Rodriguez v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JUAN IVAN RODRIGUEZ,

Petitioner,

v. Case No. 8:16-cv-2992-KKM-SPF

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________

ORDER

Juan Ivan Rodriguez filed a timely1 petition for habeas relief under 28 U.S.C. § 2254

challenging his state convictions for manslaughter while driving under the influence and

reckless driving. (Docs. 1 and 2.) Having considered the petition ( .), the response in

opposition (Doc. 21), and the reply (Doc. 25), the Court denies the petition. Furthermore,

a certificate of appealability is not warranted.

1 A state prisoner has one year from the date his judgment becomes final to file a § 2254 petition. 28

U.S.C.§ 2244(d)(1). This one-year limitation is tolled during the pendency of a properly filed state motion

seeking collateral relief. 28 U.S.C.§ 2244(d)(2). Rodriguez’s convictions and sentences were affirmed

on October 25, 2006. (Doc. 24-1 at 85.) His judgment became final 90 days later, on January 24, 2007,

when the time to petition the Supreme Court of the United States for writ of certiorari expired.

, 309 F.3d 770, 774 (11th Cir. 2002). After 63 days of untolled time passed, on March 29, 2007,

Rodriguez filed a motion for postconviction relief. (Doc. 24-1 at 89–95.) The one-year limitation remained

tolled until the mandate issued on postconviction appeal on January 28, 2016. (Doc. 24-1 at 372.)

Rodriguez had until November 28, 2016, to file a timely federal habeas petition. Less than one year of

untolled time had expired when Rodriguez filed his § 2254 petition on October 24, 2016. The petition is

therefore timely.

I. BACKGROUND

A. Procedural History

A state court jury convicted Rodriguez of five counts of manslaughter while driving

under the influence and five counts of reckless driving. (Doc. 24-1 at 6–8.) The trial court

sentenced Rodriguez to five consecutive terms of life in prison for the manslaughter

convictions. (Doc. 24-1 at 13–16.)2 The state appellate court per curiam affirmed

Rodriguez’s convictions and sentences. (Doc. 24-1 at 85.)

Rodriguez filed a motion for postconviction relief under Florida Rule of Criminal

Procedure 3.850. (Doc. 24-1 at 89–95.) The state postconviction court summarily denied

the motion. (Doc. 24-1 at 160–62.) The state appellate court affirmed-in-part and

reversed-in-part the order denying the motion and remanded for further review. (Doc.

24-1 at 166–67.)

On remand, the state postconviction court dismissed the motion as facially deficient

with leave to file an amended motion. (Doc. 24-1 at 171–73.) Rodriguez filed an amended

motion, (Doc. 24-1 at 175–85), which the state postconviction court struck-in-part, (Doc.

24-1 at 187–89). The state postconviction court granted an evidentiary hearing on two

claims in the amended motion, (Doc. 24-1 at 191–92), and denied Rodriguez’s motion to

2 At sentencing, the trial court determined that the five misdemeanor counts for reckless driving merged

into one count. (Doc. 24-4 at 79.) , 682 So. 2d 218 (Fla. 5th DCA 1996). The trial

court declined to impose a sentence on the merged count. (Doc. 24-4 at 79.)

further amend the motion with additional claims, (Doc. 24-1 at 333). At the evidentiary

hearing, Rodriguez did not present evidence to prove his claims, (Doc. 24-4 at 97), the

state postconviction court denied the amended motion for postconviction relief, (Doc.

24-1 at 335), and the state appellate court affirmed, (Doc. 24-1 at 370). Rodriguez’s federal

petition followed.

B. Factual Background and Trial Testimony3

On the evening of February 14, 2005, Rodriguez drove south on Highway 17

toward Avenue D in Winter Haven, Florida, in a black Acura. (Doc. 24-2 at 409–14.)

Michael White also drove south on Highway 17 toward Avenue D in a red Dodge Neon.

(Doc. 24-2 at 411–14.) Raul Perez drove north on Highway 17 in a white Oldsmobile and

prepared to turn left. (Doc. 24-2 at 414–16.) Witnesses saw Rodriguez’s Acura and White’s

Neon racing down the street, traveling at high speeds and swerving around cars. (Docs.

24-2 at 342–43, 373–74, 446–49, 559–60, 570–72, 589–90, 608–12 and 24-3 at 194–96.)

An accident reconstruction expert testified on behalf of the prosecution and opined

that a crash occurred as follows. Rodriguez in the Acura and White in the Neon exceeded

the speed limit when they entered the intersection at Avenue D, and Perez in the

Oldsmobile turned left and collided into White’s Neon. (Doc. 24-3 at 15–25, 83–89.)

Perez caused the Neon to suddenly slow down, which led Rodriguez, who was behind the

3 The factual background is derived from the trial transcript.

Neon, to rear-end and propel the Neon into transformer box. (Doc. 24-3 at 15–25, 83–

89.)

A medical examiner testified that White and four passengers in the Neon died from

blunt force trauma before the car burst into flames. (Doc. 24-2 at 548–52.) Perez in the

Oldsmobile and a passenger in Rodriguez’s Acura suffered serious injuries. (Doc. 24-2 at

529–32.)

That evening, Rodriguez and his friends drank beer and played billiards for two or

three hours. (Doc. 24-2 at 362–65.) A toxicologist opined that Rodriguez’s blood alcohol

content was 0.09 or 0.10 at the time of the crash. (Doc. 24-3 at 216, 221.) White and his

friends drank alcohol and smoked marijuana at a motel. (Doc. 24-2 at 566–68, 577, 597,

607–08.) White’s blood alcohol content was 0.12 at the time of his death, and a blood test

showed that he had consumed a therapeutic amount of Xanax. (Doc. 24-2 at 549.) Perez

had a blood alcohol content of 0.12 or 0.13 at the time of the crash. (Doc. 24-3 at 61–62,

224–25.)

The prosecutor charged both Rodriguez and Perez with the homicides, and both

defendants were jointly tried. A witness who was driving on Highway 17 observed

Rodriguez’s Acura collide into the Neon only after the Neon collided into the Oldsmobile.

(Doc. 24-2 at 343–49.) Rodriguez’s friend, who was stopped at a traffic light two blocks

from the crash, observed the Oldsmobile turn left in front of Rodriguez’s Acura and the

Neon. (Doc. 24-2 at 377–79.) A truck driver, who was approaching the intersection,

observed Rodriguez’s Acura rear-end the Neon when the Neon slowed down to turn right,

propelling the Neon into the Oldsmobile. (Doc. 24-2 at 413–22.) An accident

reconstruction expert who testified on behalf of Perez opined that Rodriguez rear-ended

White’s Neon first and caused the Neon to collide into Perez’s Oldsmobile. (Doc. 24-3 at

329–51, 359–60, 366.)

