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Bush v. Secretary, Florida Department of Corrections

United States Court of Appeals, Eleventh Circuit

April 25, 2018

MICHAEL BUSH, Plaintiff-Appellant,

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:12-cv-21916-JAL

          Before TJOFLAT and MARCUS, Circuit Judges, and STEELE, [*] District Judge.

          TJOFLAT, Circuit Judge:

         Michael Bush is a Florida prison inmate serving sentences for burglary of an occupied building, grand theft, and resisting an officer without violence. After exhausting his state-court remedies on direct appeal and collateral attack, he petitioned the United States District Court for the Southern District of Florida for a writ of habeas corpus vacating his convictions pursuant to 28 U.S.C. § 2254. The Court denied the writ and a judge of this Court issued a Certificate of Appealability ("COA").[1] The COA posed the following question: whether Bush was denied "due process or access to the courts" because he was unable-due to the unavailability of a transcript of his criminal trial-to prove in collaterally attacking his convictions that his trial attorneys rendered ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). The answer to this question depends upon whether the Florida Third District Court of Appeal's ("DCA") decision affirming the collateral-attack court's denial of relief "was contrary to, or involved an unreasonable application of, clearly established" United States Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). We conclude that the answer is no and therefore affirm the District Court's denial of the writ.

          I. A.

         The crimes in this case occurred in the night of October 7-8, 2003, in Miami Shores, a village in Miami-Dade County, Florida. Around 2:30am on October 8, Lori Willenberg briefly observed a man outside of her house. Minutes later, she saw the man running swiftly near the back of her house. She called the police and described the man as a black male wearing a red shirt and black pants. An officer responded and, upon his arrival, spotted a man nearby matching that description. He was riding a bicycle. After the man noticed the officer, he jumped off of the bicycle, discarded a bag and a leaf blower, and then ran. The officer followed him but ceased the pursuit soon after the man jumped over a chain-link fence. A k-9 unit was dispatched and at around 3:30am Michael Bush was found on the roof of a house in the area and taken into custody.

         On October 29, 2003, the State Attorney for Miami-Dade County charged Bush by information with burglary of an occupied dwelling, grand theft, and resisting an officer without violence. He was declared indigent, and the Circuit Court of Miami-Dade County appointed public defenders Lindsey Glazer and Gregg Toung to represent him. Bush pleaded not guilty to the information and stood trial before a jury on February 7, 8, and 9, 2006. The jury convicted Bush on all charges, and the court sentenced him to prison for thirty-five years. He appealed his convictions to the DCA, represented by separate appointed counsel, public defenders Bennett Brummer and Howard Blumberg. Portions of Bush's trial had not been transcribed because the court reporter had lost some of her notes, [2] so counsel sought leave to reconstruct the trial record and prepare a "statement of the evidence or proceedings" ("Statement") pursuant to Florida Rule of Appellate Procedure 9.200(b)(4).[3] With the assistance of Bush's trial attorneys and the prosecutor, counsel prepared the Statement, which depicted what had transpired during the portions of the trial that had not been transcribed. The Statement was included in the record on appeal.

         Although the Statement failed to recreate portions of the trial, the appeal went forward presenting a single issue: whether the trial court erred in sustaining the State's objection to unauthenticated x-rays of Bush's damaged ankle, which would have helped Bush substantiate his claim that he was incapable of evading police in the way the prosecution alleged.[4] The DCA affirmed summarily. Bush v. State, 992 So.2d 412 (Fla. 3d Dist. Ct. App. 2008) (mem.).


         On September 29, 2009, Bush returned to the trial court and filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. His motion presented six claims of ineffective assistance of trial counsel.[5]Annexed to his motion was the Statement that had been presented to the DCA in the direct appeal of his convictions.

         The trial court appointed Alan Byrd, a private lawyer, to represent Bush and on August 12, 2010, it held an evidentiary hearing on Bush's motion. Bush's trial attorneys, the prosecutor, and Bush testified.[6] The attorneys' recollection of what transpired during the portions of the trial that had not been transcribed differed from that of Bush; they sharply disputed Bush's version of what had occurred. Byrd thus argued that Bush's motion should be granted because, had a complete trial transcript been available, he could have thoroughly impeached the attorneys' testimony and Bush's own would have been bolstered. The trial court was not persuaded and denied Bush's Rule 3.850 motion on September 10, 2010.

         Bush appealed the decision to the DCA. In his brief, he raised four issues. The first three concerned three of the original six ineffective-assistance claims litigated in the Rule 3.850 proceeding.[7] Bush's fourth issue was whether the court erred, under the United States and Florida Constitutions, "in denying [his] Rule 3.850 motion for [postconviction] relief on all claims when 80% of the original trial record was lost, destroyed, or [ir]retrievable."[8] Bush claimed that given this circumstance, the court should have vacated his convictions and ordered a new trial.

