a
firearm; robbery with a firearm violates section 812.13(2)(a).
At trial, the State put on evidence that Burgess had provided two other men
with guns and instructed them how to rob a particular motel. Burgess drove the men
to the motel, the two men entered the motel, and they used these guns to rob the
owner. Burgess himself did not enter the motel. He drove the getaway vehicle.
The trial court instructed the jury:
If you find that the defendant carried a firearm in the commission –
excuse me – in the course of committing the robbery, you should find
him guilty of robbery with a weapon.
If you find that the defendant carried no firearm or weapon in the course
of committing the robbery, but did commit the robbery, you should find
him guilty only of robbery.
A “firearm” is legally defined as a weapon which will or is designed to
expel a projectile by the action of an explosive.
(R.1-11, Ex. Folder 2, App. A-1 at 481.) There was no objection to these instructions.
The jury found Burgess “Guilty as charged of Principal to Robbery with a
weapon.” (R.1-11, Ex. Folder 1, App. A at 157.) According to the statute, robbery
with a weapon in violation of section 2(b) is a first degree felony, punishable by not
more than 30 years imprisonment. Fla. Stat. § 812.13(2)(b); Fla. Stat § 775.082. But,
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Burgess was sentenced to life imprisonment, a permissible sentence for robbery with
a firearm, in violation of section 2(a). At sentencing, Burgess’ lawyer objected to the
life sentence, stating that it was incorrect under Florida law and that the maximum
statutory penalty was 30 years in prison. (R.1-11, Ex. Folder 1, App. A at 232.)
II. PROCEDURAL HISTORY
Burgess appealed his conviction and sentence in the state courts arguing, in
addition to other things not relevant to this appeal, (a) that his sentence exceeded the
statutory maximum sentence for the offense of conviction and therefore was incorrect
under state law, and (b) that it violated the rule set forth in Apprendi v. New Jersey,
that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63
(2000). (R.1-11, Ex. Folder 3, App. B.) Burgess argued that the jury had not found
that he carried a firearm in the course of committing the robbery. (R.1-11, Ex. Folder
3, App. B at 13.) The State responded that Burgess had waived the Apprendi
argument by failing to make it at trial and sentencing but acknowledged that the
statutory maximum sentence for robbery with a weapon in violation of section 2(b)
was 30 years imprisonment. (R.1-11, Ex. Folder 3, App. C at 4-5.) The court of
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appeal affirmed Burgess’ conviction and sentence in a per curiam opinion that did not
provide reasoning for the decision. (R.1-11, Ex. Folder 3, App. D.)
Burgess then filed a Motion To Correct Illegal Sentence in the circuit court.
In May 2003, the circuit court issued its order, determining that the motion was
without merit and stating that Burgess “was convicted of a felony, punishable by life.
The Defendant was sentenced, as a prison releasee reoffender, to life, based on his
prior record, the date of his release from incarceration, and the facts of this case. The
sentence was lawful.” (R.1-11, Ex. Folder 3, App. G.). Burgess appealed, and the
State responded. In its response, the State conceded that Burgess’ conviction for
robbery with a weapon as a prison releasee reoffender should only subject him to 30
years imprisonment but argued that the law of the case doctrine prevented the court
from providing relief. (R.1-11, Ex. Folder 4, App. K at 2-3.) The State defined the
law of the case doctrine as “requir[ing] that questions of law actually decided on
appeal must govern the case in the same court and the trial court, through all
subsequent stages of the proceedings.” (Id.) The court of appeal affirmed without
opinion. (R.1-11, Ex. Folder 4, App. N.)
Burgess then sought post-conviction relief in Florida courts. (R.1-11, Ex.
