Tharas E. Moore v. Florida Department of Corrections

Case: 14-14188 Date Filed: 12/08/2015 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 14-14188

D.C. Docket No. 1:10-cv-21528-ASG

THARAS E. MOORE,

Petitioner - Appellant,

versus

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent - Appellee.

Appeal from the United States District Court
for the Southern District of Florida

(December 8, 2015)

Before MARCUS and JILL PRYOR, Circuit Judges, and RESTANI, * Judge.

PER CURIAM:

*
Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by
designation.
Case: 14-14188 Date Filed: 12/08/2015 Page: 2 of 7

Tharas Moore (“Moore”), a Florida state prisoner who pleaded guilty in four

separate, consolidated cases, appeals through counsel the district court’s denial of

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Upon careful review and

with the benefit of oral argument, we affirm.

On May 8, 2001, Moore, having entered into a consolidated plea agreement

with the State Attorney for Miami-Dade County, Florida, pleaded guilty in the

Miami-Dade County Circuit Court (“Circuit Court”) to four informations charging

him with various criminal offenses, including robbery, burglary, aggravated

assault, possession of a firearm by a violent career criminal, and battery on a law-

enforcement officer. He was sentenced to concurrent prison terms totaling twenty

years. The judgment in each of the four cases stated:

The defendant in Open Court was advised of his right to appeal from
this sentence by filing notice of appeal within thirty days from this
date with the Clerk of this Court, and the defendant’s right to the
assistance of counsel in taking said appeal at the expense of the State
upon showing indigence.1

DE 13-5 at 5; DE 13-8 at 5; DE 13-11 at 3; DE 13-14 at 3. Moore was

subsequently resentenced in three of his cases. Moore contends that, contrary to

this recital in the four judgments, the Circuit Court did not actually inform him of

1
This statement was required by Florida Rule of Criminal Procedure 3.986, which prescribes the
“Forms Related to Judgment and Sentence.”

2
Case: 14-14188 Date Filed: 12/08/2015 Page: 3 of 7

his right to appeal his sentences. 2 He asserts that it was only at one of his

resentencing hearings, on December 24, 2008, that he learned of his right to appeal

when the Circuit Court informed him that he had a right to appeal the sentence

within thirty days.

In November 2009, Moore petitioned the Florida Third District Court of

Appeal (“Third DCA”), pursuant to Florida Rule of Appellate Procedure 9.141, for

a writ of habeas corpus granting him a belated appeal in each of the four cases.

Moore’s petition, filed under oath, stated that he was entitled to belated appeals in

the four cases because the Circuit Court failed to inform him of his right to appeal

and that such failure denied him the due process and equal protection of the law

guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States

Constitution. The Third DCA summarily denied Moore’s petition and subsequent

motion for rehearing. Moore v. State, 23 So.3d 1193, 1193 (Fla. Dist. Ct. App.

2010).

2
In Florida, the right of a defendant convicted pursuant to a plea of guilty to appeal is
circumscribed by Florida Rule of Appellate Procedure 9.140, which, in relevant part, states:

A defendant who pleads guilty . . . may otherwise directly appeal only
(a) the lower tribunal’s lack of subject matter jurisdiction;
(b) a violation of the plea agreement, if preserved by a motion to withdraw plea;
(c) an involuntary plea, if preserved by a motion to withdraw plea;
(d) a sentencing error, if preserved; or
(e) as otherwise provided by law.

Fla. R. App. P. 9.140(b)(2)(A)(ii).
3
Case: 14-14188 Date Filed: 12/08/2015 Page: 4 of 7

On May 11, 2010, Moore petitioned the United States District Court for the

Southern District of Florida for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, claiming that both the Circuit Court’s failure to inform him of his right to

appeal his sentences and the Third DCA’s denial of his petition for belated appeals

operated to deny him due process of law. The district court denied the petition on

August 28, 2014.3 In doing so, the district court assumed Moore was not informed

of his right to appeal, but agreed with the State that the Third DCA properly denied

Moore’s petition for a belated appeal as time-barred. 4 The district court also

determined that contrary to Moore’s argument, Peguero v. United States, 526 U.S.

23 (1999), “does not establish an overarching constitutional rule that courts must

3
This was in fact the second time the district court denied Moore’s petition. The district court
originally denied the petition because the judgments in each of Moore’s state cases indicated that
he was informed of the right to appeal. Moore appealed and we vacated and remanded, holding
that the district court could not have given meaningful review without the transcripts from
Moore’s plea colloquy and sentencing hearing. See Moore v. Sec’y Fla. Dep’t of Corr., 486 F.
App’x 810, 811–12 (11th Cir. 2012) (unpublished). We ordered the State to “produce the plea
colloquy and sentencing hearing transcripts prior to considering the [merits] of Moore’s claim.”
Id. The transcripts could not be located.
4
The rule governing belated appeals in Florida at the time of Moore’s petition was Florida Rule
of Appellate Procedure 9.141(c)(4)(A), which provided that such a belated appeal

shall not be filed more than 2 years after the expiration of time for filing the
notice of appeal . . . unless it alleges under oath with a specific factual basis that
the petitioner (i) . . . was not advised of the right to an appeal . . .; and (ii) should
not have ascertained such facts by the exercise of reasonable diligence.

