Jose Jimenez v. Florida Dept. of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF
No. 06-14523 APPEALS
________________________ ELEVENTH CIRCUIT
March 23, 2007
D. C. Docket No. 04-20132-CV-Middlebrooks

JOSE JIMENEZ,

Petitioner-Appellant,
Cross-Appellee,

versus

FLORIDA DEPARTMENT OF CORRECTIONS,
Secretary James McDonough,

Respondent-Appellee,
Cross-Appellant.

________________________

On Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 23, 2007)

Before TJOFLAT, BLACK and CARNES, Circuit Judges.

PER CURIAM:
 Jose Jimenez, a Florida prisoner under a sentence of death, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his 28

U.S.C. § 2254 federal habeas corpus petition. We deny the application for a COA.

I. BACKGROUND

In 1994, Jimenez was convicted for first-degree murder and burglary with

assault and battery in an occupied dwelling. The jury unanimously recommended

Jimenez receive a death sentence for the 1992 beating and stabbing of sixty-three-

year-old Phyllis Minas in her home. Jimenez v. Florida, 703 So. 2d 437, 438 (Fla.

1997). The trial judge sentenced Jimenez to death. In 1998, the Florida Supreme

Court affirmed his conviction and sentence. Id. at 442.

In 2000, Jimenez filed for relief under Florida Rule of Criminal Procedure

3.850. The Florida courts denied his motion. In 2002, Jimenez filed a habeas

corpus petition with the Florida Supreme Court. The court denied his petition for

relief.

In 2004, Jimenez filed his petition for federal habeas corpus relief in the

United States District Court for the Southern District of Florida. In his petition to

the district court, Jimenez raised the following twelve claims: (1) the Florida

Supreme Court's refusal on collateral review to apply a subsequent construction of

the burglary statute to the conduct for which Jimenez was convicted violated due

2
process and the Eighth Amendment prohibition against the arbitrary and

capricious imposition of a death sentence; (2) Jimenez was deprived of a full and

fair state post-conviction process in violation of the Sixth, Eighth, and Fourteenth

Amendments; (3) Jimenez was deprived of due process by an ex parte contact

between the judge presiding over his state post-conviction proceeding and his

court-appointed attorney outside Jimenez’s presence; (4) the state failed to

disclose exculpatory evidence and/or knowingly presented misleading evidence,

and/or defense counsel unreasonably failed to discover and present exculpatory

evidence, in violation of the Fifth, Sixth, and Eighth Amendments; (5) Jimenez

was denied a fair trial when the state failed to correct false testimony and

presented improper argument in violation of the Sixth, Eighth, and Fourteenth

Amendments; (6) Jimenez was denied due process on the basis of trial judge bias

and ex parte contact with the prosecutor; (7) the trial court failed to assure

Jimenez’s presence during critical stages of the capital proceedings in violation of

the Sixth, Eighth, and Fourteenth Amendments; (8) Jimenez was improperly

denied the right to cross-examine witnesses in violation of the Sixth, Eighth, and

Fourteenth Amendments; (9) the trial court failed to adequately inquire into

Jimenez’s allegations of a conflict on the part of his court-appointed counsel in

violation of the Sixth, Eighth, and Fourteenth Amendments; (10) there was

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insufficient evidence to support a conviction of first-degree murder; (11) the

prosecutor’s closing argument in the penalty phase was in violation of the Eighth

and Fourteenth Amendments, and trial counsel was ineffective for failing to

adequately preserve the issue; and (12) the Florida capital sentencing scheme

violates the Sixth Amendment by failing to require that the jury determine all

elements of the crime of capital first-degree murder which made Jimenez eligible

for a death sentence. The district court denied relief on all claims.1 Claims 4 and

5 of Jimenez’s petition to the district court rambled in recounting his allegations.

The district court organized claim 4 into 14 issues and claim 5 into 3 allegations.

For clarity, we follow the district court’s organization of these claims in our

discussion.

On October 10, 2006, Jimenez filed an application for COA with this

Court.2 Jimenez requests a COA on claims 1, 2, 4, and 5 of the 12 claims he

petitioned to the district court. He also requests a COA on “all of the other claims

that the District Court found procedurally barred by virtue of state court registry

counsel’s conduct.”

1
The district court also denied Jimenez’s motions (1) to alter or amend the judgment,
(2) for a certificate of appealability, and (3) for reconsideration.
2
The State appears as cross-appellant in this case because it appeals a prior order of the
district court. This appeal is contingent on our granting COA. We deny Jimenez’s petition for
COA and, therefore, do not discuss the State’s cross-appeal.

4
 II. STANDARD FOR GRANTING A COA

This Court may issue a certificate of appealability “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “The COA determination under § 2253(c) requires an overview of

the claims in the habeas petition and a general assessment of their merits.”

Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003). Jimenez

must show that “reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the issues

presented were ‘adequate to deserve encouragement to proceed further.’” Id.

(quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000)).

“Where a plain procedural bar is present and the district court is correct to invoke

it to dispose of the case, a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Slack, 529 U.S. at 484, 120 S. Ct. at 1604.

