Burgess v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-61946-CIV-ALTMAN

AL L. BURGESS,

Petitioner,

v.

RICKY D. DIXON, SECRETARY,

DEPARTMENT OF CORRECTIONS,

Respondent.1

______________________________________/

ORDER

Our Petitioner, Al L. Burgess, is a Florida prisoner who’s filed a habeas petition under 28

U.S.C. § 2254, challenging the constitutionality of his state-court conviction and sentence. See Petition

[ECF No. 1]. The state courts have uniformly rejected Burgess’s post-conviction motions. Because

those courts reasonably applied federal law—and reasonably determined the facts—we now DENY

the Petition in full.

THE FACTS

On February 24, 1997, the State of Florida charged Burgess by Information with three crimes:

armed kidnapping (Count 1); armed sexual battery (Count 2); and aggravated battery while armed with

a deadly weapon (Count 3). See Information [ECF No. 10-1] at 11–13. Burgess proceeded to trial,

where a jury found him guilty of all three counts. See Judgment [ECF No. 10-1] at 15–16. For these

1 The original Respondent in this case, Mark S. Inch, retired from his position as Secretary of the

Florida Department of Corrections on November 19, 2021. Former Secretary Inch’s successor, Ricky

D. Dixon, has been automatically substituted as the Respondent. See FED. R. CIV. P. 25(d) (“An action

does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise

ceases to hold office while the action is pending. The officer’s successor is automatically substituted

as a party.”).

crimes, a state judge sentenced Burgess as a “habitual violent felony offender” (“HVFO”) to three

mandatory-minimum life terms. See Sentencing Orders [ECF No. 10-1] at 18–26.

After sentencing, Burgess (through counsel) filed a motion to correct his sentence under FLA.

R. CRIM. P. 3.800(b). See 3.800(b) Motion [ECF No. 10-1] at 30–35. There, Burgess advanced three

arguments: (1) that the sentencing court failed to “orally impose minimum mandatory terms of

imprisonment”; (2) that his life sentence on Count 3 was illegal because it exceeded the maximum

statutory penalty of “30 years in prison”; and (3) that “the written judgment of conviction should

reflect that the defendant was convicted of kidnapping,” not armed kidnapping. Id. at 32–33. The State

conceded Burgess’s first two arguments but, with respect to the third, argued that he was properly

convicted on Count 1 of “armed kidnapping.” Response to 3.800(b) Motion [ECF No. 10-1] at 40

(“[T]he State of Florida does not oppose the GRANTING of relief . . . such that any minimum

mandatory sentences are stricken, and the sentence on [Count 3] (aggravated battery with a deadly

weapon) is reduced to 30 years incarceration. All other relief . . . as to Burgess’s conviction of armed

kidnapping under [Count 1] should be DENIED[.]”). With this concession in hand, the state trial

court issued an amended sentence, nunc pro tunc to July 16, 1999, which imposed two concurrent life

sentences (without a mandatory minimum) on Counts 1 and 2 and a thirty-year sentence on Count 3,

to be served consecutively to the sentences for Counts 1 and 2. See Amended Sentencing Orders [ECF

No. 10-1] at 42–47.

On June 20, 2007,2 Burgess returned to state court and filed a “Motion to Correct Illegal

Sentence” under FLA. R. CRIM. P. 3.800(a). See 3.800(a) Motion [ECF No. 10-1] at 272–76. In that

motion, Burgess argued that his conviction as a “habitual violent felony offender” was illegal under

2 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is

delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.

2009). “Absent evidence to the contrary, [courts] assume that a prisoner delivered a filing to prison

authorities on the date that he signed it.” Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014).

Florida law, and he asked to be resentenced under Florida’s “sentencing guideline scoresheet.” Id. at

272. In its response3 to Burgess’s 3.800(a) Motion, the State agreed that Burgess’s “HVFO designation

was ‘illegal[.]’” 3.800(a) Response [ECF No. 10-1] at 278. As the State explained, “[a]lthough a 1996

version of [FLA. STAT. § 775.084(1)(b)] authorized a HVFO designation for life felonies, adoption of

the legislation providing this authorization has been held unconstitutional.” Ibid. (citing Ford v. State,

868 So. 2d 631, 631 (Fla. 2d DCA 2004)). At the same time, the State disagreed that Burgess was

legally entitled to a resentencing hearing because, in the State’s view, he could have lawfully received

the same sentence—with or without the HVFO designation. See id. at 279 (“[H]e does not provide

any factual basis to establish that the life sentences imposed were actually ‘illegal’ or a ‘kind of

punishment that no judge under the entire body of sentencing statutes could possibly inflict under any

set of factual circumstances.’” (quoting Calixte v. State, 162 So. 3d 283, 284 (Fla. 4th DCA 2015))). The

state postconviction court adopted the State’s 3.800(a) Response, removed Burgess’s HVFO

designation, and denied Burgess’s request for a resentencing. See Order Granting in Part and Denying

in Part 3.800(a) Motion [ECF No. 10-1] at 281.

Burgess appealed this ruling to the Fourth DCA. See 3.800(a) Notice of Appeal [ECF No. 10-

1] at 286. On January 6, 2016, the Fourth DCA agreed with Burgess that the lower court “was required

to reconsider Appellant’s sentences under the sentencing laws in effect at the time of his offenses.”

Burgess v. State, 182 So. 3d 841, 842 (Fla. 4th DCA 2016). The appellate court thus remanded the case

for a resentencing, noting that “the trial court is free to impose departure sentences if valid grounds

for departure are proven.” Ibid.; see also Order Vacating Prior Sentences [ECF No. 10-2] at 91 (“The

Court does hereby VACATE the Defendant’s prior sentences on all three counts in this case.”).