In denying Moore’s petition, the district court cited Florida Rule of Appellate Procedure
9.141(c)(5)(A), rather than 9.141(c)(4)(A). Rule 9.141(c)(5)(A) is currently in effect and
includes a four-year as well as a two-year limitation for belated appeals. Fla. R. App. P.
9.141(c)(5)(A) (“In no case shall a petition for belated appeal be filed more than 4 years after the
expiration of time for filing the notice of appeal.”). The district court correctly held that Moore
had not satisfied either the two or four year limits.
4
Case: 14-14188 Date Filed: 12/08/2015 Page: 5 of 7

advise defendants of their right to appeal.” DE 62 at 8 n.8. 5 The district court

granted Moore a certificate of appealability (“COA”) on the following issue:

[W]hether the State of Florida violated Moore’s due process rights by
failing to advise him of his right to appeal his sentence at his May 8,
2001 sentencing hearing and summarily denying his request for a
belated appeal when the request was filed more than two years after
the expiration of time for filing the notice of appeal and did not state
that Moore could not have ascertained such facts by the exercise of
reasonable diligence, and when the request was filed more than four
years after the expiration of time for filing the notice of appeal.

DE 62 at 8.

II.

We review a district court’s denial of a 28 U.S.C. § 2254 petition de novo.

McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Under 28 U.S.C.

§ 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996,

a federal court may grant a state prisoner a writ of habeas corpus when his federal

constitutional claim has been “adjudicated on the merits in State court” if 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.

5
We agree with the district court that Peguero v. United States, 526 U.S. 23 (1999), did not
establish a constitutional rule applicable to the factual setting presented by this case.
5
Case: 14-14188 Date Filed: 12/08/2015 Page: 6 of 7

28 U.S.C. § 2254(d).

Although the Third DCA denied Moore’s petition for belated appeal and

motion for rehearing summarily, the Third DCA adjudicated his claim on the

merits. See Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348, 1353 (11th Cir. 2012)

(holding that a per curiam affirmance without an opinion is an adjudication on the

merits absent a statement by the state court that the decision was based solely on a

state procedural rule); see also Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013);

Harrison v. Richter, 562 U.S. 86, 99 (2011). As there was no indication that the

decision was based solely on a state procedural bar, the Third DCA’s decision is

entitled to deference. See Shelton, 691 F.3d at 1353. When a state court

summarily denies a claim, a federal court will grant habeas only if there is no

reasonable explanation for the state court’s decision. See Harrison, 562 U.S. at 98.

In Griffin v. Illinois, the Supreme Court held that although states are not

required by the U.S. Constitution to provide the right to appellate review, once

states grant such a right, the Equal Protection and Due Process Clauses apply. 351

U.S. 12, 18–20 (1956). Florida provides a right to appeal and requires its judges,

after sentencing a defendant, to inform the defendant personally, in open court, of

the right to appeal. Fla. R. App. P. 9.140; Fla. R. Crim. P. 3.986. If a judge fails to

so inform the defendant, the defendant has two years in which to petition the court

in which the appeal would lie for a belated appeal. See Fla. R. App. P. 9.141(c)(4).

6
Case: 14-14188 Date Filed: 12/08/2015 Page: 7 of 7

If more than two years have passed, Florida requires defendants to have exercised

reasonable diligence in attempting to ascertain whether they had the right to

appeal. Id. There is no controlling Supreme Court precedent holding that such

rules do not provide adequate relief when a defendant is not informed of his right

to appeal as required by state law. 6 Where there is no on point Supreme Court

precedent, a state court’s conclusion cannot be contrary to clearly established

Federal law. Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003). Thus,

in denying Moore’s petition, which was filed more than two years after the time for

filing a notice of appeal had run, and which did not allege that he exercised

reasonable diligence to determine whether he had the right to appeal, the Third

DCA neither acted contrary to clearly established Federal law nor applied such law

unreasonably. Accordingly, the judgment of the district court is

AFFIRMED.

6
That the Florida District Courts of Appeals have granted some defendants’ motions for belated
appeals based on a trial judge’s failure to inform the defendant at sentencing of his or her right to
appeal does not render the Third DCA’s decision to deny Moore’s belated appeal erroneous. See
Battles v. State, 930 So. 2d 769 (Fla. Dist. Ct. App. 2006); Byrd v. State, 916 So. 2d 926 (Fla.
Dist. Ct. App. 2005); Bowden v. Singletary, 805 So. 2d 812 (Fla. Dist. Ct. App. 1999).