Folder 4, App. Q.) He argued eight grounds for relief, including ineffective
assistance of counsel for failing to move to dismiss the information as duplicitous in
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that it charged more than one crime in a single count, failing to move for judgment
of acquittal on the ground that the State had failed to prove that the firearms used in
the crime were weapons under the statutory definition of weapon, and failing to
object to the jury instructions given by the court on the definition of robbery with a
weapon and the definition of a firearm as a weapon. (Id. at 2-5, 6-8, 8-11.) Burgess’
first motion for post-conviction relief did not cite Apprendi or present any argument
that his due process rights had been violated. The circuit court denied the motion,
finding the three ineffective assistance claims listed above meritless because,
“Defendant was tried for the correct charge and sentenced correctly, and the jury was
instructed correctly on the right charges.” (R.1-11, Ex. Folder 4, App. S at 2.) The
court of appeal affirmed without opinion. (R.1-11, Ex. Folder 4, App. U.) Burgess
appealed the denial of his first motion for post-conviction relief to the Supreme Court
of Florida. (R.1-11, Ex. Folder 4, App. CC.) That court dismissed the case on the
ground that it lacked jurisdiction. (R.1-11, Ex. Folder 4, App. DD.)
Burgess filed a second motion for post-conviction relief in which he argued,
among other things, that his counsel was ineffective for failing to assert an Apprendi
objection at his sentencing hearing. (R.1-11, Ex. Folder 4, App. X at 3.) The circuit
court denied the motion as a subsequent motion that was procedurally barred. (R.1-
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11, Ex. Folder 4, App. Y.) The court of appeal again affirmed without opinion. (R.1-
11, Ex. Folder 4, App. AA.)
Burgess then filed this 28 U.S.C. § 2254 petition in federal court. He asserted
nine grounds for relief, including the three ineffective-assistance-of-counsel claims
identified above and a claim that his life sentence violated Florida law. (R.1-34 at 3-
5, 19-21.) In briefs supporting the petition, Burgess argued both that the sentence
violated Florida law and that it violated his federal right to due process because the
jury did not find the use of a firearm, the fact that was used to enhance his sentence
to life in prison rather than 30 years. (R.2-55 at 4-5.)
The district court denied the petition. The court found that the Florida court’s
decision that the three ineffective assistance claims listed above are meritless
(because Burgess was tried for the correct charge, sentenced correctly, and the jury
was instructed correctly) did not constitute a decision contrary to clearly established
federal law or an unreasonable application of clearly established federal law or an
unreasonable determination of the facts of the case. (R.2-50 at 15-16.) In a later
order, addressing Burgess’ ninth claim to relief based on sentencing error, the district
court addressed the state law sentencing argument Burgess presented and concluded
that the error alleged was not a proper ground for federal habeas relief. (R.2-59 at 5-
7.) The district court found that any Apprendi argument was procedurally barred
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from review because Burgess did not raise it at his trial or sentencing. (Id. at 3.) But,
the district court addressed on the merits what it considered to be a different due
process argument–that the jury did not make the finding that a firearm was used in the
robbery–and held that Burgess’ due process rights were not violated because the
information charged robbery with “a weapon, to wit, a firearm;” the only proof at trial
of any weapon was proof that firearms were used; the jury was instructed that if it
found the use of a firearm, it should find guilt as to the charge of robbery with a
weapon; and the choice marked by the jury on the verdict form stated, “Guilty as
charged of Principal to Robbery with a weapon.” (Id. at 7-12.) Burgess appeals.
III. ISSUES ON APPEAL
The district court granted Burgess a certificate of appealability on his
sentencing error claim only. This court expanded the certificate of appealability to
include claims by Burgess that his counsel was ineffective for failing to move for
dismissal of the information on the ground that the robbery charge was duplicitous,
for failing to move for a judgment of acquittal, and for failing to object to the jury
instructions.1
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Burgess also argues that his counsel was ineffective in that he failed to argue that the information
was constructively amended by the proof at trial and the court’s instructions to the jury. We do not
address this argument, as it is beyond the scope of the certificate of appealability. See Murray v.
United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (holding that appellate review is limited to the
issues specified in the certificate of appealability).
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IV. STANDARDS OF REVIEW
We consider de novo the denial of habeas relief by the district court. Crowe
v. Hall, 490 F.3d 840, 844 (11th Cir. 2007) (citing McNair v. Campbell, 416 F.3d
1291, 1297 (11th Cir. 2005)). Burgess’ habeas petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996. Therefore, unless the
decision of the Florida court “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law, or (2)
resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in state court,” that decision will not be disturbed
on habeas review. Clark v. Crosby, 335 F.3d 1303, 1308 (11th Cir. 2003); 28 U.S.C.