In a recorded interview, Rodriguez told a detective that the Neon side-swiped his

Acura while racing past him and then cut him off by swerving into his lane. (Doc. 24-3 at

112–17.) In a second recorded interview, Rodriguez told a detective that the driver in the

Neon twice drove next to him, revved the engine, and sped off. (Doc. 24-3 at 139–42.) He

claimed that he and the Neon were about to cross the street, the Neon cut across into his

lane, and the Neon went under his front bumper. (Doc. 24-3 at 141–67.) He claimed that

the Neon “crunched up” before he hit the Neon. (Doc. 24-3 at 149–52.) He admitted that

he drank two beers that evening and exceeded the speed limit but denied that he raced the

Neon. (Doc. 24-3 at 144–47.)

Rodriguez testified in his own defense. Rodriguez testified that he and his friends

drank beer and played billiards that evening at a sports bar. (Doc. 24-3 at 266–67.)

Rodriguez claimed that he drank two and a half mugs of beer during the three hours that

the group spent at the bar. (Doc. 24-3 at 267, 293.) The group planned to go to a dance

club. (Doc. 24-3 at 268.) While Rodriguez was driving on Highway 17, a driver in a red

Neon twice drove next to him, revved the engine, and sped off. (Doc. 24-3 at 274.)

Rodriguez continued to drive in the lane closest to the sidewalk, the driver of the red Neon

drove in the lane closest to the median about a car-length ahead of Rodriguez, and

something pulled in front of the red Neon, which caused the driver of the red Neon to

break hard and come into the lane where Rodriguez was traveling. (Doc. 24-3 at 275.)

After observing the red Neon “folding up” and veering into his lane, Rodriguez slammed

on his breaks, started sliding, and observed his bumper lodge beneath the red Neon. (Doc.

24-3 at 275–77.) Rodriguez’s car shifted right and slammed into a sign at a McDonald’s

restaurant. (Doc. 24-3 at 277.)

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this

proceeding. , 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

under the AEDPA can be granted only 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). “The power of

the federal courts to grant a writ of habeas corpus setting aside a state prisoner’s conviction

on a claim that his conviction was obtained in violation of the United States Constitution

is strictly circumscribed.” , 28 F.4th 1089, 1093 (11th Cir.

2022).

Section 2254(d) provides that federal habeas relief cannot be granted on a claim

adjudicated on the merits in state court unless the state court’s adjudication:

(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.

For purposes of § 2254(d)(1), the phrase “clearly established Federal law”

encompasses the holdings only of the United States Supreme Court “as of the time of the

relevant state-court decision.” , 529 U.S. 362, 412 (2000). This section

“defines two categories of cases in which a state prisoner may obtain federal habeas relief

with respect to a claim adjudicated on the merits in state court.” at 404. First, a decision

is “contrary to” clearly established federal law “if the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of law or if the state court

decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” . at 413.

Second, a decision involves an “unreasonable application” of clearly established

federal law “if the state court identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.” The AEDPA was meant “to prevent federal habeas ‘retrials’ and to

ensure that state-court convictions are given effect to the extent possible under law.”

, 535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state

court’s application of clearly established federal law is objectively unreasonable, and . . . an

unreasonable application is different from an incorrect one.” at 694. As a result, to

obtain relief under the AEDPA, “a state prisoner must show that the state court’s ruling

on the claim being presented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” , 562 U.S. 86, 103 (2011);

, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s application of

clearly established federal law must be objectively unreasonable” for a federal habeas

petitioner to prevail and that the state court’s “clear error” is insufficient).

When the last state court to decide a federal claim explains its decision in a reasoned

opinion, a federal habeas court reviews the specific reasons as stated in the opinion and

defers to those reasons if they are reasonable. , 138 S. Ct. 1188, 1192

(2018). But the habeas court is “not limited by the particular justifications the state court

provided for its reasons, and [it] may consider additional rationales that support the state

court’s determination.” , 55 F.4th 1277, 1292

(11th Cir. 2022). When the relevant state-court decision is not accompanied with reasons

for the decision—such as a summary affirmance without discussion—the federal court

“should ‘look through’ the unexplained decision to the last related state-court decision that

does provide a relevant rationale [and] presume that the unexplained decision adopted the

same reasoning.” , 138 S. Ct. at 1192. The state may “rebut the presumption by

showing that the unexplained affirmance relied or most likely did rely on different grounds

than the lower state court’s decision . . . .”

For purposes of § 2254(d)(2), “it is not enough to show that ‘reasonable minds

reviewing the record might disagree about the finding in question.’” ,

142 S. Ct. 1510, 1525 (2022) (quotations omitted). “An unreasonable determination of the

facts occurs when the direction of the evidence, viewed cumulatively, was too powerful to

conclude anything but the petitioner’s factual claim.”

, 978 F.3d 1349, 1355 (11th Cir. 2020) (internal quotation marks and alterations

omitted). A state court’s findings of fact are presumed correct, and a petitioner can rebut

the presumption of correctness afforded to a state court’s factual findings only by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

Even where a petitioner succeeds in rebutting the presumption, he must show that

the state court’s decision is “based on” the incorrect factual determination.

, 50 F.4th 1025, 1035 (11th Cir. 2022). This is because a state court

decision may still be reasonable “even if some of the state court’s individual factual findings

were erroneous—so long as the decision, taken as a whole, doesn’t constitute an

‘unreasonable determination of the facts’ and isn’t ‘based on’ any such determination.” .

(quoting , 10 F.4th 1203, 1224–25 (11th Cir. 2021)

(Newsom, J., concurring)).

In addition to satisfying the deferential standard of federal court review of a state

court adjudication, a federal habeas petitioner must present his claims by raising them in

state court before bringing them in a federal petition. 28 U.S.C. § 2254(b)(1)(A);

, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state

courts an opportunity to act on his claims before he presents those claims to a federal court

in a habeas petition.”). A petitioner satisfies this requirement if he fairly presents the claim

in each appropriate state court and alerts that court to the federal nature of the claim.

, 592 F.3d 1144, 1156 (11th Cir. 2010).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default which

will bar federal habeas relief, unless either the cause and prejudice or the fundamental

miscarriage of justice exception is established.” , 256 F.3d 1135, 1138 (11th

Cir. 2001). A petitioner shows cause for a procedural default when he demonstrates “that

some objective factor external to the defense impeded the effort to raise the claim properly

in the state court.” , 169 F.3d 695, 703 (11th Cir. 1999). A petitioner

demonstrates prejudice by showing that “there is at least a reasonable probability that the

result of the proceeding would have been different” absent the constitutional violation.