3 The State filed this response on April 9, 2015—nearly eight years after Burgess gave his 3.800(a)

Motion to prison officials for mailing. See 3.800(a) Response [ECF No. 10-1] at 279. The record gives

us no explanation for this delay.

Burgess’s resentencing took place over two days—on September 6 and 12, 2016. See generally

Resentencing Hr’g Tr. [ECF No. 11-1] at 1–85. In anticipation of that hearing, the State contended

that Burgess “is subject to the provisions of [FLA. STAT. § 921.0016(3)(r)] and a proper candidate for

imposition of an aggravated departure sentence.” State’s Motion to Aggravate Sentence [ECF No. 10-

2] at 98. Burgess, represented by counsel, insisted that an aggravated sentence wasn’t necessary. See

Resentencing Hr’g Tr. [ECF No. 11-1] at 64–65 (“The score sheet I think he scores 20 years. The only

way you can give higher than that is find he’s upward departure. . . . Judge, honestly we should look

at the last 20 years of what is going on. We put that package of mitigation to show you he’s been doing

DOC. He’s not sitting idly. He’s not involved in physical altercations. He’s trying to better himself.”).

Ultimately, though, the sentencing judge agreed with the State and found that an upward departure

was warranted. See Order on Resentencing [ECF No. 10-2] at 101–02 (“The State argued the maximum

penalty is warranted by the repeated commission of egregious conduct as established by the records

admitted during this proceeding. This Court concludes likewise.”). As a result, the resentencing court

reimposed life sentences on Counts 1 and 2, but reduced Burgess’s sentence on Count 3 to fifteen

years. See Second Amended Sentencing Orders [ECF No. 10-2] at 105–13.

Burgess, now pro se again, appealed his renewed sentence to the Fourth DCA. See Resentencing

Notice of Appeal [ECF No. 10-2] at 120. In that appeal, he raised five arguments: (1) that the trial

court erred in denying a “motion to correct sentencing error” when it found that “the jurisdictional

time frame had expired to rule upon said motion”; (2) that “the trial court failed to give the oral

pronouncement for the reason of the departure sentences”; (3) that the trial court improperly

considered Burgess’s previous convictions for “indecent assault and kidnapping” to “support the

maximum guidelines sentence range and the departure sentences”; (4) that the trial court improperly

relied on other convictions, “which [were not] committed prior to the conviction of the primary

offense”; and (5) that the trial court improperly designated Burgess as a “capital sexual predator[.]”

Resentencing Initial Brief [ECF No. 10-2] at 149–51.

On July 25, 2018, the Fourth DCA affirmed the sentencing court in almost every respect—

but it remanded the case for the trial judge to correct a scrivener’s error in the sentencing order. See

Burgess v. State, 252 So. 3d 767, 767 (Fla. 4th DCA 2018) (“Appellant raises five issues on appeal. We

find them all to be without merit. However, we remand for the trial court to correct a scrivener’s error

in the basis for designating appellant a sexual predator. The written order mistakenly based the

designation on a conviction for sexual battery upon a child under section 794.011(2)(a). In fact,

appellant was convicted of armed sexual battery on a person over twelve but under eighteen under

section 794.011(4)(a).”). The Fourth DCA’s mandate issued on September 28, 2018. See Resentencing

Mandate [ECF No. 10-2] at 210.

On June 12, 2019, Burgess filed a third motion for postconviction relief under FLA. R. CRIM.

P. 3.850,4 challenging some alleged errors in his resentencing. See Third Postconviction Motion [ECF

No. 10-2] at 253–63. In this Third Postconviction Motion, Burgess advanced the following three

claims: (1) that his resentencing counsel “rendered ineffective assistance for failing to object to the

resentencing court’s imposition of a departure sentence when no legitimate reason was available to

support the departure,” id. at 256; (2) that his resentencing counsel “rendered ineffective assistance by

failing to object to the resentencing court’s failure to orally articulate reasons for imposing a departure

sentence,” id. at 259; and (3) that “the trial court’s written order does not comply with its oral

pronouncement,” id. at 261. The state postconviction court denied the Third Postconviction Motion

in a written order. See Order Denying Third Postconviction Motion [ECF No. 10-2] at 273–77.

Burgess appealed the denial of his Third Postconviction Motion to the Fourth DCA, see Third

4 Burgess’s two previous Rule 3.850 motions were fully adjudicated before his resentencing and are

not relevant to this Petition. See generally First Postconviction Motion [ECF No. 10-1] at 125–74;

Second Postconviction Motion [ECF No. 10-1] at 216–26.

Postconviction Motion Notice of Appeal [ECF No. 10-2] at 279, which affirmed the trial court’s

decision in an unwritten opinion, see Burgess v. State, 292 So. 3d 748, 748 (Fla. 4th DCA 2020). The

Fourth DCA’s mandate issued on May 1, 2020. See Third Postconviction Motion Mandate [ECF No.

10-3] at 8.

Burgess filed this federal Petition on September 17, 2020. See Petition at 30. In its Response,

the Respondent initially maintained that the Petition was untimely under § 2244(d) because “409 days

ran untolled” from September 28, 2018—when the “mandate on the affirmance of the new sentence

after the de novo resentencing hearing issued[.]” Response to Order to Show Cause (“Response”)

[ECF No. 9] at 12. We originally agreed with the Respondent on this point and entered an Order

dismissing the Petition as time-barred. In doing so, we said the following:

Recall that, on June 12, 2019, the Petitioner filed his [Third Postconviction Motion].