§ 2254(d).
“‘Whether [Burgess] is procedurally barred from raising particular claims is a
mixed question of law and fact that we review de novo.’” Ogle v. Johnson, 488 F.3d
1364, 1368 (11th Cir. 2007) (quoting Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir.
1999)).
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V. DISCUSSION
A. Due Process
Burgess makes one argument regarding his sentence: that it violates his due
process rights because it is based on a finding not made by a jury beyond a reasonable
doubt, namely that a firearm was used in the robbery for which he was convicted.
The State responds that, though Burgess does not cite Apprendi, his argument is an
Apprendi argument that: (a) is procedurally barred because Burgess did not present
it at trial or sentencing; and (b) has no merit because the jury did find that a firearm
was used in the robbery.
We agree with the State that, though Burgess does not identify it as such, his
due process argument is an Apprendi argument. And, Burgess never raised this
argument at trial or sentencing. But, we do not conclude that this claim is
procedurally barred. Burgess presented the same federal constitutional claim that he
presents here to the Florida court of appeal, on direct appeal. That court affirmed
Burgess’ conviction and sentence in a per curiam opinion without reasoning.
Therefore, we presume that the court of appeal decided the issue on the merits.
Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043 (1989) (“[A] procedural
default does not bar consideration of a federal claim on either direct or habeas review
unless the last state court rendering a judgment in the case clearly and expressly states
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that its judgment rests on a state procedural bar.”) (quotations omitted). And, we
review the state court’s action to determine if it “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal
law, or (2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in state court.” Clark, 335 F.3d at 1308.
Considering Burgess’ due process claim under this standard, we find his
argument meritless. Burgess argues that his sentence was enhanced by the fact that
a firearm was used in the robbery, which fact was not found by the jury. We agree
with the district court, however, that the jury considered and determined, beyond a
reasonable doubt, that Burgess was guilty of carrying a firearm in the course of
committing the robbery. As the district court stated, the information charged Burgess
with robbery with a weapon, “to wit, a firearm;” at trial, the only proof of any weapon
was proof that the robbers carried two firearms; the jury was instructed that if it found
that the defendant carried a firearm in the course of committing the robbery, it should
find guilt as to the charge of robbery with a weapon; and the verdict choice marked
by the jury stated, “Guilty as charged of Principal to Robbery with a weapon.” There
was no violation of the Apprendi rule. The state court’s decision was not contrary to
clearly established federal law, did not involve an unreasonable application of clearly
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established federal law, and was not based on an unreasonable determination of the
facts.
B. Assistance of Counsel
Burgess argues that his counsel was ineffective because he failed to object to
the information as duplicitous in that it charged more than one crime (namely,
robbery with a weapon and robbery with a firearm) in a single count and therefore
failed to provide him with proper notice of the crime charged. Burgess also argues
that his counsel was ineffective in failing to move for acquittal where the State had
not proven that the firearms used in the robbery were weapons within the statutory
definition. And, Burgess argues that his counsel was ineffective in failing to object
to the jury instructions because they misstated the elements of the crime with which
he was charged. Specifically, Burgess argues that the jury instructions incorrectly
allowed the jury to find him guilty of robbery with a weapon if the jury found that a
firearm was used in the robbery. These arguments are based on Burgess’ contention
that the statutory definition of weapon excludes a firearm. See Fla. Stat. §
790.001(13) (“‘Weapon’ means any dirk, knife, metallic knuckles, slungshot, billie,
tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or
a common pocketknife, plastic knife, or blunt-bladed table knife.”).
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In response to all of Burgess’ ineffective assistance claims, the State argues
that the state court’s finding that Burgess’ counsel did not perform deficiently is
entitled to deference because it does not conflict with or unreasonably apply federal
law. The State argues that the information charged Burgess with one crime only –
principal to robbery with a weapon. And, the State argues that, under Florida law, a
firearm is a weapon. In support of this, the State cites: (a) Fla. Stat. § 790.001(6),
defining firearm as “any weapon (including a starter gun) which will, is designed to,
or may readily be converted to expel a projectile by the action of an explosive;” (b)
Dale v. State, 703 So. 2d 1045, 1046 (Fla. 1997), holding that the definitions for
firearm and weapon in the Florida Standard Jury Instructions are correct statements
of the law; and (c) The Florida Standard Jury Instructions In Criminal Cases which
define a weapon as “any object that could be used to cause death or inflict serious
bodily harm.” Fla. Std. Jury Instr. (Crim.) 15.1. Therefore, the State argues, there
was no deficient performance by Burgess’ counsel in not moving for acquittal on this
ground or in not objecting to the jury instructions.