, 353 F.3d 880, 892 (11th Cir. 2003). “A ‘fundamental miscarriage

of justice’ occurs in an extraordinary case, where a constitutional violation has resulted in

the conviction of someone who is actually innocent.”

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Rodriguez brings claims for ineffective assistance of counsel under the Sixth

Amendment. Under the well-known, two-part standard articulated in

, 466 U.S. 668 (1984), to succeed, he must show both deficient performance

by his counsel and prejudice resulting from those errors. . at 687.

The first part “requires showing that counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

The lynchpin of this analysis is whether counsel’s conduct “was reasonable considering all

the circumstances.” . at 688. A petitioner establishes deficient performance if “the

identified acts or omissions [of counsel] were outside the wide range of professionally

competent assistance.” . at 690. A court “must judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” . “[C]ounsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.”

The second part requires showing that the deficient performance prejudiced the

defense. at 687. “An error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no effect on

the judgment.” . at 691. To demonstrate prejudice, a petitioner must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” at 694.

“The question [on federal habeas review of an ineffective assistance claim] ‘is not

whether a federal court believes the state court’s determination’ under the

standard ‘was incorrect but whether that determination was unreasonable—a substantially

higher threshold.’” , 556 U.S. 111, 123 (2009) (quoting

, 550 U.S. 465, 473 (2007)). Consequently, federal petitioners rarely prevail on

claims of ineffective assistance of counsel because “[t]he standards created by

and § 2254(d) are both highly deferential, and when the two apply in tandem, review is

doubly so.” , 562 U.S. at 105 (quotation and citations omitted).

IV. ANALYSIS

A. Ground One

Rodriguez asserts that counsel was ineffective for not retaining Rick Copley, an

expert witness, who would testify that Perez caused the crash and Rodriguez did not

contribute to the cause of the crash. (Doc. 1 at 5–8.) The Respondent asserts that the claim

is unexhausted and procedurally defaulted. (Doc. 21 at 12–14.)

Rodriguez presented the claim in a motion for postconviction relief, (Doc. 24-1 at

90–92); the state postconviction court denied the claim as facially insufficient, conclusory,

and meritless, (Doc. 24-1 at 161); and the state appellate court reversed after determining

that the records attached to the order denying the claim did not refute the claim, (Doc.

24-1 at 166–67). On remand, the state postconviction court dismissed the claim as facially

insufficient with leave to amend. (Doc. 24-1 at 171–73.) Rodriguez presented the claim in

an amended motion for postconviction relief, (Doc. 24-1 at 177–81), and the state

postconviction court granted an evidentiary hearing on the claim, (Doc. 24-1 at 191–92).

Before the evidentiary hearing, Rodriguez moved to further amend the motion for

postconviction relief to add new claims, (Doc. 24-1 at 194–98), and the state

postconviction court denied the motion, (Doc. 24-1 at 333). At the evidentiary hearing,

postconviction counsel advised that Rodriguez was not presenting testimony or evidence

to prove his claim. (Doc. 24-4 at 96–98.) The state postconviction court denied the claim,

(Doc. 24-1 at 335), and Rodriguez appealed, (Doc. 24-1 at 338). On appeal, Rodriguez

asserted that the state postconviction court erred by denying his motion to further amend

his motion for postconviction relief to add new claims. (Doc. 24-1 at 350–55.) He did not

present on appeal the ineffective assistance of counsel claim that he raises in Ground One

of his federal petition.

Rodriguez failed to “give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate

review process.” , 526 U.S. at 845. If he returns to state court to present the claim,

the state postconviction court will deny the claim as untimely and successive. Fla. R. Crim.

P. 3.850(b), (h). Consequently, the claim is procedurally defaulted in federal court.

, 135 F.3d 732, 736 (11th Cir. 1998).

Rodriguez asserts that cause and prejudice under , 566 U.S. 1

(2012), excuse the procedural default. (Doc. 25 at 8–10.) But does not apply to a

claim defaulted on state postconviction appeal. , 756

F.3d 1246, 1260 (11th Cir. 2014) (“Importantly, the rule is expressly limited to

attorney errors in initial-review collateral proceedings: ‘[T]he holding in [ ] does

not concern attorney errors in other kinds of proceedings, including appeals from initial-

review collateral proceedings, second or successive collateral proceedings, and petitions for

discretionary review in a State’s appellate courts.’” (quoting , 566 U.S. at 16)).

Ground One warrants no relief.

B. Ground Two

Rodriguez asserts that counsel was ineffective for not filing a motion for a change

of venue because of pre-trial publicity. (Doc. 1 at 9–10.) The Respondent asserts that the

claim is unexhausted because Rodriguez failed to present the federal nature of his claim to

the state postconviction court. (Doc. 21 at 17–18.) In his state postconviction motion,

Rodriguez raised the claim but did not cite or the Sixth Amendment. (Doc. 24-

1 at 92.) Because applies to an ineffective assistance of counsel claim presented

in a Florida court, Rodriguez fairly presented the federal claim. , 347 So.

3d 292, 299 (Fla. 2022).

The state postconviction court denied the claim because the crash occurred in 2003

and the trial occurred in 2005. (Doc. 24-1 at 99.) Also, the state postconviction court

determined that, during voir dire, the prosecutor individually questioned each potential

juror about exposure to publicity. (Doc. 24-1 at 99.) The state postconviction court

concluded that a motion to change the venue would not have succeeded because, although

eighteen of the thirty-nine potential jurors knew about the case, only one juror stated that

she could not decide the case impartially because her nephew knew the victims, and the

remaining seventeen jurors stated that they could decide the case objectively. (Doc. 24-1 at

99.)

The state postconviction court did not unreasonably deny the claim. Whether a

motion to change the venue would have succeeded is an issue of state law, and the state

court’s determination of state law receives deference in federal court.

, 397 F.3d 1338, 1354–55 (11th Cir. 2005). The state postconviction court

accurately described the answers of the potential jurors to the prosecutor’s questions during

voir dire about exposure to publicity. (Doc. 24-2 at 19–74, 134–75, 218–52, 270–89.) The

trial court dismissed the potential jurors who expressed bias because of exposure to

publicity. (Docs. 24-2 at 69–71, 128, 218–20, 231, 252, 287, 289 and 24-3 at 530–31.)

