[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.”
6
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.
7
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.
8
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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