By that time, however, 257 days of the limitations period’s 365 days had passed. The

period then restarted on May 1, 2020, when the Fourth DCA issued its mandate

affirming the trial court’s Order Denying the [Third Postconviction Motion]. And

therein lies the problem: Between May 1, 2020—when the limitations period

restarted—and September 17, 2020—when this Petition was filed—139 more days

elapsed. And, when we add 139 to 257, we get 396. Since 396 is greater than 365, the

Petitioner’s claim is time-barred.

Burgess v. Inch, 2021 WL 2433958, at *3 (S.D. Fla. June 15, 2021) (Altman, J.) (cleaned up).

But, on July 7, 2021, Burgess filed a “Motion to Alter or Amend Judgment” under FED. R.

CIV. P. 59(e), contending that we (and the Respondent) had miscalculated. We had assumed that the

limitations period began on September 28, 2018. In Burgess’s view, though, we should’ve afforded

him “90 days to seek certiorari review in the United States Supreme Court” and thus shouldn’t have

started to calculate the limitations period until after this 90-day period had expired. Rule 59(e) Motion

[ECF No. 20] at 2; see also id. at 1 (“[T]his Court calculated that the Petitioner’s Conviction and

Sentence became final on September 28, 2018, the date the [Fourth DCA] issued the mandate

affirming the Petitioner’s Resentencing. The Petitioner submits that this was error.”).

Seeing some merit in this argument, we ordered the Respondent to file a new Response to

Burgess’s Rule 59(e) Motion. See Paperless Order [ECF No. 21]. And, on August 10, 2021, the

Respondent conceded the point and “agree[d] that the Petitioner’s petition was timely.” Response to

Rule 59(e) Motion [ECF No. 22] at 3. Since the Respondent waived its timeliness defense, we granted

Burgess’s Rule 59(e) Motion, reopened the case, and agreed to adjudicate Burgess’s Petition on the

merits. See Paperless Order [ECF No. 23] (“The Respondent, though, opted to waive its timeliness

defense in this case and acknowledged its confusion as to its reading of Eleventh Circuit precedent. A

limitations defense is waivable, and it would amount to an abuse of discretion for us to override a

State’s deliberate waiver of a limitations defense.” (citing Day v. McDonough, 547 U.S. 198, 202 (2006)

(cleaned up)). So here we are.

THE LAW

I. The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

AEDPA instructs district courts to deny any claim that was “adjudicated on the merits” in a

state-court proceeding unless that adjudication “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 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.” Harrington v. Richter, 562 U.S.

86, 97–98 (2011) (summarizing 28 U.S.C. § 2254(d)–(e)). To have “adjudicated [the claim] on the

merits,” the state court need not have issued any kind of formal opinion or even outlined its reasoning.

Id. at 99 (“When a federal claim has been presented to a state court and the state court has denied

relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of

any indication or state-law procedural principles to the contrary.”). Rather, when a state court doesn’t

articulate its reasons for the denial, the federal court must “‘look through’ the unexplained decision to

the last related state-court decision that does provide a rationale” and “then presume that the

unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

“Clearly established Federal law” means “the holdings, as opposed to the dicta, of [the United States

Supreme Court’s] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529

U.S. 362, 412 (2000). To be “contrary to clearly established federal law, the state court must either (1)

apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a

different result from the Supreme Court when faced with materially indistinguishable facts.” Ward v.

Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (cleaned up).

For “a state court’s application of [Supreme Court] precedent” to be “‘unreasonable, the state

court’s decision must have been more than incorrect or erroneous. The state court’s application must

have been objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (cleaned up). “[I]t

is not an unreasonable application of clearly established Federal law for a state court to decline to

apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Richter, 562

U.S. at 101. “And an unreasonable application of those holdings must be objectively unreasonable,

not merely wrong; even clear error will not suffice. To satisfy this high bar, a habeas petitioner is

required to 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.” Woods v. Donald, 575 U.S. 312, 316 (2015)

(cleaned up).

Section 2254(d) similarly prohibits federal judges from reevaluating a state court’s factual

findings unless those findings were “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). To establish that a state

court’s factual findings were unreasonable, “the petitioner must rebut ‘the presumption of correctness

[of a state court’s factual findings] by clear and convincing evidence.’” Ward, 592 F.3d at 1155–56

(quoting 28 U.S.C. § 2254(e)(1)).

“AEDPA’s standard is intentionally difficult to meet.” Woods, 575 U.S. at 315 (cleaned up).

When reviewing state criminal convictions on collateral review, “federal judges are required to afford

state courts due respect by overturning their decisions only when there could be no reasonable dispute

that they were wrong. Federal habeas review thus exists as a guard against extreme malfunctions in

the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. at

316 (cleaned up).

Even if a petitioner meets AEDPA’s “difficult” standard, he must still show that any

constitutional error had a “substantial and injurious effect or influence” on the verdict. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993). The Brecht harmless-error standard requires habeas petitioners

to prove that they suffered “actual prejudice.” Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307

(11th Cir. 2012). As the Supreme Court recently explained, while the passage of AEDPA “announced

certain new conditions to [habeas] relief,” it didn’t eliminate Brecht’s actual-prejudice requirement.

Brown v. Davenport, 142 S. Ct. 1510, 1524 (2022). In other words, a habeas petitioner must satisfy Brecht,

even if AEDPA applies. See id. at 1526 (“[O]ur equitable precedents remain applicable ‘whether or

not’ AEDPA applies.” (citing Fry v. Pliler, 551 U.S. 112, 121 (2007)). In short, a “federal court must

deny relief to a state habeas petitioner who fails to satisfy either [Brecht] or AEDPA. But to grant relief,

a court must find that the petition has cleared both tests.” Id. at 1524 (emphasis in original); see also

Mansfield, 679 F.3d at 1307 (“[A] habeas petition cannot be successful unless it satisfies both [AEDPA]

and Brecht.”).

