CASE NO. 07-22339-CIV-SEITZ/McALILEY.
January 7, 2009
REPORT AND RECOMMENDATION ON THOMAS PORTER CLOYD'S PETITION UNDER 28 U.S.C. § 2254
Before the Court is Thomas Porter Cloyd's Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody. [DE 1, 2, 3]. The Honorable Patricia A. Seitz referred the Petition to the undersigned for resolution. [DE 8]. Cloyd asks the Court to vacate his state court conviction and to order the State of Florida to release him from custody. [DE 1, p. 16].
Cloyd argues he is entitled to this relief because his conviction was obtained in violation of the Supremacy Clause of the United States Constitution. [DE 1, p. 6]. This Court has considered the Petition, the State's response [DE 13, 14, 15, 16], Cloyd's reply [DE 21] and the record in this and the underlying criminal case, and for the reasons set forth below, recommends that the Petition be DENIED.
Cloyd did not seek an evidentiary hearing on the issues raised in his Petition.
On July 22, 2002, the State of Florida filed an Information charging Petitioner Cloyd and his co-defendant, Christopher Hughes, commercial airline pilots at the time of the offense, with driving while impaired, in violation of Florida Statute section 316.193(1), and operating an aircraft while under the influence of alcohol, in violation of Florida Statute section 860.13(1)(a). [DE 3, Tab 3]. The State, on September 30, 2002, amended the Information to include a charge of culpable negligence, in a violation of Florida Statute section 784.05(1). [DE 3, Tab 4].
Cloyd moved the state trial court to dismiss the charges on the grounds that federal law governs the regulation of commercial air carriers and thus preempted the State's prosecution. [DE 3, Tabs 5 and 6]. The trial court denied the motion to dismiss; Cloyd then raised the issue in a writ of prohibition filed with the Third District Court of Appeal, which that Court denied, per curiam and without opinion. [DE 3, Tabs 7 and 8].
On June 16, 2003, the State filed a Second Amended Information that added two additional counts of culpable negligence and amended Count 2 to include the charge that Cloyd violated Florida Statute section 860.13(1)(b) and (2) by operating an aircraft in a reckless manner in contravention of federal statutes or regulations that govern aeronautics. [DE 3, Tab 13].
Florida Statute section 860.13(2) provides: "In any prosecution charging careless or reckless operation of aircraft in violation of this section, the court, in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft as prescribed by federal statutes or regulations governing aeronautics."
Before he went to trial Cloyd filed a federal habeas petition in this court arguing, as he had done unsuccessfully in state court, that his prosecution by the State was preempted by federal law. [DE 3, Tabs 14 and 15]. The district court agreed with Cloyd and granted the habeas petition, quashing the state criminal proceeding. Hughes Cloyd v. Eleventh Judicial Circuit of Fla., 274 F. Supp. 2d 1334 (S.D. Fla. 2003). On appeal, the Eleventh Circuit Court of Appeals reversed, holding that "[Cloyd's] claims of federal preemption are not `facially conclusive,'" and thus, the district court should not have decided the question of preemption on the merits, but rather should have abstained from hearing Cloyd's petition under Younger v. Harris. Hughes v. Attorney General of Fla., 377 F.3d 1258, 1265 (11th Cir. 2004).
401 U.S. 37 (1971).
After the Eleventh Circuit ruling, but before trial, the State amended the Information to drop the counts brought under Florida Statute sections 316.193(1) and 784.05(1). [DE 2, p. 5; DE 3, Tab 16]. Thus, Cloyd was tried only on the charge of operating an aircraft while under the influence of alcohol or in a careless or reckless manner, in violation of Florida Statute § 860.13(1)(a)-(b) and (2).
Cloyd's trial began on May 18, 2005. [DE 2, p. 6]. The evidence at trial showed that Cloyd and Hughes were pilots for American West Airlines who were detained at the Miami International Airport on July 1, 2002, by Miami-Dade County police officers after airport personnel smelled alcohol on one or both of them, and that both pilots failed a field sobriety test. When Cloyd and Hughes were detained, they were in the locked cockpit of the commercial aircraft as it was being towed onto the runaway in preparation for take off.
Cloyd was tried with his co-defendant and co-pilot, Hughes.