III. DISCUSSION

A. Claim One: Florida Supreme Court’s Refusal to Apply Delgado Retroactively

Jimenez asserts the Florida Supreme Court’s refusal to apply retroactively

the construction of the burglary statute in Delgado v. State, 776 So. 2d 233 (Fla.

2000), denied him due process of law and violated his rights under the Eighth

5
Amendment. However, Jimenez did not exhaust his state remedies on this claim.

The habeas statute requires applicants to exhaust all available state law remedies.

28 U.S.C. § 2254(b)(1)(A). A petitioner must alert state courts to any federal

claims to allow the state courts an opportunity to review and correct the claimed

violations of his federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct.

887, 888 (1995). “Thus, to exhaust state remedies fully the petitioner must make

the state court aware that the claims asserted present federal constitutional issues.”

Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998).

If a petitioner has not exhausted all claims in a petition, a federal court must

dismiss without prejudice both exhausted and unexhausted claims to allow

petitioners to return to state court to exhaust state remedies for all claims. Rose v.

Lundy, 455 U.S. 509, 522, 102 S. Ct. 1198, 1205 (1982). However, if unexhausted

claims would be procedurally barred in state court under the state’s law of

procedural default, the federal court may consider the barred claims as having no

basis for federal habeas relief. Snowden, 135 F.3d at 736 (citing Coleman v.

Thompson, 501 U.S. 722, 735 n.1, 111 S. Ct. 2546, 2557 n.1 (1991)).

Florida law procedurally bars new claims or claims that have already been

raised in prior petitions when “the circumstances upon which they are based were

known or should have been known at the time the prior petition was filed.”

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Johnson v. Singletary, 647 So. 2d 106, 109 (Fla. 1994). In order to overcome the

procedural bar in federal court, petitioners must “demonstrate cause for the

default and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S. Ct. at 2565.

In his 2000 motion for post-conviction relief to the Florida court, Jimenez

claimed Delgado applied to his case, but he did not assert this claim as a matter of

federal law.3 Therefore, he has not exhausted this claim. Any further attempt at

exhaustion in Florida courts would be futile because his claim would be

procedurally barred under Florida law. See Johnson, 647 So. 2d at 109. Finally,

Jimenez has not demonstrated cause to overcome the procedural default. See

Coleman, 501 U.S. at 750, 111 S. Ct. at 2565. We determine that reasonable

jurists would not conclude the district court erred in dismissing the petition or that

the petitioner should be allowed to proceed further. See Slack, 529 U.S. at 484,

120 S. Ct. at 1604.

3
After he filed his federal habeas petition, Jimenez filed a second state habeas corpus
petition with the Florida Supreme Court in 2004 in which he presented the federal nature of these
claims. The Florida Supreme Court denied the motion. Jimenez filed another motion for post-
conviction relief in 2005 with the Florida courts that is still pending. Neither of these motions
were filed at the time the instant petition was filed with the district court. As a result, the
motions and petitions filed later do not affect the determination of issue exhaustion in this
application.

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 Even if his claim were not procedurally barred, Jimenez did not make a

substantial showing that the Florida Supreme Court’s refusal to apply retroactively

an interpretation of the burglary statute violated his constitutional rights.4 Jimenez

asserts the Florida Supreme Court denied him due process by not applying the

criminal law uniformly.5 At the time Jimenez’s case was reviewed by the Florida

Supreme Court, Florida precedent did not require a showing of forced entry or

entry without consent to prove the crime of burglary. Jimenez, 703 So. 2d at 440-

41. The court concluded a trier of fact could reasonably find that even if the

victim gave consent to the perpetrator's entry into the home, the victim of the

crime withdrew her consent for him to remain when Jimenez beat and stabbed her

multiple times. Id. at 441. In the Delgado case, the Florida Supreme Court

interpreted the burglary statute to limit its application in cases where the

perpetrator entered the home with the victim’s consent to those who remained in

4
Florida criminal law defines burglary as “entering or remaining in a dwelling, a
structure, or a conveyance with the intent to commit an offense therein, unless the premises are at
the time open to the public or the defendant is licensed or invited to enter or remain.” Fla. Stat.
§ 810.02.
5
Jimenez argues the Florida Supreme Court’s application of its Delgado construction of
the statute to crimes that occurred before and after the crime for which he was convicted renders
the court’s refusal to apply it to his case unconstitutional. Those convictions were not yet final
when the court issued the Delgado opinion.

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the home surreptitiously. Delgado, 776 So. 2d at 240.6 The Florida Supreme

Court held Delgado did not meet the requirements for retroactivity. Jimenez v.

State, 810 So. 2d 511, 512-13 (Fla. 2001). As a result, it did not apply Delgado to

convictions that had become final before the court first issued its opinion in

Delgado on February 3, 2000. Jimenez’s conviction became final when the

United States Supreme Court denied his petition for certiorari on direct appeal on

May 18, 1998. Thus, Jimenez does not make a substantial showing he was denied

a constitutional right as a result of the Florida Supreme Court’s determination that

Delgado did not meet its own criteria for retroactivity.

