Cojocar v. Florida Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 29, 2009
No. 09-10157 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-80207-CR-KLR
KEITH CHRISTIAN COJOCAR,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Walter A. McNeil,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
Bill McCollum,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 29, 2009)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Keith Christian Cojocar, a Florida state prisoner proceeding pro se, appeals
the district court’s denial of his 28 U.S.C. § 2254 habeas petition. Cojocar argues
that the district court violated Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992)
by failing to address his claim that the Florida Appellate Court’s dismissal of his
appeal was contrary to Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S. Ct.
1199, 122 L. Ed. 2d 581 (1993). For the reasons set forth below, we vacate the
district court’s judgment without prejudice and remand for further proceedings.
I.
Cojocar, who is serving a 15-year sentence for driving under the influence
(“DUI”) - manslaughter and DUI - serious bodily harm, filed the present pro se 28
U.S.C. § 2254 petition alleging (1) ineffective assistance of appellate counsel in
connection with the direct appeal of his convictions, (2) trial court error in
dismissing the appeal of his Fla. R. Crim.P. Rule 3.800 appeal, and (3) trial court
error in failing to award him credit for time served for the time he was imprisoned
in Costa Rica. In his § 2254 petition, Cojocar explained that a jury convicted him
of DUI-manslaughter and DUI - serious bodily harm after he fled the state court’s
jurisdiction on the final day of his jury trial. Cojocar was sentenced in absentia on
March 26, 1998, because he had fled the jurisdiction prior to the rendering of the
guilty verdict in his case. On November 2, 2005, Cojocar was apprehended in
2
Costa Rica, where he had been incarcerated from March 15, 2005 through
November 2, 2005, based on the charges of which he had been convicted in
Florida. Cojocar was extradited to the United States and, since November 2, 2005,
has been imprisoned in Florida.
Upon returning from Costa Rica, Cojocar through counsel filed a motion to
correct illegal sentence, pursuant to Fla. R.Crim.P. 3.800(a). The Florida state
court vacated Cojocar’s original sentence of 32 years and reduced the sentence to
15 years’ imprisonment. Cojocar’s filed an appeal, raising issues that were
directed to the 1998 trial and conviction. On June 13, 2006, Cojocar filed a second
Rule 3.800 motion, arguing that he should be awarded credit for the time he served
in a Costa Rican jail. The court denied this motion and Cojocar filed an appeal,
which was consolidated with the appeal of his prior Rule 3.800 motion. The
Florida appellate court dismissed both appeals for lack of jurisdiction. In his
§ 2254 petition, Cojocar argued that appellate counsel was ineffective for failing to
seek direct appellate review of his judgment of conviction and for raising issues
related to his conviction in the appeal of his Rule 3.800 motion, rather than filing a
motion for a belated appeal. Cojocar also argued that the Florida appellate court
violated the rule set forth in Ortega-Rodriguez when it dismissed his appeal, stating
The Fourth District Court of Appeal, “Per Curiam”
Affirmed both appeals. The State court position is
3
contrary to United States precedent. See Ortega-
Rodriguez v. State, 507 U.S. 234 (1993); “it is well
settled that when a defendant absconds after filing an
appeal, the appellate court has the authority to dismiss
the appeal. However, where the defendant absconds and
returns before filing an appeal, trial courts are better
suited to address the matter” and the appeal must not be
dismissed. . . . Petitioner submits that the rationale of
Ortega-Rodriguez is persuasive and should be adopted by
this Court. . . . Dismissing the appeal is not appropriate
punishment when the defendant returns to custody before
commencement of the appeal and has not thwarted or
exhibited disrespect for the appellate process.
Cojocar noted that the state argued, in its appellate brief, that his willful
absconding made a mockery of the state judicial system and prejudiced the state,
because certain witnesses and evidence may not be available eight years after the
original trial. Finally, Cojocar asserted that the state court erred in refusing to
grant him credit for the time he served in a Costa Rican jail.
The state responded that Cojocar’s claims of ineffective assistance of
counsel and failure to award credit for time served in Costa Rica were not properly
before the court, because he failed to exhaust these issues in state court.
Nevertheless, the state addressed the merits of these two issues. The state did not
directly address Cojocar’s argument that the Florida appellate court’s dismissal of
his appeal violated Ortega-Rodriguez.
The state attached to its response an appendix containing documents filed in
4
the Florida state courts in connection with Cojocar’s convictions and sentences and
his Rule 3.800 motions. In his first Rule 3.800 motion, Cojocar argued that his
sentence was illegal because (1) he was sentenced under guidelines that had been
declared to be unconstitutional and (2) he was not present for the reading of the
verdict or his sentencing. In a second Rule 3.800 motion, filed by different
counsel, Cojocar argued that his sentence was illegal, because he was sentenced
under the 1995 Florida Sentencing Guidelines, which the Florida Supreme Court
had declared unconstitutional.