“‘[I]f prospective jurors can assure the court during voir dire that they are impartial

despite their extrinsic knowledge, they are qualified to serve on the jury, and a change of

venue is not necessary.’” , 253 So. 3d 526, 529 (Fla. 2018) (quoting

, 695 So. 2d 278, 287 (Fla. 1997)). If a defendant asserts that trial counsel

was ineffective for not moving for a change of venue, the defendant “‘must, at a minimum,

bring forth evidence demonstrating that the trial court would have, or at least should have,

granted a motion for change of venue if [defense] counsel had presented such a motion to

the court.’” , 253 So. 3d at 529 (quoting , 175 So. 3d 761, 776 (Fla.

2015)). Because each juror who sat on the jury and learned about the crash from pre-trial

publicity confirmed that he could impartially decide the case, and Rodriguez failed to

present evidence supporting a change of venue, the state postconviction court did not

unreasonably deny the claim. Ground Two warrants no relief.

C. Ground Three

Rodriguez asserts that counsel was ineffective for not soliciting a plea offer from the

prosecutor. (Doc. 1 at 11–12.) He contends that “it is unknown if the [prosecutor] would

have accepted a plea agreement to a term of fifteen or twenty years because counsel never

asked the [prosecutor] for an offer.” (Doc. 2 at 29.) The Respondent asserts that the claim

is procedurally defaulted because Rodriguez failed to present the federal nature of his claim

to the state postconviction court. (Doc. 21 at 24–25.) In his state postconviction motion,

Rodriguez raised the claim but failed to cite or the Sixth Amendment. (Doc.

24-1 at 92.) Because applies to an ineffective assistance of counsel claim

presented in a Florida court, Rodriguez fairly presented the federal claim. , 347 So.

3d at 299.

The state postconviction court denied the claim because Rodriguez merely

speculated that the prosecutor would have extended an offer. (Doc. 24-1 at 161–62.)

Because Rodriguez failed to support the claim with some evidence to demonstrate that the

prosecutor would have extended an offer, the state postconviction court did not

unreasonably deny the claim. , 751 F.3d 1214, 1225 (11th Cir. 2014)

(“To the extent Osley avers that the prosecutor would have then offered a new deal

amenable to him, and the district court would have accepted it, this claim is wholly

speculative.” (citing , 566 U.S. 134, 147–49 (2012)). Ground Three

warrants no relief.

D. Ground Four

Rodriguez asserts that counsel was ineffective for not opposing the prosecutor’s

motion to consolidate his trial with Perez’s trial. (Doc. 1 at 13–15.) The Respondent asserts

that the claim is unexhausted and procedurally defaulted. (Doc. 21 at 29–30.)

Rodriguez presented the claim in a motion for postconviction relief, (Doc. 24-1 at

93); the state postconviction court denied the claim as facially insufficient and meritless,

(Doc. 24-1 at 162); and the state appellate court reversed after determining that the records

attached to the order denying the claim did not conclusively refute the claim, (Doc. 24-1

at 166–67). On remand, the state postconviction court dismissed the claim as facially

insufficient with leave to amend. (Doc. 24-1 at 171–73.) Rodriguez presented the claim in

an amended motion for postconviction relief, (Doc. 24-1 at 181–82), and the state

postconviction court granted an evidentiary hearing on the claim, (Doc. 24-1 at 191–92).

Before the evidentiary hearing, Rodriguez moved to further amend the motion for

postconviction relief to add new claims, (Doc. 24-1 at 194–98), and the state

postconviction court denied the motion, (Doc. 24-1 at 333). At the evidentiary hearing,

postconviction counsel advised that Rodriguez was not presenting testimony or evidence

to prove his claim. (Doc. 24-4 at 96–98.) The state postconviction court denied the claim,

(Doc. 24-1 at 335), and Rodriguez appealed, (Doc. 24-1 at 338). On appeal, Rodriguez

asserted that the state postconviction court erred by denying his motion to further amend

his motion for postconviction relief to add new claims. (Doc. 24-1 at 350–55.) He did not

present on appeal the ineffective assistance of counsel claim that he raises in Ground Four

of his federal petition.

Rodriguez failed to “give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate

review process.” , 526 U.S. at 845. If he returns to state court to present the claim,

the state postconviction court will deny the claim as untimely and successive. Fla. R. Crim.

P. 3.850(b), (h). Consequently, the claim is procedurally defaulted in federal court.

, 135 F.3d at 736.

Rodriguez asserts that cause and prejudice under excuse the procedural

default. (Doc. 25 at 15–18.) As stated earlier though, does not apply to a claim

defaulted on state postconviction appeal. , 756 F.3d at 1260 (citing , 566

U.S. at 16)). Ground Four warrants no relief.

E. Ground Five

Rodriguez asserts that counsel was ineffective for not moving to recuse the

sentencing judge for demonstrating bias, prejudice, and personal animus toward Rodriguez

and for not requesting a new sentencing before a different judge. (Doc. 1 at 16–17.) The

Respondent asserts that the claim is unexhausted and procedurally defaulted. (Doc. 21 at

33–37.)

Rodriguez first presented the claim in an amended motion for postconviction relief,

(Doc. 24-1 at 182–83), after the state appellate court reversed the order denying his initial

motion for postconviction relief, (Doc. 24-1 at 166–67.) The state postconviction court

“struck” the claim because an earlier order granting Rodriguez leave to file the amended

motion did not grant Rodriguez leave to present the new claim, the claim was facially

insufficient, and the claim was refuted by the record. (Doc. 24-1 at 188.) The state

postconviction court granted an evidentiary hearing for two unrelated claims. (Doc. 24-1

at 191–92.)

Before the evidentiary hearing, Rodriguez moved to further amend the motion for

postconviction relief to add new claims, (Doc. 24-1 at 194–98), and the state

postconviction court denied the motion, (Doc. 24-1 at 333). At the evidentiary hearing,

postconviction counsel advised that Rodriguez was not presenting testimony or evidence

to support his other claims. (Doc. 24-4 at 96–98.) The state postconviction court denied

the amended motion for postconviction relief, (Doc. 24-1 at 335), and Rodriguez appealed,

(Doc. 24-1 at 338). On appeal, Rodriguez asserted that the state postconviction court erred

by denying his motion to further amend his motion for postconviction relief to add the

new claims, (Doc. 24-1 at 350–55). He did not present on appeal the ineffective assistance

of counsel claim that he raises in Ground Five of his federal petition.

Rodriguez failed to “give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate

review process.” , 526 U.S. at 845. If he returns to state court to present the claim,

the state postconviction court will deny the claim as untimely and successive. Fla. R. Crim.

P. 3.850(b), (h). Consequently, the claim is procedurally defaulted in federal court.

, 135 F.3d at 736. Rodriguez does not assert that cause and prejudice excuse the

procedural default. (Docs. 1 at 16–17, 2 at 31, and 25 at 19.) Ground Five warrants no

relief.

