U.S. Court of Appeals for the Eleventh Circuit, 2018

Bush v. Sec'y, Fla. Dep't of Corr.

U.S. Court of Appeals for the Eleventh Circuit · Decided April 25, 2018

888 F.3d 1188 (Federal Reporter, Third Series)

Counsel

Daniel V. Dorris, Kellogg Hansen Todd Figel & Frederick, PLLC, WASHINGTON, DC, Michael Bush, RMC Main-Inmate Legal Mail, LAKE BUTLER, FL, for Petitioner-Appellant., Jeffrey Robert Geldens, Pam Bondi, Richard L. Polin, Attorney General's Office, MIAMI, FL, Nicholas Adam Merlin, Florida Agency for Health Care Administration, TALLAHASSEE, FL, for Respondent-Appellee., 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., 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 *1192lost, 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 appeal9 ; 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 conviction10 : "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 *1193proceeding. 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 state creates a trial transcript for purposes of direct appeal out of necessity. That is, the state provides direct appellate review of convictions, so it also provides a court reporter and transcript in order to allow for review to be meaningful. A trial transcript, in some instances, might be critical to reviewing for alleged trial-court errors; affirming a conviction without *1196one might be arbitrary. Thus if a defendant's conviction cannot be meaningfully reviewed on direct appeal, due to a deficient transcript or otherwise, state law requires the conviction to be vacated. See, e.g. , Vilsaint v. State , 890 So.2d 1293 (Fla. 3d Dist. Ct. App. 2005) (mem.). And indeed the United States Constitution does too, as such would violate one's right to procedural due process. See Entsminger v. Iowa , 386 U.S. 748, 750, 87 S.Ct. 1402, 1403, 18 L.Ed.2d 501 (1967) (holding that a defendant was denied "adequate and effective review" of his conviction because significant parts of the trial record were missing). In Bush's direct appeal of his convictions, he did not have a complete trial transcript, but that did not preclude meaningful review. Bush concedes this.17, A trial transcript plays a different role in Rule 3.850 proceedings. Once a Rule 3.850 motion is filed, the clerk must "forward the motion and file to the court." Fla. R. Crim. P. 3.850(f). If the motion states a claim for relief "but the files and records in the case conclusively show that the defendant is not entitled to relief," the claim "shall be summarily denied on the merits without a hearing." Id. at 3.850(f)(4), (5). If the files and records-including among their contents the trial transcript-do not conclusively show that the defendant is not entitled to relief, as here, then the court must order the state attorney to file an answer to the defendant's motion. Id. at 3.850(f)(6). After Bush filed his motion and the State filed its response, the Rule 3.850 court decided an evidentiary hearing was required. See id. at 3.850(f)(8). It was only at this point that Bush needed the trial transcript. The full transcript was unavailable but the hearing proceeded nonetheless., In this context, the transcript was merely to serve as a piece of evidence in Bush's Rule 3.850 proceeding. Bush's constitutional claim is that, without a transcript in his Rule 3.850 hearing, he could neither impeach the other witnesses' testimony nor show that his memory of the events at trial was, in fact, better than that of the other witnesses. Bush contends that this hindered his ability to argue his ineffective-assistance claims. The transcript, then, was to be used to increase or decrease the value of witness testimony, like any other piece of evidence. This evidentiary role is different in kind than the role a trial transcript plays on direct appeal, where it is potentially indispensable for identifying trial-court errors and conducting meaningful appellate review., As discussed, a trial transcript functions to ensure procedural due process on direct appeal. There may be instances in which a trial transcript is crucial to meaningful appellate review. But there may also be instances in which meaningful review can be conducted without a trial transcript. Adequate process can remedy a missing or deficient trial transcript. Florida Rule of Appellate Procedure 9.200(b)(4), for example, provides litigants a way to receive a fair hearing without a trial transcript., Honorable John E. Steele, United States District Judge for the Middle District of Florida, sitting by designation., The court reporter lost her notes for a portion of the trial proceedings that took place on February 8 and for all of the proceedings on February 9, 2006.

Opinion of the Court

⁴ The portion of the trial transcript included in the record on appeal was sufficient to enable the DCA to provide meaningful review of this issue.

⁵ His six claims of ineffective assistance were as follows:

(1) Trial counsel failed to contemporaneously object and to renew all objections pursuant to the trial court's denial of the defense's peremptory challenge of a juror.

(2) Trial counsel failed to properly authenticate x-rays in support of the testimony of Bush's expert witness.

(3) Trial counsel failed to allow Bush to testify.

(4) Trial counsel failed to object or move for a mistrial when the prosecutor made statements ridiculing the defense in the presence of the jury.

(5) Trial counsel failed to submit into evidence certain certified medical records.

(6) Trial counsel failed to impeach or attempt to impeach the inconsistent testimony and credibility of one of the state's witnesses.

