# Borders v. Secretary, Department of Corrections

> District Court, M.D. Florida · October 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10106246

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106246

## How later opinions describe it (automated extraction)

- noting that a state appellate court’s per curiam affirmance of the lower court’s ruling explicitly based on a procedural default is a clear and express statement of its reliance on an independent and adequate state law ground barring federal review

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NATHANIEL BORDERS,

Petitioner,

v. Case No. 8:17-cv-2823-T-35AAS

SECRETARY, DEPARTMENT
OF CORRECTIONS,

Respondent.
______________________________/

O R D E R

This cause is before the Court on Petitioner Nathaniel Borders’s timely-filed pro se
petition for the writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1) Upon consideration
of the petition, the response (Doc. 14) and the reply (Doc. 16), and in accordance with
the Rules Governing Section 2254 Cases in the United States District Courts, it is
ORDERED that Borders’s petition is DENIED:
PROCEDURAL HISTORY
Borders pleaded nolo contendere in case number 14-CF-00968 to one count of
failure to register as a career offender. (Doc. 12 Ex. 3) He was sentenced to 62 months
and 12 days in prison. (Doc. 12 Ex. 5) Borders did not appeal. Borders sought
postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 12 Ex. 10 at
9-16) The state postconviction court denied his motion, and the state appellate court per
curiam affirmed. (Doc. 12 Ex. 10 at 23; Ex. 13) Borders filed another postconviction
motion, which the state court construed as a motion to correct illegal sentence under Rule
3.800(a). (Doc. 12 Ex. 15 at 32-40) The state court denied the motion. (Doc. 12 Ex. 15 at
69-70) The state appellate court per curiam affirmed the lower court’s order. (Doc. 12 Ex.
18) Borders filed a second motion under Rule 3.850, which the state postconviction court
denied. (Doc. 12 Ex. 20 at 65-72, 77) The state appellate court per curiam affirmed. (Doc.

12 Ex. 26)
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this
proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief
can only be granted if a petitioner is in custody “in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). To meet this standard, a petitioner
must demonstrate that the state court’s adjudication of his federal claim resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established federal law, or 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.

28 U.S.C. § 2254(d)(1)-(2).
DISCUSSION
I. Introduction
In 1989, Borders was convicted in three state court cases and was sentenced as
a habitual violent felony offender. (Doc. 12 Ex. 10 at 33-36; Ex. 15 at 41-42) Borders
successfully sought resentencing in 1997. He was resentenced to time served in each
case, and he was released from prison. (Doc. 12 Ex. 10 at 17-18) In 2002, the Florida
Legislature passed the Florida Career Offender Registration Act, which imposes certain
registration requirements on career offenders. A “career offender means any person who
is designated as a habitual violent felony offender, a violent career criminal, or a three-
time violent felony offender under [§] 775.084 or as a prison releasee reoffender under
[§] 775.082(9).” § 775.261(2)(a), Fla. Stat. A career offender’s failure to comply with the
registration requirements is a third degree felony. § 775.261(8)(a), Fla. Stat.

Borders was released from prison in 1997. He was later convicted on new charges
and again released in 2012. (Doc. 12 Ex. 15 at 127) When he did not register in accord
with the requirements of § 775.261 upon his release from prison in 2012, Borders was
charged with failure to register as a career offender and was convicted and sentenced in
state court in 2014. He challenges the 2014 judgment in this § 2254 petition.
II. Grounds One And Two
In Ground One, Borders argues that the trial court violated his federal due process
rights in sentencing him for failure to register as a career offender. In Ground Two,
Borders contends that the state trial court violated his constitutional rights by imposing an
illegal sentence. In both grounds, Borders asserts that as a result of the 1997

resentencing for his habitual violent felony offender sentences, he did not qualify as a
“career offender” and therefore was not subject to the registration requirements of
§ 775.261. The state court denied Borders’s claims when it rejected his first Rule 3.850
motion and his construed Rule 3.800(a) motion. The state court concluded that the 1997
resentencing did not affect Borders’s designation as a habitual violent felony offender.
(Doc. 12 Ex. 10 at 23; Ex. 15 at 69-70).
The claims Borders raises in Grounds One and Two are not cognizable on federal
habeas review. The resolution of Borders’s claims turns on a question of state law—
whether Borders meets the definition of a “career offender” as set out in § 775.261.
Because this question solely concerns the interpretation and application of state law,
Borders’s claims are not cognizable in this action. See Wainwright v. Goode, 464 U.S.
78, 83 (1983) (“It is axiomatic that federal courts may intervene in the state judicial
process only to correct wrongs of a constitutional dimension.”); McCullough v. Singletary,