II. AEDPA’s Procedural Requirements

“[A] person in custody pursuant to the judgment of a State court” has one year to file a habeas

petition in federal court. 28 U.S.C. § 2244(d)(1). That one-year period “runs from the latest of” the

following dates:

(A) the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created

by State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by such

State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable to

cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1)(A)–(D). This limitations defense is, of course, waivable. See Paez v. Sec’y, Fla.

Dep’t of Corr., 947 F.3d 649, 655 (11th Cir. 2020) (explaining that the State may express its intent to

“waive the limitations bar”).

Beyond meeting this one-year window, though, federal habeas petitioners must also exhaust

their claims by “properly present[ing] [them] to the state courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 848

(1999) (emphasis in original). Specifically, federal habeas petitioners must “fairly present every issue

raised in [their] federal petition to the state’s highest court, either on direct appeal or on collateral

review.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (cleaned up). “If a petitioner fail[ed] to

‘properly’ present his claim to the state court—by exhausting his claim[ ] and complying with the

applicable state procedure—prior to bringing his federal habeas claim, then [§ 2254] typically bars

[courts] from reviewing the claim.” Ibid. In other words, where a petitioner has not “properly presented

his claims to the state courts,” the petitioner will have “procedurally defaulted his claims” in federal

court. O’Sullivan, 526 U.S. at 848.

All that said, “[s]tates can waive procedural bar defenses in federal habeas proceedings,

including exhaustion.” Vazquez v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 964, 966 (11th Cir. 2016) (cleaned

up)). But “[a] State shall not be deemed to have waived the exhaustion requirement . . . unless the

State, through counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3) (emphasis added); see

also McNair v. Campbell, 416 F.3d 1291, 1304 (11th Cir. 2005) (same).

III. Ineffective Assistance of Counsel

The Sixth Amendment affords a criminal defendant the right to “the Assistance of Counsel

for his defen[s]e.” U.S. CONST. amend. VI. “The benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S.

668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a habeas litigant must

demonstrate “that (1) his counsel’s performance was deficient and ‘fell below an objective standard of

reasonableness,’ and (2) the deficient performance prejudiced his defense.” Raleigh v. Sec’y, Fla. Dep’t of

Corr., 827 F.3d 938, 957 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 687–88). This same standard

applies to alleged errors made by both trial counsel and appellate counsel. See Farina v. Sec’y, Fla. Dep’t

of Corr., 536 F. App’x 966, 979 (11th Cir. 2013) (“A claim of ineffective assistance of appellate counsel

is evaluated under the same standard as for trial counsel.”).

To establish the first prong (deficiency), “a petitioner must [show] that no competent counsel

would have taken the action that his counsel did take[.]” Chandler v. United States, 218 F.3d 1305, 1315

(11th Cir. 2000) (en banc) (emphasis added). So, if “some reasonable lawyer at the trial could have

acted, in the circumstances, as defense counsel acted at trial[,]” counsel could not have performed

deficiently. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (quoting White v. Singletary,

972 F.2d 1218, 1220 (11th Cir. 1992)).

As for the second prong (prejudice), “a defendant is prejudiced by his counsel’s deficient

performance if ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Porter v. McCollum, 558 U.S. 30, 40 (2009) (quoting

Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. To succeed on this prong, a defendant must

show that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id. at 687.

ANALYSIS

I. The Petition is Exhausted and § 2254(d) Applies

In his Petition, Burgess asserts two grounds for relief—both of which allege that counsel

rendered ineffective assistance during his resentencing. In Ground One, Burgess argues that the

resentencing court “was prohibited to impose the current upward guidelines departure sentences” and

that counsel was ineffective “for not objecting to the upward departure life sentences.” Petition at 16.

In Ground Two, Burgess castigates counsel for failing to object “when the sentencing judge imposed

upward guidelines departure sentences and did not orally articulate the reason for departure at the

time the sentences were imposed[.]” Id. at 24. Before we can address the merits of these two claims,

though, AEDPA requires that we determine whether Burgess “exhausted the remedies available in

the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A). Although the Respondent can “expressly waive”

this requirement, id. § 2254(b)(3), the Response is silent on this issue, see generally Response.5

To exhaust a claim, a habeas petitioner must “present the state courts with the same claim he

urges upon the federal courts.” McNair, 416 F.3d at 1302 (quoting Picard v. Connor, 404 U.S. 270, 275

(1971)). This occurs once the petitioner has “present[ed] every issue raised in his federal petition to

the state’s highest court, either on direct appeal or on collateral review.” Ward, 592 F.3d at 1156. While

the claims raised in a federal petition need not be a “verbatim restatement of the claims brought in

state court,” they must be sufficiently similar so that a “reasonable reader would understand each

5 The Respondent acknowledges that both Grounds One and Two were “presented in the post-

conviction relief motion in state court.” Response at 22, 26. But this perfunctory statement isn’t the

sort of “express waiver” § 2254(b) demands. See Telamy v. Sec’y, Fla. Dep’t of Corr., 789 F. App’x 756,

757 (11th Cir. 2019) (“[A] state’s mere failure to raise exhaustion does not constitute a waiver.”).

claim’s particular legal basis and specific factual foundation.” McNair, 416 F.3d at 1302 (quoting Kelley

v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1344–45 (11th Cir. 2004)).

We’re satisfied that both of the Petition’s claims have been fully exhausted. Burgess raised the

substance of Grounds One and Two in his Third Postconviction Motion in state court. See Third

Postconviction Motion [ECF No. 10-2] at 257–58 (“Thus, the Defendant submits that there was

absolutely no reason for Sentencing Counsel to not object to the Resentencing Court’s imposition of

a departure sentence in the Defendant’s case. . . . Sentencing Counsel was aware of the general rule

that when a court fails to impose a departure reason at one hearing a new reason cannot be articulated

at a new hearing.”); id. at 259 (“Sentencing Counsel rendered ineffective assistance by failing to object

to the Resentencing Court’s omission of a contemporaneously articulated departure reason that was

required by rule to be given when passing sentence.”).