All three of Burgess’ ineffective-assistance-of-counsel claims presented to this
court fail. As the district court recognized, they do so for one reason: because, in
response to Burgess’ first motion for post-conviction relief, the circuit court found
that there was no error under state law in the manner in which Burgess was charged,
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in the jury instructions, or in the sentence. (See R.1-11, Ex. Folder 4, App. S at 2.)
(“Defendant was tried for the correct charge and sentenced correctly, and the jury was
instructed correctly on the right charges.”) That decision was affirmed by the court
of appeal. While the affirmance was a per curiam opinion without reasoning, we
presume that the court of appeal’s decision affirms the reasoning, as well as the
judgment of the circuit court. “‘Where there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders upholding that judgment or
rejecting the same claim rest upon the same ground.’” Sweet v. Sec’y, Dept. of Corrs.,
467 F.3d 1311, 1316-1317 (11th Cir. 2006) (quoting Ylst v. Nunnemaker, 501 U.S.
797, 803, 111 S. Ct. 2590, 2594 (1991)); see also Harmon v. Barton, 894 F.2d 1268,
1273 (11th Cir. 1990) (noting that the “clear inference” to be drawn from a per curiam
affirmance without written opinion is that the appellate court “accepted not only the
judgment but the reasoning of the trial court.”).
Given the state courts’ holdings, Burgess cannot make the showings required
under federal law to demonstrate ineffective assistance. Under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), a defendant claiming ineffective
assistance of counsel must show both that counsel’s performance was deficient and
that the deficient performance prejudiced the defense. Id. at 687, 104 S. Ct. at 2064.
If the charging document, jury instructions, and sentence were all correct under
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Florida law, as the Florida courts have told us they were, Burgess’ counsel’s
performance in failing to challenge the charging document, the jury instructions, or
the state’s proof cannot be considered deficient. Ladd v. Jones, 864 F.2d 108, 110
(11th Cir. 1989) (holding where “claims were meritless, it was clearly not ineffective
for counsel not to pursue them.”). These findings also mean that Burgess cannot
show that he suffered prejudice resulting from his attorney’s performance. See
Lockhart v. Fretwell, 506 U.S. 364, 374, 113 S. Ct. 838, 845 (1993) (“the court
making the prejudice determination may not consider the effect of an objection it
knows to be wholly meritless under current governing law . . . .”) (O’Connor, J. concurring).
Burgess is correct that the information was confusing in that it cited Fla. Stat.
§ 812.13(2)(b) (robbery with a weapon) but identified the weapon as a firearm. It
appears to this court that the information should have cited Fla. Stat. § 812.13(2)(a)
(robbery with a firearm) instead. In an effort to address the confusing information,
the State argues that a firearm is a weapon under Florida law. That argument,
however, does not explain the fact that Burgess was sentenced to life in prison even
though the statutory maximum penalty for robbery with a weapon in violation of
section 812.13(2)(b) is 30 years imprisonment. But, the propriety of the sentence,
under Florida law—which Burgess’ counsel did object to—is not before us in this
appeal.
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The Florida courts have determined that the errors Burgess alleges do not exist.
Whether we agree with the state courts’ assessment regarding the correctness of the
charging document, jury instructions, or sentence is irrelevant. Our review is limited
to determining whether the state courts reached a result contrary to or involving an
unreasonable application of clearly established federal law or an unreasonable
determination of the facts. The state courts’ decision that Burgess’ right to counsel
was not violated rests on interpretation of Florida law. It does not conflict with or
unreasonably apply any federal law. And, it is not based upon an unreasonable
factual finding.
VI. CONCLUSION
For these reasons, federal habeas corpus relief is not available to Burgess. The
district court properly denied the petition.
AFFIRMED.
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