Hours after he was removed from the cockpit, Cloyd provided two breath samples to the police. The first registered a breath-alcohol level of .091 and the second registered .090. [DE 23, pp. 1970-71]. The State's expert testified at trial that, using a retrograde analysis, Cloyd's breath alcohol level at the time he was in the cockpit of the airliner would have been between .121 and .15. [DE 23, pp. 2175-2177]. The State also introduced testimony, over defense objection, regarding the Florida standard for impairment (.08) and the fact that federal regulations prohibit pilots from being on duty while having an alcohol concentration of .04 or higher or, alternatively, within eight hours of drinking alcohol. [DE 23, pp. 1503 and 1806-1807]. Cloyd sought to introduce evidence that the federal criminal standard for impairment is higher (.10), but the trial court barred him from doing so, on the ground that the criminal statute was not a federal regulation, as that term is used in Florida Statute section 860.13(2). [DE 23, pp. 1820-22].
On June 8, 2005, the jury convicted Cloyd of operating an aircraft while intoxicated or in a careless or reckless manner in violation of Florida Statute § 860.13(1) and (2), [DE 23, pp. 2506-8], and on July 21, 2005, the trial court sentenced Cloyd to five years in state prison [DE 3, Tab 17]. Cloyd is currently serving that sentence. Cloyd appealed his conviction, arguing that the trial court committed numerous errors and that federal law preempts and therefore precluded the State's prosecution. The Third District Court of Appeal, on July 12, 2006, affirmed the conviction on all grounds. Cloyd v. State, 943 So. 2d 149 (Fla. 3d DCA 2006). Cloyd sought rehearing, rehearing en banc and certification to the Florida Supreme Court, all of which were denied. [DE 3, Tab 21]. The Florida Supreme Court, on June 4, 2007, declined to exercise its discretionary jurisdiction to review this case. [DE 3, Tab 24]. Cloyd then moved the trial court for mitigation of sentence, pursuant to Florida Rule of Criminal Procedure 3.800(c), which was denied on July 23, 2007. [DE 2, p. 9; DE 3, Tab 25]. Cloyd timely filed this Petition on September 7, 2007. [DE 1].
The Third District Court of Appeal, when it was first presented with Cloyd's preemption argument (in the pretrial writ of prohibition), rejected that argument without opinion. [DE 2, Tab 8]. Later, when considering the issue again on direct appeal, the court concluded that it had already decided the issue on the merits, and thus Cloyd was barred by the doctrine of res judicata from relitigating the claim. 943 So. 2d at 158. The Court of Appeal nevertheless engaged in an analysis of the preemption claim, and concluded "had the issue not been barred, we would have found . . . that the defendants' prosecution was not preempted." Id.
Cloyd claims one ground in support of his Petition: that his prosecution by the State of Florida was preempted by federal law and, thus he is now in State custody in violation of the Supremacy Clause of the United States Constitution. [DE 2, p. 1].
A. Standard For Relief Under 28 U.S.C. § 2254
Cloyd seeks relief under 28 U.S.C. § 2254(d)(1), which provides that a federal court may grant a habeas petition, and vacate a state conviction, only when the state court decision "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." [DE 2, p. 10]. For habeas purposes, this Court reviews the decision of the highest state court; here, the Third District Court of Appeal decision on direct appeal. Shere v. Dept. of Corr., 537 F.3d 1304, 1310 (11th Cir. 2008) ("under AEDPA, [federal court] review is limited to examining whether the highest state court's resolution of a petitioner's claim is contrary to, or an unreasonable application of clearly established law. . . .").
The criteria set forth in § 2254(d)(1) — "contrary to" and "unreasonable application of" — provide two independent statutory grounds for habeas relief. Gore v. Dept. of Corrections, 492 F.3d 1273, 1293 (11th Cir. 2007). The Eleventh Circuit has framed the two grounds in this manner:
a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.Fugate v. Head, 261 F.3d 1206, 1216 (11th Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).
Courts have made clear that these two avenues for relief are narrow. A state court decision is "contrary to" federal law if it applies a legal principle "substantially different from the relevant precedent of the Supreme Court." Id. (quotation omitted). When no Supreme Court precedent is on point, a state court's conclusion regarding a legal principle cannot be contrary to clearly established federal law as determined by the Supreme Court. Dombrowski v. Mingo, 543 F.3d 1270, 1274 (11th Cir. 2008).
A decision is an "unreasonable application" of federal law where, under an objective standard, the state court "unreasonably extends or unreasonably fails to extend a clearly established legal principle to a new context." Id. (quotation omitted). "Clearly established federal law," as used in § 2254(d)(1), is limited to the holdings, as opposed to dicta, of United States Supreme Court decisions available at the time the relevant state court ruled. Carey v. Musladin, 549 U.S. 70, 74 (2006).