Of course, “[i]n Florida, exhaustion usually requires not only the filing of a FLA. R. CRIM. P.

3.850 motion, but an appeal from its denial.” Nieves v. Sec’y, Fla. Dep’t of Corr., 770 F. App’x 520, 521

(11th Cir. 2019) (quoting Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979)). But Burgess also

appealed the state postconviction court’s denial of his Third Postconviction Motion to the Fourth

DCA and, in so doing, argued that the state postconviction court had erred in denying those two

grounds. See Resentencing Initial Brief [ECF No. 10-2] at 291 (“The Postconviction Court erred in

summarily denying Appellant’s claim that Sentencing Counsel rendered ineffective assistance of

counsel by failing to object to the departure sentence imposed . . . . The Postconviction Court erred

in summarily denying Ground Two of [the Third Postconviction Motion] where Sentencing Counsel

did not object when the Resentencing Court failed to orally articulate reasons contemporaneously with

imposing the Appellant’s sentence[.]”). Since “every issue raised in [Burgess’s] federal petition” was

also presented to the highest state court Burgess could’ve appealed to, the Petition’s claims have been

fully exhausted. Ward, 592 F.3d at 1156.

We’ll thus review Grounds One and Two on their merits. AEPDA, though, rather strictly

circumscribes our review of “any claim that was adjudicated on the merits in State court

proceedings[.]” 28 U.S.C. § 2254(d). In resolving those claims, therefore, we ask only whether the state

court’s decision “involved an unreasonable application of[] clearly established federal law” or “was

based on an unreasonable determination of the facts[.]” Ibid. The last state court to adjudicate

Burgess’s claims on the merits was the Fourth DCA, which issued an unwritten opinion summarily

affirming the resentencing court. See Burgess, 292 So. 3d at 748. We therefore perform a “‘look-through’

the unexplained decision to the last related state-court decision that does provide a relevant rationale.”

Wilson, 138 S. Ct. at 1192. In our case, the resentencing court adopted and incorporated “the legal and

factual reasoning that is contained in the State’s Response[.]” Order Denying Third Postconviction

Motion [ECF No. 10-2] at 276. Our task, then, is to review the reasonableness of the resentencing court’s

order—with a particular emphasis on those portions of the State’s Third Postconviction Motion

Response that court adopted. See Cardona v. Dixon, 2022 WL 2158715, at *6 (S.D. Fla. June 14, 2022)

(Altman, J.) (“Since the [Fourth DCA] affirmed without a written decision, we ‘look through’ to the

next reasoned decision (i.e., the trial court’s Order Denying Post Conviction Relief, which

incorporated the State’s Response) as the presumptive reasoning of the Fourth DCA.”). As we’ll soon

see, when we analyze Burgess’s claims in that deferential light, we have no choice but to deny them

both.

II. Ground One

Ground One has a long and tortuous history. In it, Burgess maintains that his resentencing

counsel should’ve objected when the resentencing court imposed an “upward departure sentence,”

because, at the time of his resentencing (Burgess says), Florida law “prohibited the departure sentences

on Counts 1 and 2.” Petition at 21. To understand this argument, we have to go way back to Burgess’s

original sentence in 1999, when the trial court sentenced Burgess as a “habitual violent felony

offender.” Id. at 14 (“Petitioner’s HVFO designations [were] originally imposed on July 16, 1999[.]”);

see also Sentencing Orders [ECF No. 10-1] at 18–26. According to Burgess, even though this HVFO

enhancement was “deleted on August 8, 2000,” the 2000 state court still imposed life sentences on

Counts 1 and 2. Petition at 16 (emphasis added). This is important because, in Burgess’s view, the

2000 state court couldn’t have imposed a life sentence unless: (1) the HVFO enhancement applied, or

(2) the court departed upward from the guideline range. See ibid. Since (Burgess says) the 2000 state

court didn’t apply the HVFO enhancement, it (he surmises) must’ve departed upward. See id. at 18. And,

because the Fourth DCA ultimately reversed the 2000 sentence, see Burgess, 182 So. 3d at 842, Burgess

believes as a matter of Florida law that “the 2016 resentencing court was prohibited to impose the

current upward guidelines departure sentences” for a second time. Petition at 16; see also, e.g., Shull v.

Dugger, 515 So. 2d 748, 750 (Fla. 1987) (“[W]e hold that a trial court may not enunciate new reasons

for a departure sentence after the reasons given for the original departure sentence have been reversed

by an appellate court.”).

The Respondent, predictably, has a different view. As it sees things, the HVFO designation

wasn’t stricken until 2015. See Response at 24 (“Respondent asserts that the habitual offender

designation was not removed in 2000 on the 3.800(b)(2) motion.”). Of course, if the Respondent is

right, then Burgess continued to serve an HVFO sentence after 2000, and Florida law didn’t prohibit

the resentencing court from departing upward in 2016. See id. at 23–24 (“Therefore, had the sentences

been challenged prior to 2015 based on an argument that the sentences were illegal departures, the

trial court would have been afforded the opportunity to impose a departure sentence with valid

reasons on remand.”). The Respondent offers three arguments for its position: (1) that, until Burgess’s

original sentence was vacated in 2015, “all parties proceeded as if Petitioner was serving a habitual

offender sentence,” id. at 23; (2) that the HVFO sentence couldn’t have been vacated in 2000 because

the sentencing court’s new sentence was “entered nunc pro tunc” to the original 1999 judgment—which

had originally imposed the HVFO enhancement, id. at 24–25; and (3) that, before the 2016 resentencing,

the Fourth DCA had expressly held that “the trial court was free to impose a departure sentence on

remand,” id. at 26.

