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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

EDDIE DEAN FORD,

Petitioner,

vs.

CASE NO. 4:10cv30-RH/WCS

EDWIN G. BUSS, Secretary, 

Florida Department of Corrections,1

Respondent.

 /

REPORT AND RECOMMENDATION

This is an amended petition for writ of habeas corpus filed by Eddie Dean Ford

pursuant to 28 U.S.C. § 2254. Doc. 8. Petitioner challenges the revocation of his

probation and sentence of 15 years in prison in the Circuit Court of the Second Judicial

Circuit, in and for Leon County, Florida, case number 2004-1215.2

 Petitioner claims

1

 Edwin G. Buss was appointed as Secretary of the Florida Department of

Corrections on February 14, 2011, and is substituted for Walter A. McNeil pursuant to

FED. R. CIV. P. 25(d).

2

 There were other convictions and sentences connected with this case, but

those sentences have been served and Petitioner does not challenge any aspect of

those cases.

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that he had ineffective assistance of counsel with respect to the revocation of probation

proceeding. Doc. 8, pp. 4-11. Respondent filed a motion to dismiss. Doc. 19. The

exhibits are in paper form and were filed with doc. 19. Docket entry 20. Petitioner

responded. Doc. 23 and 24 (memorandum).

Petitioner entered into a plea agreement in case number 2004-1215 and in

several unrelated cases. The charge in case number 2004-1215 was burglary of a

dwelling with a person assaulted. Ex. C2. Pursuant to a combined plea agreement in

the several cases, Petitioner was sentenced in case number 2004-1215 to a term of 5

years probation with a 15 year suspended prison sentence. Ex. C3 and C4. 

On July 31, 2005, Petitioner was charged with violation of probation in that case. 

Ex. C5. He was charged with failing to report as directed to the probation officer on

January 13, 2005, with changing his residence without prior permission of the probation

officer, and with failing to successfully complete a batterer's intervention program. Id. 

The same charge of violation of probation was made in the other cases as well. 

Counsel was appointed for Petitioner, and the trial court held an evidentiary hearing on

April 22, 2005. Ex. E. It is obvious from this that Petitioner denied that he violated the

conditions of probation. The court found that Petitioner committed the first and third

alleged violations. Id., pp. 49-50. The court revoked probation in case number 2004-

1215 and imposed the 15 year prison sentence that had been previously suspended. 

Id., p. 53.

Respondent argues in the motion to dismiss that "there is no right of counsel

under the Sixth Amendment in probation revocation proceedings . . . ." Doc. 19, p. 9. 

Respondent acknowledges that Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36

Case No. 4:10cv30-RH/WCS

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L.Ed.2d 656 (1973) held that there is a right to counsel in some revocation of probation

cases, but contends that this a "due process" right rather than a Sixth Amendment right. 

Doc. 19, p. 11. Respondent argues that the only federal claim Petitioner made in state

court was a Sixth Amendment claim to effective assistance of counsel, and did not

mention a due process right to effective counsel. Id., p. 14. Respondent concludes that

Petitioner did not exhaust his state court remedies as to a due process claim, and that

the claim is now procedurally defaulted. Id., pp. 14-19.

Federal habeas relief is available to state prisoners only after they have

exhausted their claims in state court. 28 U.S.C. §§ 2254(b)(1), (c)." O'Sullivan v.

Boerckel, 526 U.S. 838, 839, 119 S.Ct. 1728, 1730, 144 L.Ed.2d 1 (1999). To properly

exhaust remedies as required by § 2254(b), "the federal claim must be fairly presented

to the state courts." Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d

438 (1971), Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865

(1995) (citing Picard). However, "[a]n application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). While it is not

necessary that the petitioner cite "book and verse" of the Constitution, the state court

must be alerted to the fact that a federal constitutional claim is raised. Duncan, 513

U.S. at 365-366, 115 S.Ct. at 888 (citations omitted)

I do not read this motion as arguing that Petitioner did not have a due process

right to counsel at his probation revocation hearing. If that argument had been made, it

was due to be rejected. In Gagnon, as in the case at bar, the defendant had been

sentenced to a suspended 15 year prison term and placed on probation. 411 U.S. at

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779, 93 S.Ct. at 1758. The Court said: "This case presents the related questions

whether a previously sentenced probationer is entitled to a hearing when his probation

is revoked and, if so, whether he is entitled to be represented by appointed counsel at

such a hearing. Id. The Court acknowledged its prior decision, Mempa v. Rhay, 389

U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The Court further said that Mempa was

a case where

the Court held that a probationer is entitled to be represented by

appointed counsel at a combined revocation and sentencing hearing. 

Reasoning that counsel is required "at every stage of a criminal

proceeding where substantial rights of a criminal accused may be

affected," Id., at 134, 88 S.Ct., at 257, and that sentencing is one such

stage, the Court concluded that counsel must be provided an indigent at

sentencing even when it is accomplished as part of a subsequent

probation revocation proceeding. But this line of reasoning does not

require a hearing or counsel at the time of probation revocation in a case

such as the present one, where the probationer was sentenced at the time

of trial.