The state court resentenced Cojocar to 15 years’ imprisonment, based on the
fact that Cojocar had originally been sentenced under the unconstitutional 1995
Florida Sentencing Guidelines. Cojocar appealed “the Sentencing Orders this
Court rendered in this case on January 5, 2006, which are final Orders sentencing
[Cojocar] for DUI Manslaughter (Counts I and II) and DUI Serious Bodily Injury
(Count III) and the judgment of conviction of this Court rendered in this case
related thereto” (Case No. 4D06-489). Subsequently, Cojocar filed an additional
Rule 3.800 motion, asking the court to award him credit for the time he served in a
Costa Rican jail. The state court held a hearing and ultimately denied Cojocar’s
motion. Cojocar appealed this ruling (Case No. 4D06-2841). On appeal, the state
appellate court consolidated Case Nos. 4D06-489 and 4D06-2841.
5
In his state appellate brief, Cojocar argued that (1) his convictions were
based on insufficient evidence, (2) the trial court erred in admitting certain
blood-alcohol test results, (3) the prosecutor misstated the law during closing
argument, and (4) the trial court erred in failing to give him credit for the time he
served in a Costa Rican jail. The state filed a response, as well as a motion to
dismiss for lack of jurisdiction Case No. 4D06-489. In the motion to dismiss, the
state asserted that Cojocar’s notice of appeal in Case No. 4D06-489 indicated that
he was appealing his 1998 conviction; however, the 30-day time limit in which to
file a direct appeal of the conviction had expired on March 26, 1998. The state
argued that Cojocar would not have been entitled to a belated appeal, even if he
had petitioned for one, because he willfully absconded from the court’s
jurisdiction. Cojocar responded, citing Ortega-Rodriguez for the proposition that
an appellate court has authority to dismiss an appeal if the defendant absconds after
filing an appeal, but courts should not dismiss an appeal if the defendant absconds
before the filing of the appeal. Cojocar argued that, because he absconded before
his appeal was filed, Ortega-Rodriguez prohibited the appellate court from
dismissing his appeal. The appellate court granted the state’s motion to dismiss
with respect to Case No. 4D06-489 and affirmed the trial court’s ruling with
respect to Case No. 4D06-2841.
6
In the district court, Cojocar filed a reply to the state’s response. Cojocar
argued that counsel was ineffective for filing a motion to correct illegal sentence,
rather than a belated appeal. He noted that the state “conceded” that a belated
appeal would have rewarded him for fleeing and argued that he, therefore, was
prejudiced by counsel’s failure to file such an appeal. Cojocar contended that the
state failed to show that it would have been prejudiced by the court granting a
belated appeal. He also asserted that the state appellate court erred in refusing to
hear his claims regarding his original conviction and refusing to credit him with the
time he served in a Costa Rican jail.
The magistrate issued a report and recommendation, stating that Cojocar had
raised the two issues in his § 2254 petition: (1) counsel was ineffective, “because
rather than requesting a belated direct appeal from the original judgment, his
counsel filed a notice of appeal from the sentencing order rendered on January 5,
2006, and second notice of appeal from the denial of his motion to correct
sentencing error rendered on June 30, 2006,” and (2) “[Cojocar] [wa]s being
confined pursuant to unlawful sentences, because the trial [court] failed to award
him credit for time served for the time [he was] imprisoned in Costa Rica.” The
magistrate initially noted that Cojocar’s first claim was unexhausted and “subject
to a prospective procedural bar;” however, it decided “not to deny the claims on
7
procedural grounds” and instead considered the merits of both claims. With
respect to the ineffective assistance of counsel claim, the magistrate determined
that the failure to file a direct appeal was not the fault of counsel, but instead, was
caused by Cojocar’s absconding from the state court’s jurisdiction. The magistrate
noted:
Certainly, if Cojocar had returned to the jurisdiction
within the thirty-day appeal period, he would have been
entitled to a direct appeal from his convictions. In
Florida, when a defendant absconds after filing an
appeal, the appellate court has the authority to dismiss
the appeal; however, where the defendant absconds and
returns before filing an appeal, the misconduct is a matter
for the trial court, not the appellate courts. See Griffis v.
State, 759 So. 2d 668 (Fla. 2000). See also Ortega-
Rodriguez v. United States, 507 U.S. 234, 113 S. Ct.
1199, 122 L. Ed. 2d 581 (1993) (holding that when a
defendant absconds after the appellate process has begun
the appellate court may dismiss the appeal).