To properly adjudicate this claim, we must first take two detours. One, we need to clarify what

exactly we can (and can’t) review. As a federal court, we can (of course) decide whether Burgess “is in

custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

At the same time, “[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.” McCullough v. Singletary, 967 F.2d

530, 535 (11th Cir. 1992). This dichotomy between what we can and can’t review plays very much in

the foreground of a case like ours, where the petitioner is alleging that his lawyer violated the U.S.

Constitution (rendering ineffective assistance) by “fail[ing] . . . to raise a state law claim[.]” Pinkney v.

Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017). In such a case, we can assess whether the state court

properly applied Strickland (and its Sixth Amendment progeny), but we cannot second-guess the state

court’s construction of state law. See ibid. (“And although ‘the issue of ineffective assistance—even

when based on the failure of counsel to raise a state law claim—is one of constitutional dimension,’

we ‘must defer to the state’s construction of its own law’ when the validity of the claim that appellate

counsel failed to raise turns on state law.” (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th

Cir. 1984))); see also Pierre v. Dixon, 2022 WL 3549781, at *6 (S.D. Fla. Aug. 18, 2022) (Altman, J.) (“In

other words, even when a habeas petitioner alleges that counsel was ineffective in his handling of

a state-law issue, a federal court may review the state court’s application of the Strickland test. What we

may not do, however, is second-guess the state court’s resolution of state law.” (emphasis in original &

cleaned up)).

Two, having set out these ground-rules, we must now journey into the sometimes-convoluted

world of Florida sentencing law. According to the Information, Burgess committed the charged

offenses on July 17, 1996. See Information [ECF No. 10-1] at 11–12. Under Florida law, therefore, his

sentence must comply with whatever laws were in effect on July 17, 1996. See, e.g., Vonador v. State, 857

So. 2d 323, 324 (Fla. 2d DCA 2003) (“[I]t is axiomatic that a criminal sentence is governed by the laws

in effect at the time of the offense.”); Larkins v. State, 739 So. 2d 90, 96 n.5 (Fla. 1999) (“Although the

statute has since changed in that persons convicted of capital crimes are no longer eligible for parole,

Larkins’ sentence is controlled by the law in effect at the time he committed this offense.”). To cut

right to it, Burgess’s sentence must conform to Florida’s 1994 Sentencing Guidelines.6 See FLA. R.

CRIM. P. 3.703(a) (“This rule implements the 1994 sentencing guidelines, as amended, in strict

accordance with chapter 921, Florida Statutes. This rule applies to offenses committed on or after

October 1, 1995, or as otherwise indicated.”); accord Plasencia v. Sec’y, Fla. Dep’t of Corr., 606 F. App’x

511, 514 (11th Cir. 2015) (“Thus, individuals who committed crimes between October 1, 1995 and

May 24, 1997, were sentenced under the 1994 sentencing guidelines.”).

So, how did the 1994 Sentencing Guidelines work? Based on a series of calculations—which

considered factors like the severity of the crime, the defendant’s prior criminal history, and the extent

of the victim’s injuries—the State computed the defendant’s “total sentence points,” which it could

then easily convert into a “presumptive sentence.” FLA. R. CRIM. P. 3.703(d)(26)–(27). Assuming no

objections to these calculations, the trial court would then use the “presumptive sentence” as a baseline

6 The Florida legislature adopted the “1995 Sentencing Guidelines” with the intention of having them

apply to all felony offenses committed on or after October 1, 1995. See Trapp v. State, 760 So. 2d 924,

928 (Fla. 2000) (noting that the “amended guidelines provisions became effective” on October 1,

1995). But the Florida Supreme Court later held that the legislature’s initial adoption of the 1995

Sentencing Guidelines violated the “single subject rule” set out in “article III, section 6 of the Florida

Constitution.” Heggs v. State, 759 So. 2d 620, 627 (Fla. 2000). Even more confusingly, on May 24, 1997,

the Florida legislature eliminated the constitutional error the Florida Supreme Court had identified in

Heggs by properly reenacting the 1995 Sentencing Guidelines. Cf. Trapp, 760 So. 2d at 927 (“[T]he

general mechanism for curing single subject rule violative chapter laws is through the Legislature’s

biennial adoption of the Florida Statutes.”). What this all means is that “the 1994 Sentencing

Guidelines apply to offenses committed from January 1, 1994, through May 24, 1997, and the 1995

Sentencing Guidelines apply to offenses committed from May 25, 1997, through September 30, 1998.”

15A FLA. JUR. 2D Criminal Law-Procedure § 2491 (2022).

but always with the discretion to impose a sentence “upward or downward by up to, and including,

25 percent from the recommended guidelines prison sentence”—a spread that created a kind of

“guidelines range” centered around the defendant’s “presumptive sentence.” FLA. STAT. §

921.0016(1)(b) (1996).

There were two major exceptions to this sentencing regime, both of which are relevant here.

First, the trial court could impose an upward or downward departure (i.e., “a sentence that deviates

from the recommended prisoner sentence by more than 25%”) if certain aggravating or mitigating

circumstances justified that departure. See FLA. R. CRIM. P. 3.703(d)(30); see also FLA. STAT. §

921.0016(3)–(4) (1996) (enumerating the aggravating and mitigating circumstances “under which a

departure from the sentencing guidelines is reasonably justified”). But Florida law required trial judges

both to “orally articulat[e]” the reasons for their departures and, within seven days of any departure, to

file “a written statement, signed by the sentencing judge, delineating the reasons for departure.” FLA.