Id., at 781, 93 S.Ct. at 1759 (emphasis added). The Court then said: "[W]e deal here,

not with the right of an accused to counsel in a criminal prosecution, but with the more

limited due process right of one who is a probationer or parolee only because he has

been convicted of a crime." Id., at 789, 93 S.Ct. at 1763. The Court said that the due

process right to counsel would depend upon "fundamental fairness," and reasoned: 

Presumptively, it may be said that counsel should be provided in cases

where, after being informed of his right to request counsel, the probationer

or parolee makes such a request, based on a timely and colorable claim (i)

that he has not committed the alleged violation of the conditions upon

which he is at liberty; or (ii) that, even if the violation is a matter of public

record or is uncontested, there are substantial reasons which justified or

mitigated the violation and make revocation inappropriate, and that the

reasons are complex or otherwise difficult to develop or present. . . .

Id., at 790, 93 S.Ct. at 1764 (emphasis added).

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Petitioner here did not admit that he violated the conditions of probation, and the

trial court held a lengthy evidentiary hearing. Following the guidance of Gagnon,

3

Petitioner presumptively had a federal due process right to counsel in that proceeding,

and Respondent has not shown otherwise.4

In those instances in criminal cases where the source of the right to counsel is

the Due Process Clause rather than the Sixth Amendment, a defendant has a right to

effective counsel. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d

821 (1985) ("A first appeal as of right therefore is not adjudicated in accord with due

process of law if the appellant does not have the effective assistance of an attorney."). 

Although the source of the right may be the Due Process Clause, courts routinely apply

the Sixth Amendment standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

3

 While acknowledging that Gagnon held that there is not a federal constitutional

right to counsel in all probation revocation hearings, the Florida Supreme Court adopted

a state law rule that absent an informed waiver, counsel shall always be provided in

probation revocation proceedings, and must be provided before being required to admit

or deny the revocation charges. Hicks v. State, 452 So. 2d 606 (Fla. 4th DCA 1984),

approved, 478 So. 2d 22, 23-24 (Fla.1985). Federal Rule of Criminal Procedure

32.1(a)(3)(B) similarly provides a right to counsel in a proceeding to revoke or modify

probation or supervised release. In other words, both jurisdictions by-pass the case by

case approach of Gagnon.

4

 There is no right to counsel in collateral post-conviction proceedings challenging

the conviction and sentence, whether arising from the Sixth Amendment or due

process. Jones v. Crosby, 137 F.3d 1279, 1280 (11th Cir.), cert. denied, 523 U.S. 1041

(1998), citing, Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989). 

"The ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254." 28 U.S.C. § 2254(i). Proceedings to revoke probation, however, are not

collateral proceedings. See, Tasker v. State, 48 So.3d 798, 805 (2010) (sentencing

after revocation of probation is a deferred sentencing proceeding) (citation omitted);

Ferreira v. Secretary, Department of Corrections, 494 F.3d 1286, 1292-1293 (11th Cir.

2007) (the judgment is based on the conviction and the sentence the petitioner is

serving for purposes of § 2254) (citations omitted).

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2052, 80 L.Ed.2d 674 (1984) to claims of ineffective assistance of state appellate

counsel. E.g., Cave v. Secretary for Dept. of Corrections, 638 F.3d 739, 748 (11th Cir.

2011) (appellate counsel); Digsby v. McNeil, 627 F.3d 823, 830-831 (11th Cir. 2010),

cert. denied, --- S.Ct. ---- (U.S. May 31, 2011) (No. 10-9720) (appellate counsel). To

like effect, other courts have applied Strickland to a claim of ineffective assistance of

counsel at a probation revocation proceeding. Marshall v. Cabana, 835 F.2d 1101, 1103

(5th Cir. 1988); United States v. Allen, 157 F.3d 661, 666-667 (9th Cir. 1998). In other

words, the standard to adjudicate a due process ineffectiveness claim is identical to the

standard to adjudicate a Sixth Amendment claim of ineffectiveness.

In his Rule 3.850 motion, Petitioner presented a claim of ineffective assistance of

counsel in his probation revocation proceedings and cited Strickland. Ex. K, p. 9. The

trial court cited and relied upon Strickland when it denied the Rule 3.850 motion. Ex. O,

p. 2 (R. 39). Accordingly, Petitioner exhausted his state court remedies as to his due

process claim that his counsel at his revocation hearing was ineffective. The motion to

dismiss should be denied.

Conclusion

Accordingly, it is RECOMMENDED that Respondent's motion to dismiss, doc. 19,

be DENIED and that Respondent be ORDERED to file a response on the merits within

60 days of the order adopting this recommendation.

IN CHAMBERS at Tallahassee, Florida, on June 16, 2011.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

Case No. 4:10cv30-RH/WCS

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NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

Case No. 4:10cv30-RH/WCS

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