F. Ground Six

Rodriguez asserts that counsel was ineffective for not moving to suppress evidence

obtained from his blood drawn by a paramedic in an ambulance at the scene of the crash.

(Doc. 1 at 18–20.) The Respondent asserts that the claim is procedurally defaulted because

the state postconviction court dismissed the claim on an independent and adequate state

ground. (Doc. 21 at 38–43.)

Rodriguez presented the claim in his motion to further amend the motion for

postconviction relief. (Doc. 24-1 at 194–97.) The state postconviction court denied the

motion to amend because the claim was untimely. (Doc. 24-1 at 333.) Rodriguez appealed,

(Doc. 24-1 at 338), and asserted that the state postconviction court erred by denying his

motion to amend, (Doc. 24-1 at 350–55). The state appellate court per curiam affirmed

without a written opinion. (Doc. 24-1 at 370.) This Court presumes that the state appellate

court also determined that the claim was untimely. , 501 U.S. 797, 803

(1991) (“[W]here . . . the last reasoned opinion on the claim explicitly imposes a procedural

default, we will presume that a later decision rejecting the claim did not silently disregard

that bar and consider the merits.”). Because the time limit imposed on a motion for

postconviction relief is an independent and adequate state ground that bars federal review

of a claim, the claim is procedurally defaulted in federal court. , 894

F.2d 1266, 1267 (11th Cir. 1990).

Rodriguez asserts that cause and prejudice under excuse the procedural

default. (Doc. 25 at 19–22.) Rodriguez must demonstrate that his retained postconviction

counsel was ineffective for not timely presenting the claim (cause) and that the claim has

“some merit” (prejudice). , 566 U.S. at 14. Because Rodriguez fails to meet his

heavy burden under § 2254(e)(2), the Court “may not conduct an evidentiary hearing or

otherwise consider evidence beyond the state-court record based on ineffective assistance

of state postconviction counsel.” , 142 S. Ct. 1718, 1734 (2022).

Rodriguez must demonstrate deficient performance and prejudice under based

on that limited record. ; , 466 U.S. at 687.

Rodriguez contends that a motion to suppress would have succeeded because police

did not comply with § 316.1933(1)(a), Fla. Stat. (2003), and obtain a sample of his blood

only after determining that a police officer had probable cause to believe that Rodriguez

drove a vehicle under the influence of alcohol and caused the death or serious bodily injury

of a person. (Doc. 2 at 31–34.) He contends that Officer Daniel Miller, who directed the

paramedic to obtain the blood sample, did not testify that he either smelled alcohol when

he spoke with Rodriguez or observed behavior that led him to reasonably believe that

Rodriguez was under the influence of alcohol. (Docs. 1 at 18–19 and 2 at 32.) He also

contends that the evidence at trial did not prove that he consented to the blood sample.

(Doc. 1 at 18.)

Rodriguez conflates the burden under with the burden under

§ 316.1933 for a motion to suppress. Under , Rodriguez must demonstrate cause

and prejudice. , 566 U.S. at 14. He must demonstrate—based on the limited state

court record—that the motion to suppress would have succeeded. , 142 S. Ct. at

1734. He cannot satisfy that burden by asserting that the absence of testimony or evidence

at trial proves that the officer lacked probable cause or consent. The trial court never held

a hearing to determine whether police lacked probable cause or consent.

Worse yet for proving prejudice here is that evidence at trial affirmatively proved

consent by Rodriguez. At trial, Officer Miller testified, “Under our policies, in a crash

involving serious bodily injury or death, we automatically request a blood draw.” (Doc. 24-

2 at 499.) He further testified that he requested a blood sample from Rodriguez, (Doc. 24-

2 at 499), and Rodriguez did not act defensively or ask why the detective wanted the

sample. (Doc. 24-2 at 507.) Rodriguez testified that he consented to the blood sample:

Um, it’s hard to say, this was like two years ago. I don’t know

what [the officers] did first, but I do know that they did ask if

they could take my blood. And I told them that’s fine; I had no

problem with that. They did ask me. They were asking me

questions about the accident and how it happened and where I

was coming from.

(Doc. 24-3 at 282.)

Because the state court record demonstrates that Rodriguez consented to the blood

sample, a motion to suppress under § 316.1933 would not have succeeded.

, 51 So. 3d 593, 594–96 (Fla. 5th DCA 2011) (holding that the implied consent

law under § 316.1933(1)(a) does not apply if a defendant consents to the blood sample)

(citing , 384 U.S. 757, 771 (1966)). Consequently, Rodriguez fails

to demonstrate that the claim has “some merit,” and cause and prejudice under

do not excuse the procedural default. Ground Six warrants no relief.

G. Ground Seven

Rodriguez asserts that counsel was ineffective for not retaining H. Chip Walls, a

forensic toxicologist, who would testify that Rodriguez’s blood alcohol content at the time

of the crash was below 0.08. (Doc. 1 at 21–22.) The Respondent asserts that the claim is

procedurally barred because the state postconviction court dismissed the claim on an

independent and adequate state ground. (Doc. 21 at 43–44.)

Rodriguez presented the claim in his motion to further amend the motion for

postconviction relief. (Doc. 24-1 at 197–98.) The state postconviction court denied the

motion to amend because the claim was untimely. (Doc. 24-1 at 333.) Rodriguez appealed,

(Doc. 24-1 at 338), and asserted that the state postconviction court erred by denying his

motion to amend, (Doc. 24-1 at 350–55). The state appellate court per curiam affirmed

without a written opinion. (Doc. 24-1 at 370.) This Court presumes that the state appellate

court also determined that the claim was untimely. , 501 U.S. at 803. Because the time

limit imposed on a motion for postconviction relief is an independent and adequate state

ground that bars federal review of a claim, the claim is procedurally defaulted in federal

court. , 894 F.2d at 1267.

Rodriguez asserts that cause and prejudice under excuse the procedural

default. (Doc. 25 at 22–27.) Rodriguez must demonstrate that his retained postconviction

counsel was ineffective for not timely presenting the claim (cause) and that the claim has

“some merit” (prejudice). , 566 U.S. at 14. Because Rodriguez fails to meet his

heavy burden under § 2254(e)(2), the Court “may not conduct an evidentiary hearing or

otherwise consider evidence beyond the state-court record based on ineffective assistance

of state postconviction counsel.” , 142 S. Ct. at 1734. Rodriguez must demonstrate

deficient performance and prejudice under based on that limited state court

record. , 466 U.S. at 687.