⁶ The State began the hearing by calling Lindsey Glazer, one of Bush's trial attorneys, and Benjamin Simon, the prosecutor. Byrd followed with the testimony of Gregg Toung, Bush's other trial attorney, and Bush.

⁷ The three claims raised on appeal were claims (1), (2), and (6) in Bush's Rule 3.850 motion. See supra note 5.

⁸ Bush did not specify how or why the missing transcript resulted in a violation of his United States constitutional rights. The sole federal authority his brief cited on this point was Hardy v. United States , 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), which is inapposite. See infra note 9.

⁹ Jones v. State , 923 So.2d 486 (Fla. 2006) ; Delap v. State , 350 So.2d 462 (Fla. 1977) (per curiam); Vilsaint v. State , 890 So.2d 1293 (Fla. 3d Dist. Ct. App. 2005) (mem.); L.I.B. v. State , 811 So.2d 748 (Fla. 2d Dist. Ct. App. 2002) ; Blasco v. State , 680 So.2d 1052 (Fla. 3d Dist. Ct. App. 1996). In addition to these decisions, Bush cited Justice Goldberg's statement in Hardy , 375 U.S. at 288, 84 S.Ct. at 431 (Goldberg, J., concurring), that:

the most basic and fundamental tool of [an appellate advocate's] profession is the complete trial transcript, through which his trained fingers may leaf and his trained eyes may roam in search of an error, a lead to an error, or even a basis upon which to urge a change in an established and hitherto accepted principle of law.

The Hardy Court was addressing the question of whether under the scheme created in 28 U.S.C. § 1915, which allowed "any federal court [to] authorize an 'appeal' in forma pauperis ," a court-appointed counsel, who had not represented the indigent defendant at trial, should be provided a complete transcript of the trial proceedings at government expense in order to discharge his professional duty to the defendant, as his appellate counsel, as described in Ellis v. United States , 356 U.S. 674, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060 (1958). Hardy , 375 U.S. at 278-82, 84 S.Ct. at 425-28. In answering the question in the affirmative, the Court did not "reach a consideration of constitutional requirements." Id. at 282, 84 S.Ct. at 428.

¹⁰ The Florida Supreme Court reviewed the defendant's conviction in exercising its "conflict" jurisdiction. See Fla. Const. art. V, § 3 (b)(3).

¹¹ Delap , 350 So.2d 462 ; L.I.B. , 811 So.2d 748.

¹² The District Court expressed the claim in these quoted words in its order denying Bush's petition. As stated in Bush's petition and by the Magistrate Judge in his report and recommendation to the District Court, the claim was this: "The petitioner has a constitutional right under the Fifth Amendment and Fourteenth Amendments to the guarantee of due process and fundamental right to access the courts through a complete record on appeal which is indispensable to the realization of this constitutional right."

¹³ Mayer involved an Illinois Supreme Court's denial of a transcript to an indigent who had been convicted of violating Chicago ordinances. 404 U.S. at 190-93, 92 S.Ct. at 412-14. Applying the principle it announced in Griffin v. Illinois , 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) -that the "constitutional guarantees of due process and equal protection" require the provision of trial transcripts sufficiently complete to permit proper consideration of an indigent's direct appeal of his conviction-the United States Supreme Court vacated the Illinois Supreme Court's order denying the transcript. Mayer , 404 U.S. at 199, 92 S.Ct. at 417. Nothing in Mayer or any other United States Supreme Court decision we are aware of extends this equal protection right to a case in which the State has not discriminated against the defendant on account of his indigent status.

¹⁴ We note that the quoted part of these statements did not distinguish between the direct appeal of a conviction and the appeal of an adverse postconviction decision.

¹⁵ The District Court noted that "[i]n Ground Four [of his petition, Bush] argues that his Fifth and Fourteenth Amendment rights to due process and access to the courts were violated by being required to appeal and seek post-conviction remedies with an incomplete record." In adopting the Magistrate Judge's recommendation, however, the Court did not explicitly address the question of whether the Due Process Clause incorporated a right to access the courts.

¹⁶ Regardless of abandonment, Bush's access to the courts claim is not persuasive. Access to the courts claims generally assert a right to something that the state could provide, or they involve state interference with individuals' ability to challenge their convictions. See, e.g. , Bounds v. Smith , 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977) ("[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law."); Johnson v. Avery , 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (holding that, unless alternative sources of assistance are provided, prisoners must be allowed access to inmate "writ-writers"); Ex Parte Hull , 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941) (holding that the state could not refuse to mail a prisoner's inartful pleadings to the courts). Here, portions of Bush's trial transcript were lost through no fault of the State, and the State had no power to conjure the missing portions.

¹⁷ Bush has never contended, and does not contend here, that the missing trial transcript caused him any prejudice in advocating the single claim of trial-court error he presented to the DCA in appealing his convictions.

--------

Case-law data current through December 31, 2025. Source: CourtListener bulk data.