R. CRIM. P. 3.703(d)(30)(A).

Second, the trial judge could disregard the sentencing guidelines entirely if the offense of

conviction triggered a “mandatory penalty.” Id. FLA. R. CRIM. P. 3.703(d)(29) (“If the presumptive

sentence is less than the mandatory penalty, the mandatory sentence takes precedence.”). One such

mandatory penalty is relevant here: the HVFO enhancement. Cf. Clines v. State, 912 So. 2d 550, 553

(Fla. 2005) (“To be sentenced as a [HVFO], a defendant must have been convicted of one prior

enumerated felony and must have committed his current felony [within five years of his last

conviction.]”). At the time Burgess was sentenced, a defendant who met the requirements for the

HVFO enhancement—and who had committed “a life felony or a felony of the first degree”—was

subject to a mandatory minimum penalty of fifteen years with a maximum of life. FLA. STAT. §

775.084(4)(b)(1) (1996).

With that primer out of the way, we can finally determine whether the state court reasonably

applied Strickland when it found that Burgess’s resentencing lawyer didn’t err by failing to object to the

upward departure. The state postconviction court found that counsel’s performance wasn’t deficient

because Burgess’s HVFO sentence wasn’t vacated in 2000. See Order Denying Third Postconviction

Motion [ECF No. 10-2] at 276 (“His original HVFO sentences were not imposed under the guidelines.

No prohibition exists to seek aggravated or an ‘upward departure’ sentence following the reversal or

deletion of an HVFO term.”). This finding wasn’t unreasonable.

It’s undisputed that Burgess was first sentenced as an HVFO on July 16, 1999. See Sentencing

Orders [ECF No. 10-1] at 18–26. It’s also undisputed that, on August 8, 2000, the state trial court

corrected the original sentence nunc pro tunc to the original sentencing date of July 16, 1999. See

Amended Sentencing Orders [ECF No. 10-1] at 42–47. Under state law, a nunc pro tunc sentencing

order is meant “to correct the record of an order actually made” and “refers, not to a new or de novo

decision, but to the judicial act previously taken, concerning which the record was absent or defective.”

Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1266 (11th Cir. 2020). The 2000 amended sentencing

order corrected two errors: It eliminated the mandatory minimum penalty the original court had

imposed as to Counts 1 and 2, and it lowered Burgess’s sentence on Count 3 to thirty years. See

Amended Sentencing Orders [ECF No. 10-1] at 42–47; see also Response to 3.800(b) Motion [ECF

No. 10-1] at 40 (agreeing that “any minimum mandatory sentences [should be] stricken, and the

sentence on [Count 3] (aggravated battery with a deadly weapon) [should be] reduced to 30 years

incarceration”). Under Florida law, however, those aspects of the original 1999 sentence that weren’t

corrected by the 2000 sentencing remained in full force and effect. See Boggs v. Wainwright, 223 So. 2d

316, 317 (Fla. 1969) (“That a court of record may, even after the term has expired, correct clerical

mistakes in its own judgments and records, nunc pro tunc, and that such corrections generally relate

back and take effect as of the date of the judgment, decree, order, writ, or other record so corrected,

is well settled.”).

Burgess is right that the 2000 sentencing documents make no mention of the HVFO

enhancement. See Amended Sentencing Orders [ECF No. 10-1] at 42–47. But that’s precisely why he

loses. The silence Burgess has identified in the 2000 sentencing documents highlights what we already

know—which is that the 2000 amendment had nothing to do with the HVFO enhancement. And so,

the part of the 1999 judgment at issue here—the HVFO designation—was completely unaffected by

the 2000 amendment. See Wells v. State, 796 So. 2d 1276, 1278 (Fla. 4th DCA 2001) (“[T]he [nunc pro

tunc] correction . . . would not have revised the legal rights and obligations plainly and properly settled

with finality in the earlier judgment. Appellant would still be adjudicated and incarcerated for the

crimes for which he was convicted.”). In other words, Burgess’s argument that he was already serving

a sentence on an upward departure (rather than an HVFO designation) from 2000 to 2015—and that

he thus couldn’t receive a second upward departure—is conclusively refuted by state law. And our

finding in this regard is buttressed by at least three state-court decisions in this case, all of which came

to the same conclusion. See Burgess, 182 So. 3d at 842 (“On remand, the trial court is free to impose

departure sentences if valid grounds for departure are proven.”); Order Denying Third Postconviction

Motion [ECF No. 10-2] at 276 (“[Burgess’s] original HVFO sentences were not imposed under the

guidelines.”); Burgess, 292 So. 3d at 748 (affirming the Order Denying Third Postconviction Motion).

Nor should any of this come as a surprise to Burgess who, after all, must’ve known, after 2000, that

he was still serving an HVFO sentence because, in 2007, he successfully argued that his then-ongoing

HVFO sentence was illegal. See 3.800(a) Motion [ECF No. 10-1] at 273 (arguing, in 2007, that

“Defendant’s sentence under § 775.084(4) (1995) [the HVFO statute]” represented an

“unconstitutional habitualization”).

Since Burgess hadn’t yet been sentenced to an upward departure before 2015,7 the resentencing

court was well within its discretion to depart upward from the guideline range. See, e.g., Key v. State, 254

So. 3d 1000, 1002 (Fla. 4th DCA 2018) (“[O]nce a defendant’s habitual offender designations are

stricken, the trial court has discretion in resentencing pursuant to the sentencing guidelines, including

discretion to impose an upward departure sentence if it provides written reasons.” (emphasis added)). And,

since the state courts had already rejected Burgess’s claim under state law, the postconviction court’s

conclusion that counsel couldn’t have been ineffective for failing to raise a futile state-law argument

was a reasonable application of Strickland. See, e.g., Freeman v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir.