“[ ’s prejudice] burden is particularly ‘heavy where the petitioner alleges

ineffective assistance in failing to call a witness because often allegations of what a witness

would have testified to are largely speculative.’” , 991

F.3d 1357, 1365 (11th Cir. 2021) (quoting , 459 F.3d 1097, 1109

(11th Cir. 2006)). “[F]or that reason, [the Eleventh Circuit has] held that a petitioner’s

own assertions about whether and how a witness would have testified are usually not

enough to establish prejudice from the failure to interview or call that witness.”

Rodriguez failed to present to the state postconviction court an affidavit or

testimony by a forensic toxicologist to demonstrate that the expert would testify in the

manner that he contends. Rodriguez did not attach an affidavit or a transcript to his motion

to amend, (Doc. 24-1 at 194–98), and did not proffer testimony by an expert witness at

the hearing on the motion, (Doc. 24-4 at 83–92).

Because the limited state court record does not demonstrate that the

claim has “some merit,” cause and prejudice under do not excuse the procedural

default. Ground Seven warrants no relief.

H. Ground Eight

Rodriguez asserts that the state trial court violated his Sixth Amendment right to a

jury trial by imposing a sentence that exceeded the statutory maximum based on facts not

determined by the jury. (Doc. 1 at 23–24.)

The Respondent asserts that the claim is unexhausted because Rodriguez failed to

present the claim to the trial court at sentencing. (Doc. 21 at 44–45.) Rodriguez presented

the claim in his brief on direct appeal. (Doc. 24-1 at 55–57.) Because the State of Florida

failed to assert that the claim was unpreserved for review on appeal, (Doc. 24-1 at 78–80),

and because the state appellate court did not clearly and expressly state that its summary

affirmance rested on a state procedural bar, (Doc. 24-1 at 85), this Court presumes that

the state appellate court reviewed the merits of the claim. , 489 U.S. 255,

263 (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 that its judgment rests on a state procedural bar.”); ,

894 F.2d 1268, 1274 (11th Cir. 1990) (“In light of , application of [ ] imprecise

criteria to a state court per curiam affirmance is no longer adequate. Before this court can

deny the petition on the grounds of state procedural default, there must have been a clear

and express statement by the state trial court that its judgment was based upon procedural

default.”).

Rodriguez must demonstrate no reasonable basis for the state appellate court’s

summary denial of relief. (Doc. 24-1 at 85.) , 562 U.S. at 98 (“Where a state court’s

decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be

met by showing there was no reasonable basis for the state court to deny relief.”).

“Other 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 (2000). The jury

found Rodriguez guilty of five counts of manslaughter while driving under the influence.

(Doc. 24-1 at 6–8.) Manslaughter while driving under the influence is a second-degree

felony, punishable by fifteen years of prison. §§ 316.193(3)(c)(3)(a) and 775.082(3)(c), Fla.

Stat. (2003). The trial court imposed a life sentence for each conviction. (Doc. 24-1 at 13.)

The Sixth Amendment required that the jury find facts that permitted a lawful imposition

of a life sentence, instead of the original statutory maximum of fifteen years. Because of

how the trial court instructed the jury and the necessary factual findings contained therein,

no violation occurred here. And to the extent that one did, it was harmless.

Under Florida’s Criminal Punishment Code, “[t]he permissible range for sentencing

shall be the lowest permissible sentence up to and including the statutory maximum, as

defined in § 775.082, for the primary offense and any additional offenses before the court

for sentencing.” § 921.0024(2), Fla. Stat. (2003). “The lowest permissible sentence is the

minimum sentence that may be imposed by the trial court, absent a valid reason for

departure.” To determine the “lowest permissible sentence,” the trial court assesses

points for each conviction, for injury suffered by a victim, and for the defendant’s criminal

history, to calculate a “total sentence points.” § 921.0024(1)(a), Fla. Stat. (2003). “‘Victim

injury’ is scored for physical injury or death suffered by a person as a direct result of any

offense pending before the court for sentencing.” Fla. R. Crim. P. 3.704(d)(9).

§ 921.0021(7)(a), Fla. Stat. (2003). “Victim injury must be scored for each victim physically

injured and for each offense resulting in physical injury whether there are one or more

victims.” Fla. R. Crim. P. 3.704(d)(9). The Criminal Punishment Code permits a trial

court to impose a life sentence if the “total sentence points” exceeds 363. § 921.0024(2),

Fla. Stat. (2003) (“If the total sentence points are greater than or equal to 363, the court

may sentence the offender to life imprisonment.”).

At Rodriguez’s sentencing, the court calculated a “total sentence points” of 824.8

and a “lowest permissible sentence” of 595.5 months in prison, or 49.8 years. (Doc. 24-4

at 73.) The “total sentence points” included seventy-four points for one of the manslaughter

convictions (the “primary offense”), thirty-seven points for each of the remaining four

convictions (“additional offenses”), and 120 points for each death that occurred during the

five offenses (“victim injury”), for a total of 822 points. § 921.0024(1)(a), Fla. Stat. (2003).4

Because the “total sentence points” in Rodriguez’s case exceeded 363, the statute authorized

the life sentences. , 806 So. 2d 576, 577–78 (Fla. 2d DCA 2002).

But because the 600 points for the deaths of the five victims increased the “total

sentence points” above 363 and increased the statutory maximum from fifteen years to life,

§ 921.0024(1)(a), Fla. Stat. (2003), required that the jury to determine facts to

support that increase in the statutory maximum sentence. , 848 So. 2d

1278, 1282 (Fla. 2d DCA 2003) (“Where the addition of victim injury points is a factor

which causes a sentence to be increased beyond the statutory maximum, the facts of victim

injury must be submitted to a jury pursuant to .”).

On the verdict form, the jury found Rodriguez guilty of each of the five

manslaughter offenses. (Doc. 24-1 at 6–8.) The verdict form did not contain a special

interrogatory. (Doc. 24-1 at 6–8.) However, the trial court instructed the jury on

manslaughter in a way that required the jury find that Rodriguez “caused or contributed to

the cause of the deaths”:

To prove the crime of DUI manslaughter, the State must prove

the following elements beyond a reasonable doubt. First, the

defendant drove a vehicle. Second, while driving the vehicle,

the defendant was under the influence of alcoholic beverages

4 Although the record is unclear, the 2.8 point disparity likely arises from prior convictions for minor

offenses. § 921.0024(1)(a), Fla. Stat. (2003). does not apply to a prior conviction that increases

the maximum sentence. 530 U.S. at 490.

to the extent that his normal faculties were impaired or [he]

had a blood alcohol level of 0.08 or more of alcohol grams per

100-milliliters of blood, or a breath alcohol level of 0.08 or

more of alcohol per 120-liters of breath. And, as a result, the

defendant caused or contributed to the cause of the deaths of

Katelynn Bieber, Stephen Casey, Steven Geiger, Cancus

Scheck, or Michael White.