B. Claim Two: Ineffective Post-conviction Counsel

Jimenez asserted the ineffective assistance of his state-appointed counsel in

his post-conviction proceedings deprived him of his state-created right to full and

fair state post-conviction process. Section 2254 explicitly bars this claim. “The

ineffectiveness or incompetence of counsel during Federal or State collateral

post-conviction proceedings shall not be a ground for relief in a proceeding arising

under section 2254.” 28 U.S.C. § 2254(i). Jimenez does not make a substantial

showing of a denial of a constitutional right.

6
The Florida legislature later found Delgado contrary to legislative intent and nullified its
interpretation of the burglary statute. Fla. Stat. § 810.015. This statute was effective retroactively
to February 1, 2000. Id.

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C. Claim Four: Prosecutorial Misconduct and Defense Counsel Inadequacy

Jimenez requests a COA for various claims of inadequate adversarial testing

in his trial. He claims constitutional deprivations based on the prosecution’s

failure to disclose sources of information, withholding evidence, and presenting

misleading evidence. Jimenez also asserts defense counsel’s failure to discover or

present mitigating evidence and failure to cross-examine or impeach witnesses

rendered his legal assistance deficient.7 In order for this Court to review these

claims, Jimenez must have exhausted all his available state law remedies. 28

U.S.C. § 2254(b)(1)(A). We apply the same standard for exhaustion and

procedural default to this claim as we applied to Jimenez’s first claim.

In order to overcome procedural default, a defendant must “demonstrate

cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S. Ct. at

2565. A defendant cannot base his cause and prejudice for procedural default on

his attorney’s performance unless the attorney’s performance was “constitutionally

7
As noted earlier, the district court organized claim 4 of Jimenez’s petition into 14
separate issues. Jimenez alleged 2 of these issues separately as claims 8 and 9. We do not
address these issues with the remaining allegations of claim 4 because the district court addressed
them separately as claims 8 and 9.

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ineffective under the standard established in Strickland v. Washington,” 466 U.S.

668, 104 S. Ct. 2052 (1984). Coleman, 501 U.S. at 752, 111 S. Ct. at 2566. A

petitioner cannot establish constitutionally ineffective assistance of counsel in

state post-conviction proceedings because there is no constitutional right to an

attorney in such proceedings. Id. at 752, 111 S. Ct. at 2566.

At the time he filed his federal habeas corpus petition, Jimenez had not

presented the allegations in claim four to a Florida court.8 These unexhausted

claims were known or should have been known at the time of his first state

petition. Jimenez attributes his procedural default to his appointed collateral

counsel. Jimenez did not have a constitutional right to post-conviction counsel;

therefore he cannot establish a constitutionally deficient performance under

Strickland that would be necessary to prove cause and prejudice to overcome the

procedural bar to federal review. As a result, the assertions in claim four are

procedurally barred from review. The district court properly invoked a procedural

8
Jimenez asserted these claims in additional motions filed with Florida courts after he
filed this federal habeas petition. At the time the district court denied the habeas petition, the
Florida Supreme Court had denied one state habeas petition, and a Florida Circuit Court had
denied a second motion for post-conviction relief. The appeal of the Circuit Court’s denial is
still pending before the Florida Supreme Court. The existence of these later proceedings do not
affect our decison that the claims were not exhausted and were procedurally barred at the time
the federal habeas petition was filed.

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bar; therefore we deny Jimenez’s application for a COA. See Slack, 529 U.S. at

484, 120 S. Ct. at 1604.

D. Claim Five: Disclosures by the State

In his fifth claim, Jimenez asserts three constitutional deprivations based on

allegations that prosecutors and detectives failed to disclose evidence or presented

misleading evidence regarding various informants in the case. Just as in claim

four, Jimenez had not presented these claims to Florida courts at the time he filed

his federal habeas corpus petition. The unexhausted claims would be procedurally

barred in a Florida court because they were known or should have been known at

the time the first state petition was filed. Jimenez cannot use post-conviction

counsel to establish cause and prejudice because he had no constitutional right to

counsel in post-conviction proceedings. See Coleman, 501 U.S. at 752, 111 S. Ct.

at 2566. Accordingly, this claim is procedurally barred from review in federal

court, and we deny Jimenez’s application for a COA. See Slack, 529 U.S. at 484,

120 S. Ct. at 1604.

E. All other claims

Jimenez also asked for certification to appeal all claims the district court

found barred because of the conduct of his post-conviction state-appointed

counsel. Just as in his fourth and fifth claims, Jimenez cannot show a

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constitutional failure in assistance of counsel in post-conviction proceedings

because he did not have a constitutional right to post-conviction counsel. See

Coleman, 501 U.S. at 752, 111 S. Ct. at 2566. Without showing a constitutional

failure, Jimenez cannot establish cause and prejudice to overcome the procedural

bar to these claims. Reasonable jurists could not conclude either that the district

court erred in dismissing the petition or that the petitioner should be allowed to

proceed further. See Slack, 529 U.S. at 484, 120 S. Ct. at 1604.

Accordingly, we DENY the petitioner’s application for a COA.

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