2008) (“A lawyer cannot be deficient for failing to raise a meritless claim.”).

We thus DENY Ground One.

III. Ground Two

In Ground Two, Burgess avers that his resentencing counsel was ineffective for failing to

object after “the sentencing judge imposed upward guidelines departure sentences and did not orally

articulate the reason for departure at the time [the] sentences were imposed[.]” Petition at 24. But the

state-court record unambiguously refutes this claim. See Response at 28 (“The appellate court clearly

believed that the trial court orally pronounced the reason for departure.”); Order Denying Third

Postconviction Motion [ECF No. 10-2] at 276–77 (“The record reveals that the sole basis for the

departure sentence was detailed in a written motion, fully litigated, orally held ‘sufficient’ for departure

by the Court, and memorialized in a written sentencing Order.” (cleaned up)).

In fact, after the Assistant State Attorney (Mr. Raft) argued, at the resentencing, that Burgess’s

long and serious criminal history justified an upward departure, see Resentencing Hr’g Tr. [ECF No.

7 Recall that, although Burgess presented this argument in 2007, he didn’t get relief until 2015. See supra

note 3.

11-1] at 67,8 the sentencing judge said: “I have to agree with [Assistant State Attorney] Raft,” id. at 73.

Then, citing Raft’s recitation, the sentencing court found that “there are sufficient aggravating

circumstances which give this court the option of aggravating the sentence over and above the

sentencing guidelines.” Id. at 80. The record is therefore clear that the resentencing court orally

adopted the State’s position—which was that, under FLA. STAT. § 921.0016(3)(r), an upward (or

aggravating) sentence was warranted. And that’s probably enough for us to reject Ground Two.

But there’s more. Remember that Burgess appealed his new sentence to the Fourth DCA, and

that, in doing so, he made this very same argument. See Resentencing Initial Brief [ECF No. 10-2] at

145 (“The trial court’s failure to give [an] oral pronouncement for its reason to impose upward

guidelines departure sentences is reversible error.”). The Fourth DCA rejected this argument, saying

that it was “without merit.” Burgess, 252 So. 3d at 767. The Fourth DCA, in other words, has already

determined (as a matter of state law) that the resentencing court properly articulated its reasons for the

upward departure. And we cannot second-guess the Fourth DCA’s position on whether a sentencing

pronouncement did (or did not) comply with FLA. R. CRIM. P. 3.703(d)(30)(A). See Agan v. Vaughn,

119 F.3d 1538, 1549 (11th Cir. 1997) (“[S]tate courts are the final arbiters of state law, and federal

habeas courts should not second-guess them on such matters.”). Nor would it make any sense for us

to suggest that resentencing counsel was ineffective for failing to object to the (supposed) lack of an

oral pronouncement when the Fourth DCA has already found that the resentencing court issued a

8 The prosecutor actually used the term “aggravation,” which is state-court shorthand for an upward

departure—in large part because the Florida statute that authorizes upward departures requires the

sentencing judge to justify the sentence by reference to certain “aggravating circumstances.” See

Resentencing Hr’g Tr. [ECF No. 11-1] at 67 (“The state asks for aggravation in this case. As I indicated

in my [sentencing memorandum], the basis for the aggravation would be sufficient if the defendant

had one prior conviction for a [level-seven offense]. In this case I have two prior offenses that are

level nine and two prior offenses that are level ten.”); FLA. STAT. § 921.0016(3)(r) (“Aggravating

circumstances under which a departure from the sentencing guidelines is reasonably justified include

. . . [when] the primary offense is scored at offense level 7 or higher and the defendant has been

convicted of one more offense that scored, or would have scored, at an offense level 8 or higher.”).

proper oral pronouncement. See Freeman, 536 F.3d at 1233 (“A lawyer cannot be deficient for failing

to raise a meritless claim.”). We therefore DENY Ground Two.

EVIDENTIARY HEARING

We won’t hold an evidentiary hearing in this case. “[W]hen the state-court record ‘precludes

habeas relief’ under the limitations of § 2254(d), a district court is ‘not required to hold an evidentiary

hearing.’” Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (quoting Schriro v. Landrigan, 550 U.S. 465, 474

(2007)). Further factual development is not required to support our decision. See Williams, 529 U.S. at

444 (“The Court of Appeals rejected this claim on the merits under § 2254(d)(1), so it is unnecessary

to reach the question whether § 2254(e)(2) would permit [or restrict] a hearing on the claim.”).

CERTIFICATE OF APPEALABILITY

A Certificate of Appealability (“COA”) is appropriate only when the movant makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To deserve a COA,

therefore, the movant must show that “reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a

district court has disposed of claims . . . on procedural grounds, a COA will be granted only if the

court concludes that ‘jurists of reason’ would find it debatable both ‘whether the petition states a valid

claim of the denial of a constitutional right’ and ‘whether the district court was correct in its procedural

ruling.’” Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001) (quoting Franklin v. Hightower, 215 F.3d

1196, 1199 (11th Cir. 2000)). Reasonable jurists would not second-guess our decision to deny Grounds

One and Two on the merits. We thus DENY any request for a COA.

***

Having carefully reviewed the record and the governing law, we hereby ORDER AND

ADJUDGE that the Petition [ECF No. 1] is DENIED, that a COA is DENIED, that any request

for an evidentiary hearing is DENIED, that all deadlines ace TERMINATED, and that any pending

motions are DENIED as moot. The Clerk shall CLOSE this case.

DONE AND ORDERED in the Southern District of Florida on November 15, 2022.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

CC: AIL. Burgess, pro se

counsel of record

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