967 F.2d 530, 535 (11th Cir. 1992) (“A state’s interpretation of its own laws or rules
provides no basis for federal habeas corpus relief, since no question of a constitutional
nature is involved.”); Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (“[A] habeas
petition grounded on issues of state law provides no basis for habeas relief.”). The fact
that Borders frames his arguments as invoking his federal rights does not impact
cognizability. See Branan, 861 F.2d at 1508 (“This limitation on federal habeas review is
of equal force when a petition, which actually involves state law issues, is ‘couched in
terms of equal protection and due process.’” (quoting Willeford v. Estelle, 538 F.2d 1194,
1198 (5th Cir. 1976))). Borders has not presented a claim cognizable on § 2254 habeas
review. Accordingly, Grounds One and Two afford Borders no relief.

III. Ground Three
Borders contends that the trial court violated his federal due process rights and his
rights under the Ex Post Facto Clause of the Federal Constitution in sentencing him.
Borders contends that the Florida Career Offender Registration Act did not apply to him
because the sentences used to qualify him under that Act were completed before the
Act’s 2002 enactment.
Borders raised this claim in his second Rule 3.850 motion for postconviction relief.
The state court rejected this claim on a procedural ground (Doc. 12 Ex. 20 at 77):
This is the second postconviction motion that the Defendant has filed in
these cases[1] with the first motion denied in an order dated May 26, 2015.
Defendant has failed to indicate why this claim could not have been raised
when the previous claim was filed. . . . Additionally, the Court can deny
Defendant’s Motion on its merits.

Respondent contends that the state court’s resolution of the claim on an
independent and adequate state procedural ground results in a procedural default on
federal habeas review. The Court agrees. A petitioner’s failure to comply with state
procedural rules governing proper presentation of a claim typically bars review of that
claim in a federal habeas corpus proceeding. See Coleman v. Thompson, 501 U.S. 722,
729 (1991) (stating that a federal court “will not review a question of federal law decided
by a state court if the decision of that court rests on a state law ground that is independent
of the federal question and adequate to support the judgment.”); Caniff v. Moore, 269
F.3d 1245, 1247 (11th Cir. 2001) (“[C]laims that have been held to be procedurally
defaulted under state law cannot be addressed by federal courts.”); Sims v. Singletary,
155 F.3d 1297, 1311 (11th Cir. 1998) (“A federal court must dismiss those claims that are
procedurally barred under state law.”).
A state court’s procedural ruling constitutes an independent and adequate state
rule of decision if (1) the last state court rendering a judgment in the case clearly and
expressly states that it is relying on a state procedural rule to resolve the federal claim
without reaching the merits of the claim; (2) the state court’s decision rests solidly on state
law grounds and is not intertwined with an interpretation of federal law; and (3) the state
procedural rule is not applied in an “arbitrary or unprecedented fashion” or in a “manifestly

1 Borders filed his Rule 3.850 motion in an additional state court case that is not the subject of this § 2254
petition.
unfair manner.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (citing Card v.
Dugger, 911 F.2d 1494 (11th Cir. 1990)).
Borders’s claim was resolved through application of Florida’s procedural bar on
second or successive postconviction motions. The state appellate court affirmed the use

of this procedural bar by its per curiam affirmance. See, e.g., Harmon v. Barton, 894 F.2d
1268, 1274 (11th Cir. 1990) (noting that a state appellate court’s per curiam affirmance
of the lower court’s ruling explicitly based on a procedural default is a clear and express
statement of its reliance on an independent and adequate state law ground barring federal
review).
This procedural bar was not intertwined with an interpretation of federal law and
was also “adequate” to support the state court’s decision. To be considered adequate, a
rule must be firmly established and regularly followed. See Lee v. Kemna, 534 U.S. 362,
376 (2002) (“[V]iolation of ‘firmly established and regularly followed’ state rules . . . will be
adequate to foreclose review of a federal claim.”). In Florida, a second or successive

postconviction motion is an “extraordinary pleading.” Fla. R. Crim. P. 3.850(h)(2). As that
rule further states:
[A] court may dismiss a second or successive motion . . . if new and different
grounds are alleged, [and] the judge finds that the failure of the defendant
or the attorney to assert those grounds in a prior motion constituted an
abuse of the procedure or there was no good cause for the failure of the
defendant or defendant’s counsel to have asserted those grounds in a prior
motion.