An "unreasonable application of federal law is different from an incorrect application of federal law" and a court may not grant a petition "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000).
In its memoranda, the State confuses this standard in two different ways. First, it would have this Court impose a more restrictive application of § 2254(d)(1), that is, before Cloyd could prevail the State would require him to identify Supreme Court precedent that specifically holds that "federal law preempts state action in criminalizing the operation of an aircraft while under the influence or in a careless or reckless manner." [DE 13, p. 11]. This approach is too narrow. The Supreme Court has observed that "rules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard. . . ." Williams, 529 U.S. at 382; Dombrowski, 543 F.3d 1276. Here, the Supreme Court has established generalized standards for finding preemption, and that is what this Court looks to in its application of § 2254(d)(1).
Second, the State confuses the standard for relief under § 2254 with the "facially conclusive" standard of the Younger abstention doctrine, which the Eleventh Circuit applied when it concluded that the district court should have abstained from entering its pretrial order granting habeas relief. [DE 13, p. 12]. Without support, the State asserts that "[i]n determining that the preemption claim was not facially conclusive, [the Eleventh Circuit] necessarily determined that federal preemption law pertaining to Petitioner's claim is not clearly established." [DE 13, p. 12]. The Eleventh Circuit, however, declined to reach this ultimate conclusion: "[w]hile it is necessary to discuss the particular legal standards governing a preemption analysis, we emphasize that we need not, and do not, resolve the merits of the preemption claims." 377 F. 3d at 1266. Thus, Cloyd's preemption argument, within the standard set forth in § 2254(d)(1), has not been resolved by the Eleventh Circuit and is squarely before this Court.
Younger v. Harris, 401 U.S. 37 (1971).
Although the Eleventh Circuit did not resolve the issue presented by the Petition, in order to reach its conclusion that the District Court should have abstained, pretrial, from deciding the question of preemption, the Eleventh Circuit reviewed the preemption doctrine in some depth, and that analysis certainly provides guidance to this Court as it now reviews the preemption argument on the merits.
Applying the standard under § 2254(d)(1), this Court concludes that Cloyd has failed to establish that the decision of the Third District Court of Appeal upholding his conviction is either "contrary to" or an "unreasonable application of" the clearly established federal law. Therefore, the Petition should be denied.
B. The Third District Court of Appeal's determination that federal preemption did not bar Cloyd's prosecution was not contrary to, or an unreasonable application of, clearly established federal law
Cloyd argues that his State conviction for operation of a commercial aircraft while under the influence of alcohol or in a careless or reckless manner violates the Supremacy Clause because federal law has wholly preempted the safety regulation of commercial air travel. [DE 2, pp. 11-23]. The Supremacy Clause provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. CONST. art. VI, cl. 2.
The Supreme Court has determined that any analysis of the Supremacy Clause must start with a presumption against preemption: it should be assumed that "the historical police powers of the States are not to be superseded by Federal Act unless that is the clear and manifest purpose of Congress." Cipollone v. Liggett Group, 505 U.S. 504, 516 (1992). Within this context, the Supreme Court has recognized three circumstances in which federal law will be found to preempt state action.
The first, express preemption, occurs when Congress has explicitly stated its intent to preempt state action. Id. The second, field preemption, occurs when "Congress' intent to supercede state law altogether may be found from a scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Pacific Gas Elec. Co. v. State Energy Res. Conservation Dev. Comm'n, 461 U.S. 190, 203-204 (1983). Finally, conflict preemption exists when compliance with coexistent federal and state regulation is an impossibility, or where state law stands as an obstacle to the full purposes and objectives of Congress. Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995).
Cloyd contends that he meets the test for all three types of federal preemption, and therefore the Third District Court of Appeal's affirmance of his conviction was "both contrary to the established law on federal preemption and involve[d] an unreasonable application of the law." [DE 2, p. 12]. We now address each basis for preemption in turn.
1. Express preemption
Congress has authorized the Federal Aviation Administration (FAA) to promulgate regulations necessary for the safety of air commerce. See 49 U.S.C. § 44701(a)(5). One of those regulations, Appendix I of Part 121 of the Federal Aviation Regulations (FAR), titled "Drug Testing Program," includes express preemption language that Cloyd argues bars his prosecution by the State of Florida. That provision reads: "[t]he issuance of 14 CFR parts 65, 121 and 135 by the FAA preempts any state or local law, rule, regulation, order or standard covering the subject matter of 14 CFR parts 65, 121, and 135. . . ." except for state criminal laws that impose "sanctions for reckless conduct of an individual that leads to actual loss of life, injury or damage to property. . . ." 14 C.F.R. Pt. 121, App. I, § XI(A) and (B).