         Bush argued that a new trial was required because the missing portions of the trial transcript precluded him from proving his allegations of ineffective assistance and thus prevented the trial court from fairly considering and then ruling on his motion. He supported his argument by citing a series of Florida appellate decisions, all reviewing a defendant's conviction on direct appeal[9]; none reviewed the denial of postconviction relief. In the most recent decision Bush cited, Jones v. State, the Florida Supreme Court expressed its precedent in cases involving the absence of a trial transcript in the direct appeal of a defendant's conviction[10]: "It is . . . clear that under our precedent, this Court requires that the defendant demonstrate that there is a basis for a claim that the missing transcript would reflect matters which prejudice the defendant." 923 So.2d 486, 489 (Fla. 2006).

         The State, in its answer brief, expressed its argument for the affirmance of the trial court's decision with this perfunctory statement: "[T]he court's decision denying the Rule 3.850 motion was based on a careful review of the witnesses, and circumstances of the case; that the Appellant's issues have already been addressed or are meritless, and alternatively, there was no error." Referring to Jones v. State and two of the other cases Bush had cited, [11] the State's answer brief acknowledged that a new trial might have been required had an inadequate trial transcript precluded the DCA from conducting a meaningful review of his convictions. It went on to assert, however, that "to the extent that the adequacy of the record was or could have been raised on direct appeal, [Bush] was not entitled to relief." In making its argument, the State did not distinguish between the provision of a trial transcript on direct appeal and in a postconviction proceeding. The State thus raised, but did not answer, the question of whether the Jones remedy applied in the postconviction context as well as on direct appeal and, if so, whether the transcript of Bush's trial was inadequate for Rule 3.850 purposes-i.e., to determine whether defense counsels' trial performance was constitutionally ineffective under Strickland v. Washington. It was precisely this unanswered question that Bush's fourth point posed: whether the Florida appellate decisions Bush cited required the denial of Rule 3.850 relief to be reversed and a new trial granted.

         The DCA summarily affirmed the trial court's decision. Bush v. State, No. 3D10-3063, 2012 WL 560916 (Fla. 3d Dist. Ct. App. Feb. 22, 2012) (unpublished table decision).


         Having exhausted his state-court remedies, Bush brought the habeas petition now before us. In his petition, Bush challenged the DCA's disposition of the three ineffective-assistance claims presented on appeal and of his claim that the unavailability of eighty percent of the trial transcript required the vacation of his convictions and a new trial. Bush reframed that claim, which is the only claim relevant here, to assert two violations of the United States Constitution: His convictions were invalid because "his Fifth and Fourteenth Amendment rights to due process and access to the courts were violated by being required to appeal and seek postconviction remedies with an incomplete record."[12] As stated, the claim amounted to a substantive restatement of the fourth claim Bush presented to the DCA in appealing the denial of Rule 3.850 relief.

         The District Court ordered the state to respond to the petition. Concerning Bush's fourth claim, the State's response first asserted that the claim had been waived. Bush, the State contended, should have raised on direct appeal his allegations about the effect of the incomplete transcript on meaningful appellate review. The State then argued that, should the merits be reached, Bush could not show that he was actually prejudiced by the missing portions of the transcript. Implicit in this argument was the State's recognition that a convicted defendant has a constitutional right to the provision of a trial transcript for use in postconviction proceedings. It recognized the right as created by the substantive component of the Due Process Clause. It also recognized that denial of a transcript might operate to deny the defendant's right of access to the courts. In short, the State's argument was not that there is no constitutional right to a trial transcript in postconviction proceedings. Rather, its argument was that notwithstanding the missing portions of the transcript, Bush received full consideration of his ineffective-assistance claims in the Rule 3.850 proceeding.

         The District Court referred Bush's petition and the State's response to a Magistrate Judge for a report and recommendation. The Magistrate Judge denied Bush's request for an evidentiary hearing and, after consulting the records of the state courts' criminal and Rule 3.850 proceedings, recommended that the District Court deny his petition. In his recommendation, the Magistrate Judge "decline[d] to engage in an analysis of procedural bar" resulting from Bush's failure to present his insufficient-record argument as two, discrete federal constitutional claims in his Rule 3.850 motion and instead reached the merits. Citing Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410 (1971), a case about an indigent defendant being denied a free transcript in appealing his conviction, [13] the Magistrate Judge stated that the United States Supreme Court "has recognized that substantive due process, " as distinguished from procedural due process, "includes access to the courts and also a criminal defendant's right to obtain a trial transcript for purposes of appeal." He held, however, that Bush failed to "allege[] deficiencies in the trial transcript substantial enough to call into question the validity of the appellate process in the state courts."[14]

         The District Court agreed. It too assumed that the State's failure to provide a defendant with a complete transcript of his trial for use in a postconviction proceeding could constitute a denial of substantive due process, [15] but only if the defendant established prejudice. Bush, the District Court concluded, failed to present any evidence ...

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