Florida decisions also address the rejection of successive postconviction motions.
See Owen v. State, 854 So.2d 182, 187 (Fla. 2003) (“A second or successive motion for
postconviction relief can be denied on the ground that it is an abuse of process if there is
no reason for failing to raise the issues in the previous motion. . . . [C]laims that could
have been raised in a prior postconviction motion are procedurally barred.”); Christopher
v. State, 489 So.2d 22, 24 (Fla. 1986) (recognizing that Rule 3.850 allows a court to
summarily deny a successive postconviction motion that raises new grounds).
Accordingly, the Eleventh Circuit Court of Appeals has recognized Florida’s procedural

rule prohibiting second or successive postconviction motions as an independent and
adequate state procedural bar. See Jennings v. McDonough, 490 F.3d 1230, 1247-48
(11th Cir. 2007) (holding that a state court’s determination that the petitioner’s claims were
procedurally barred by Florida’s rule against successive postconviction motions was a
state law ground independent of the federal question and adequate to support the state
court’s judgment, thereby rendering the claims procedurally defaulted on federal habeas
review). Further, there is no indication that this procedural rule was applied to Borders in
an “arbitrary or unprecedented fashion” or in a “manifestly unfair manner.” Judd, 250 F.3d
at 1313.
The state court’s reliance on an independent and adequate state bar to dispose of

Borders’s claim results in a procedural default. As indicated in the postconviction order,
the state court “additionally” considered the merits of Borders’s postconviction motion.
The state court found (Doc. 12 Ex. 20 at 77):
Defendant was charged with, and sentenced for, Failure of a Career
Criminal to Register in CF14-000968-XX. Defendant argues that Career
Offender Registration does not apply to him. Defendant is mistaken. Per the
letter from FDLE that the Defendant has attached to his motion as Exhibit
A, Defendant was designated a Habitual Violent Felony Offender on June
21, 1989. Defendant was subsequently released from prison on that case.
Defendant was incarcerated again in 1999 and 2008. When Defendant was
released in 2012, he was required to register as a career offender per Fla.
Stat. 775.261.
An alternative merits review does not negate the procedural bar. See Alderman v.
Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (“[W]here a state court has ruled in the
alternative, addressing both the independent state procedural ground and the merits of
the federal claim, the federal court should apply the state procedural bar and decline to

reach the merits of the claim.”).
Therefore, the claim can only be considered if Borders meets either the cause and
prejudice or the fundamental miscarriage of justice exception. See Harris v. Reed, 489
U.S. 255, 262 (1989) (“[A]n adequate and independent finding of procedural default will
bar federal habeas review of the federal claim, unless the habeas petitioner can show”
that one of these exceptions applies). Although afforded the opportunity to reply to the
response, Borders does not contest Respondent’s contention that his claim is
procedurally defaulted and does not argue or demonstrate that an exception applies to
overcome the default. Because the default of this claim is not excused, the claim is
procedurally barred from federal habeas review. Ground Three warrants no relief.

Accordingly, it is ORDERED that Borders’s petition (Doc. 1) is DENIED. The
CLERK is directed to enter judgment against Borders and to CLOSE this case.
CERTIFICATE OF APPEALABILITY
AND
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

IT IS FURTHER ORDERED that Borders is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S. § 2253(c)(1). Rather, a court must
first issue a certificate of appealability. Section 2253(c)(2) limits the issuing of a certificate
of appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” To merit a certificate of appealability, Borders must show that
reasonable jurists would find debatable both the merits of the underlying claims and the
procedural issues. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000);
Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Because he fails to make this
showing, Borders is not entitled to a certificate of appealability. Therefore, he is not
entitled to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to proceed in forma
pauperis on appeal is DENIED. Borders must obtain permission from the Circuit Court to
appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida, on this 22nd day of October, 2020.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106246. Public record. Not legal advice.