Court: Court of Appeals for the Eleventh Circuit; August 2, 1988; Federal Appellate Court
Luis A. Pacheco, a Florida prisoner convicted of burglary and sexual battery, appealed the denial of his 28 U.S.C. Sec. 2254 petition challenging his sentencing under Florida's guidelines and alleging ineffective assistance of appellate counsel. The Eleventh Circuit affirmed the district court's decision, addressing three main arguments from Pacheco.
Firstly, he contended that the Florida Supreme Court improperly exercised legislative authority when establishing sentencing guidelines, which were authorized by the Florida legislature in 1983. The court found this issue to be a matter of state law rather than federal constitutional law, thus rejecting it under section 2254.
Secondly, Pacheco argued that he was sentenced under amended guidelines that violated the ex post facto clause since the offenses occurred on January 19, 1984, after the guidelines were amended effective July 1, 1984. However, the court clarified that he was sentenced under the guidelines effective October 1, 1983, prior to the offenses, which did not violate the ex post facto clause.
Lastly, Pacheco claimed ineffective assistance of appellate counsel for failing to raise certain issues during his appeal, but the court did not find merit in this claim either. The overall judgment of the district court was affirmed.
The appellant asserts ineffective assistance of appellate counsel based on three purported failures: 1) not challenging erroneous jury instructions and verdict form, 2) not addressing a violation of the ex post facto clause, and 3) not considering a violation of separation of powers under the United States Constitution. The court found the second and third claims meritless; the sentencing was not based on guidelines enacted post-offense, and separation of powers does not pertain to the relationship between the Florida legislature and the Florida Supreme Court. Regarding the jury instructions, although the indictment specified "sexual battery involving the use or threatened use of a deadly weapon," the jury instructions referred to "sexual battery with great force." The court determined this discrepancy was immaterial since the instructions clearly defined "deadly weapon" as an essential element of the crime. Consequently, appellate counsel’s failure to raise these arguments did not constitute constitutionally deficient assistance. The district court's judgment denying the appellant's section 2254 petition was affirmed. The court acknowledged a change in the Florida Supreme Court's stance on the ex post facto issue but noted uncertainty on how this affects the separation of powers claim. Additionally, the appellant's counsel did address sentencing guidelines and evidential sufficiency on appeal.