. . .

If you find from the evidence that the defendant had a blood

or breath alcohol level of 0.05 or less, you shall presume the

defendant was not guilty of being under the influence of

alcohol beverages to the extent that his normal faculties were

impaired. If you find from the evidence that the defendant had

a blood or breath alcohol level in excess of 0.05 but less than

0.08, you may consider that evidence with other competent

evidence in determining whether the defendant was under the

influence of alcoholic beverages to the extent that his normal

faculties were impaired. Or, if you find from the evidence that

the defendant had a blood or breath alcohol level of 0.08 or

more, that evidence would be sufficient by itself to establish

that the defendant was under the influence of alcohol to the

extent that his normal faculties were impaired. However, such

evidence may be contradicted or rebutted by other evidence

demonstrating that the defendant was not under the influence

to the extent that his normal faculties were impaired. These

presumptions may be considered along with any other evidence

presented in deciding whether the defendant was under the

influence of alcoholic beverages to the extent that his normal

faculties were impaired.

(Doc. 24-3 at 510–13.)

Because the trial court instructed the jury to determine whether “the defendant

caused or contributed to the cause of the deaths of [the victims],” (Doc.

24-3 at 511), the jury necessarily determined that the victim’s deaths occurred “as a direct

result of the [offenses].” 5 § 921.0021(7)(a) (2003). , 998 So. 2d 494, 505

(Fla. 2008) (“This ‘direct result’ language clearly imparts and includes a causation

requirement, which must exist between the death of the victim and the charged offense

. . . . Sims was not charged with vehicular homicide or any other offense in which the crime

actually involved the impact that caused the death. A conviction under that different

circumstance would have satisfied the causation requirement for the imposition of victim-

injury points.”); , 537 So. 2d 564, 567 (Fla. 1989) (“[T]he [manslaughter

while driving under the influence] statute does not say that the operator of the vehicle must

be the sole cause of the fatal accident. Moreover, the state is not required to prove that the

operator’s drinking caused the accident. The statute requires only that the operation of the

vehicle should have caused the accident. Therefore, any deviation or lack of care on the

5 The addition of victim injury points for a conviction for manslaughter while driving under the influence

is not “double scoring” under the Criminal Punishment Code. , 734 So. 2d 526, 527 (Fla.

4th DCA 1999) (“Appellant contends that the addition of victim injury points constitutes ‘double scoring’

because death of a victim is an element of DUI manslaughter. We disagree and affirm appellant’s sentence.”)

(citing , 711 So. 2d 1166 (Fla. 2d DCA 1998); , 692 So. 2d 199 (Fla. 3d

DCA 1997)).

part of a driver under the influence to which the fatal accident can be attributed will

suffice.”).

Rodriguez contends that the jury did not find (1) whether he caused the death of

the victims or whether he contributed to the death of the victims, (2) whether he was

impaired or whether his blood alcohol content exceeded 0.08 at the time of the accident,

and (3) whether victim injury points applied because the deaths were the direct result of

the crimes. (Doc. 1 at 24.) However, as explained above, the jury necessarily determined

that Rodriguez either caused the death or contributed to the death and that either

Rodriguez’s normal faculties were impaired or his blood alcohol level or breath alcohol level

exceeded the legal limit. (Doc. 24-3 at 510.) Those findings supported the convictions for

manslaughter while driving under the influence. § 316.193(1), (3), Fla. Stat. (2003).

, 537 So. 2d at 567.

Because the jury found Rodriguez guilty of the offenses and necessarily determined

that the victims’ deaths directly resulted from the offenses, the jury’s verdict supported the

imposition of the victim injury points. , 998 So. 2d at 505. Because the victim injury

points increased the maximum sentence for the offenses from fifteen years to life, the trial

court did not violate by imposing the life sentences, and the state appellate court

did not unreasonably deny the claim. , 542 U.S. 296, 303 (2004)

(“Our precedents make clear, however, that the ‘statutory maximum’ for purposes

is the maximum sentence a judge may impose

.” (italics in original)).

Lastly, unrebutted evidence, including Rodriguez’s statements to police and

testimony at trial, proved that Rodriguez drove under the influence of alcohol and exceeded

the speed limit, (Doc. 24-3 at 144–47, 216, 221), slammed on his breaks when the red

Neon suddenly stopped, (Doc. 24-3 at 275), and rear-ended the red Neon, (Doc. 24-3 at

149–52, 275–77). Rodriguez’s car crashed into a McDonald’s sign, (Doc. 24-3 at 277), and

the red Neon crashed into a transformer box and burst into flames, (Docs. 24-2 at 628 and

24-3 at 19). The medical examiner testified that the victims died from internal injuries

caused by the crash. (Doc. 24-2 at 548–52.)

Even if the absence of a specific finding by the jury on the verdict form violated

, a rational jury would have determined that the deaths of the victims were a

“direct result” of the manslaughter offenses, and a violation of the Sixth Amendment was

harmless. § 921.0021(7)(a), Fla. Stat. (2003); , 998 So. 2d at 505.

, 507 U.S. 619, 638 (1993) (holding that a non-structural constitutional error

is harmless on habeas review if the error did not have a “substantial and injurious effect or

influence in determining the jury’s verdict” (citation omitted)); ,

548 U.S. 212, 222 (2006) (“Failure to submit a sentencing factor to the jury, like failure to

submit an element to the jury, is not structural error.”); ,

606 F. App’x 511, 515 (11th Cir. 2015) (applying the harmless error standard to a

claim raised on federal habeas). Accordingly, Ground Eight warrants no relief.

I. Ground Nine

Rodriguez asserts that the state trial court violated his federal right against double

jeopardy by consecutively imposing the life sentences for the five convictions. (Doc. 1 at

25.) He contends that the trial court unlawfully stacked the victim injury points for the

deaths of the five victims and unlawfully stacked the life sentences for the five convictions

because the offenses and the deaths occurred during the same criminal episode. (Doc. 1 at

25.)

The Respondent asserts that the claim is unexhausted because Rodriguez failed to

fairly present the federal nature of his claim to the state appellate court. (Doc. 21 at

50–52.) Rodriguez presented the double jeopardy claim in his brief on direct appeal and

cited , 630 So. 2d 521 (Fla. 1993). (Doc. 24-1 at 57–58.) Because , 630

So. 2d at 523, reviewed whether a state sentencing statute violated double jeopardy,

Rodriguez fairly presented the federal nature of his claim to the state appellate court. The

state appellate court’s per curiam affirmance is an adjudication on the merits, and

Rodriguez must demonstrate no reasonable basis for the summary denial of relief. (Doc.