The magistrate also pointed out that Cojocar would not have been entitled to the
granting of a petition for belated appeal, because Florida law requires such
petitions to be filed within two years after expiration of the time to appeal a final
order. Accordingly, finding no deficient performance of prejudice, the magistrate
recommended denying Cojocar’s ineffective assistance of counsel claim. The
magistrate found that Cojocar’s claim that the state court should have credited him
for the time he served in Costa Rica was not cognizable in a federal habeas
8
proceeding and noted that Cojocar would not be entitled to relief even if this claim
was cognizable, because “his sentences are lawful pursuant to Florida sentencing
law.” Accordingly, the magistrate recommended denying Cojocar’s § 2254
petition.
Cojocar filed the following objections to the magistrate’s report and
recommendations. First, Cojocar argued that counsel was ineffective for raising
claims relating to his conviction and sentence in his Rule 3.800 appeal and failing
to file a belated appeal. He also asserted that there was “no factual basis to
conclude [that he] willfully absconded with intent to flee from justice.” Finally,
Cojocar objected to the magistrate’s recommendation that he was not entitled to
relief based on the trial court’s failure to award him credit for the time he served in
a Costa Rican jail.
The district court adopted the magistrate’s report and recommendation in its
entirety and denied Cojocar’s § 2254 motion. Cojocar appealed the district court’s
denial of his § 2254 petition and we granted a certificate of appealability (“COA”)
on the following issue only:
Whether the district court violated Clisby v. Jones, 960
F.2d 925, 936 (11th Cir. 1992) (en banc), by failing to
address Cojocar’s claim that the Florida Appellate
Court’s dismissal of his appeal was contrary to
Ortega-Rodriguez v. United States, 507 U.S. 234, 113
S. Ct. 1199, 122 L. Ed. 2d 581 (1993)?
9
II.
When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).
“Appellate review in a § 2254 proceeding is limited to the issues specified in the
[COA].” Diaz v. Dept. Of Corrs., 362 F.3d 698, 702 (11th Cir. 2004).
In Clisby, we expressed our “deep concern over the piecemeal litigation of
federal habeas petitions,” and exercised our supervisory authority over the district
courts, instructed them to resolve all claims for relief raised in a petition for habeas
corpus, regardless of whether habeas relief is granted or denied. Clisby, 960 F.2d
at 935-36. “A claim for relief for purposes of [Clisby] is any allegation of a
constitutional violation.” Id. at 936. When a district court does not address all the
constitutional claims in a habeas petition, we “will vacate the district court’s
judgment without prejudice and remand the case for consideration of all remaining
claims.” Id. at 938.
III.
As an initial matter, we decline to consider Cojocar’s arguments, set forth in
his appellate brief, that (1) the district court and state courts failed to determine
whether he absconded willfully and whether he was advised of his right to appeal,
10
(2) dismissal of his state court appeal violated his Fourteenth Amendment equal
protection and due process rights, and (3) he was unaware that counsel failed to file
a direct appeal, because these claims are outside the scope of the COA. Diaz, 362
F.3d at 702.
In his § 2254 petition, Cojocar clearly argued that the state appellate court
violated the rule set forth in Ortega-Rodriguez by dismissing his appeal. The
district court failed to address this issue. The magistrate’s report and
recommendation, which the district court adopted, addressed only two of Cojocar’s
claims: (1) whether counsel was ineffective for filing Rule 3.800 motions, rather
than requesting a belated appeal, and (2) whether the state court erred in failing to
award Cojocar credit for the time he served in a Costa Rican jail. Although the
magistrate’s report and recommendation cited Ortega-Rodriguez, the citation was
in reference to Cojocar’s ineffective assistance of counsel claim, rather than his
claim that the state appellate court erroneously dismissed his appeal. Furthermore,
although the state argues that Cojocar’s Ortega-Rodriguez argument was raised
only in the context of his ineffective assistance of counsel claim, a review of
Cojocar’s § 2254 petition shows that the Ortega-Rodriguez claim was separate
from the ineffective assistance of counsel claim. In his § 2254 petition, Cojocar
clearly states that “[t]he State court[’s] [dismissal of the appeal] is contrary to
11
United States precedent. See Ortega-Rodriguez v. State, 507 U.S. 234 (1993).”
This statement clearly indicates that Cojocar is challenging the state court’s
dismissal in addition to counsel’s failure to petition for a belated appeal.
Accordingly, because the district court failed to address Cojocar’s claim that the
state appellate court violated Ortega-Rodriguez by dismissing his appeal, we
vacate the district court’s judgment without prejudice and remand for consideration
of this issue. See Clisby, 960 F.2d at 938.
VACATED and REMANDED.
12