24-1 at 85); , 562 U.S. at 98.

“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy

Clause does no more than prevent the sentencing court from prescribing greater

punishment than the legislature intended.” , 459 U.S. 359, 366 (1983).

Section 921.0021(7)(a), Fla. Stat. (2003), defines “victim injury” as “the physical injury or

death suffered by a person as a direct result of the primary offense, or any additional offense,

for which an offender is convicted and which is pending before the court for sentencing at

the time of the primary offense.” Section 921.0024(1)(a), Fla. Stat. (2003), requires the

“total sentence points” to include points for the primary offense, additional offenses, and

victim injury. Consequently, the Criminal Punishment Code authorized the stacking of

victim injury points for deaths arising from all five of Rodriguez’s manslaughter

convictions.

Also, , 863 So. 2d 1180, 1187 (Fla. 2003), held that “[a]ny

reasonable consideration of the language of the statute, the history of its enactment, the

uniform statutory treatment of manslaughter offenses, and the case law in existence makes

it clear that the legislative intent is that each death caused in a DUI crash is to be charged

and punished as a separate offense.” A state court’s interpretation of a state statute receives

deference in federal court. , 459 U.S. at 368 (“We are bound to accept the Missouri

court’s construction of that State’s statutes.”).

Because the Florida legislature intended to permit a separate charge and separate

punishment for each death arising from a conviction for manslaughter while driving under

the influence offense and intended to permit stacking of victim injury points for each death

arising from those separate offenses, Rodriguez’s consecutive life sentences do not violate

double jeopardy, and the state appellate court did not unreasonably deny the claim.

, 186 F.3d 948, 952 (D.C. Cir. 1999) (“Where two violations of the

same statute rather than two violations of different statutes are charged, courts determine

whether a single offense is involved not by applying the test, but rather by

asking what act the legislature intended as the ‘unit of prosecution’ under the statute.”

(citing , 437 U.S. 54, 70 n.24 (1978)). Ground Nine warrants no

relief.

J. Ground Ten

Rodriguez asserts that the state trial court violated his Eighth Amendment right

against cruel and unusual punishment by imposing the five consecutive life sentences. (Doc.

1 at 26.)

The Respondent asserts that the claim is unexhausted because Rodriguez failed to

present the claim to the trial court at sentencing. (Doc. 21 at 58–59.) Rodriguez presented

the federal claim in his brief on direct appeal. (Doc. 24-1 at 58–59.) Because the State of

Florida failed to assert that the claim was unpreserved for review on appeal, (Doc. 24-1 at

80–82), this Court presumes that the state appellate court reviewed the merits of the claim.

, 863 F.2d at 807. The state appellate court’s per curiam affirmance is an

adjudication on the merits, and Rodriguez must demonstrate no reasonable basis for the

summary denial of relief. (Doc. 24-1 at 85.) , 562 U.S. at 98.

“The Eighth Amendment, which forbids cruel and unusual punishments, contains

a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’”

, 538 U.S. 11, 20 (2003) (quoting , 501 U.S. 957,

996–97 (1991)). “‘[F]ederal courts should be reluctant to review legislatively mandated

terms of imprisonment, and [ ] successful challenges to the proportionality of particular

sentences should be exceedingly rare.’” , 538 U.S. at 22 (quoting , 454

U.S. 370, 374 (1982)). “[A] reviewing court must make a threshold determination that the

sentence imposed is grossly disproportionate to the offense committed and, if it is grossly

disproportionate, the court must then consider the sentences imposed on others convicted

in the same jurisdiction and the sentences imposed for commission of the same crime in

other jurisdictions.” , 429 F.3d 1012, 1024 (11th Cir. 2005)

(quoting , 406 F.3d 1322, 1323 (11th Cir. 2005)).

, 463 U.S. 277, 292 (1983). “‘‘In general, a sentence within the limits imposed by

statute is neither excessive nor cruel and unusual under the Eighth Amendment.’”

, 429 F.3d at 1024 (quoting , 414 F.3d 1158, 1168

(10th Cir. 2005)).

Rodriguez does not cite clearly established law, determined by the United States

Supreme Court, that the state appellate court either ruled contrary to or unreasonably

applied. , 538 U.S. at 72 (“Through this thicket of Eighth Amendment

jurisprudence, one governing legal principle emerges as ‘clearly established’ under

§ 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of

years.”). As explained above, § 921.0024(2), Fla. Stat. (2003), authorized the life sentences

for the convictions because “the total sentence points [were] greater than or equal to 363.”

The statute further permitted the trial court to impose sentences for the primary offense

and additional offenses consecutively. § 921.0024(2), Fla. Stat. (2003) (“The sentencing

court may impose such sentences [for the primary offense and any additional offenses]

concurrently or consecutively.”).6 The Florida legislature authorized consecutive life

sentences for a defendant who commits crimes with aggravating circumstances, such as the

loss of life of more than one person.

Because evidence proved that Rodriguez recklessly raced the driver in the Neon on

a densely populated city street while under the influence of alcohol and contributed to the

6 § 921.16(1), Fla. Stat. (2003) (“A defendant convicted of two or more offenses charged in the

same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits shall

serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences

be served consecutively.”).

cause of the death of five young people and because the consecutive life sentences do not

exceed the maximum authorized by the statutes, the state court did not unreasonably

conclude that the sentences were neither excessive nor cruel. , 429 F.3d at

1024; , 304 F.2d 520, 521 (5th Cir. 1962) (“‘Punishment is not

cruel and unusual, unless it is so greatly disproportionate to the offence committed as to be

completely arbitrary and shocking to the sense of justice.’” (citing ,

217 U.S. 349 (1910)). Ground Ten warrants no relief.

V. 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.C. § 2253(c)(1). Instead, a district court or

court of appeals must first issue a certificate of appealability (COA). . To obtain a COA,

a petitioner must show that “jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” , 537 U.S.

322, 326 (2003); 28 U.S.C. § 2253(c)(2). Rodriguez has not made that showing. And

because Rodriguez is not entitled to a COA, he is also not entitled to appeal in forma

pauperis.

It is therefore ORDERED that Rodriguez’s Petition for Writ of Habeas Corpus

(Doc. 1) is DENIED. The CLERK is directed to enter judgment against Rodriguez and

in Respondent’s favor and to CLOSE this case.

ORDERED in Tampa, Florida on March 24, 2023.

pate Gnph Mizelle

United States District Judge

41