Subsection 121.458, which falls within 14 C.F.R. Part 121 and, arguably, the express preemption language of Appendix I, regulates the use of alcohol by flight crewmembers. Cloyd argues that this federal regulation governs the conduct of commercial airline pilots regarding alcohol; that his conduct in this instance did not lead to a loss of life, injury or damage to property; and that therefore Congress (through its delegation of authority to the FAA) expressly barred the State from prosecuting Cloyd for operating the commercial aircraft while impaired. [DE 2, p. 17].
Section 121.458, at the time the Third District Court of Appeal issued its decision, provided as follows:
(a) General. This section applies to employees who perform a function listed in appendix J to this part for a certificate holder (covered employees). For the purpose of this section, a person who meets the definition of covered employee in appendix J is considered to be performing the function for the certificate holder.
(b) Alcohol concentration. No covered employee shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No certificate holder having actual knowledge that an employee has an alcohol concentration of 0.04 or greater shall permit the employee to perform or continue to perform safety-sensitive functions.
(c) On-duty use. No covered employee shall use alcohol while performing safety-sensitive functions. No certificate holder having actual knowledge that a covered employee is using alcohol while performing safety-sensitive functions shall permit the employee to perform or continue to perform safety-sensitive functions.
(d) Pre-duty use.
(1) No covered employee shall perform flight crewmember or flight attendant duties within 8 hours after using alcohol. No certificate holder having actual knowledge that such an employee has used alcohol within 8 hours shall permit the employee to perform or continue to perform the specified duties.
(2) No covered employee shall perform safety-sensitive duties other than those specified in paragraph (d)(1) of this section within 4 hours after using alcohol. No certificate holder having actual knowledge that such an employee has used alcohol within 4 hours shall permit the employee to perform or continue to perform safety-sensitive functions.
(e) Use following an accident. No covered employee who has actual knowledge of an accident involving an aircraft for which he or she performed a safety-sensitive function at or near the time of the accident shall use alcohol for 8 hours following the accident, unless he or she has been given a post-accident test under appendix J of this part, or the employer has determined that the employee's performance could not have contributed to the accident.
(f) Refusal to submit to a required alcohol test. No covered employee shall refuse to submit to a post-accident, random, reasonable suspicion, or follow-up alcohol test required under appendix J to this part. No certificate holder shall permit an employee who refuses to submit to such a test to perform or continue to perform safety-sensitive functions.
Cloyd also argues that his prosecution is expressly barred by 49 U.S.C. § 45106(a), which preempts state law that is "inconsistent with regulations prescribed [by the FAA] under this chapter." Like the express preemption provision in Appendix I, this statute also does "not preempt a State criminal law that imposes sanctions for reckless conduct leading to loss of life, injury, or damage to property." Again, Cloyd argues that the state criminal statute under which he was convicted is inconsistent with the federal regulations addressed by § 45106(a), and because his conduct did not lead to injury etc., the State was expressly preempted from bringing this prosecution.
In making his argument that the express preemption provision of § 45106(a) operates here, Cloyd focuses on the differing state and federal standards for presumptive alcohol impairment to argue that the State's prosecution of him was inconsistent with FAA regulations. The Florida legislature has established .08 as the standard for impairment for the crime of driving under the influence. Fla. Stat. § 316.193(1)(b). In its civil regulations, the FAA prohibits pilots from having an alcohol concentration of .04 or greater while on duty, or from performing duties within 8 hours after consuming alcohol. 14 C.F.R. § 121.458(b) and (d). The State was allowed to introduce evidence of these two standards at trial. In contrast, Cloyd was not permitted at trial to introduce evidence of the more demanding standard — an alcohol concentration of .10 — for the federal crime of operating a common carrier while under the influence. 18 U.S.C. § 342, 343.
Although Cloyd was initially charged with a violation of that statute, that charge was dismissed before trial.
Tying this together, Cloyd argues that the State's prosecution of him was inconsistent with federal law (and thus comes within the express preemption provisions of § 45106(a)), because the State relied upon a more stringent state standard for impairment than found in federal criminal law, and because the State relied upon federal civil standards to obtain his criminal conviction. [DE 2, pp. 19-20].
The Third District Court of Appeal rejected Cloyd's express preemption argument, and did so by starting with the presumption against preemption. 943 So. 2d at 159. First, tracking the express preemption language in Appendix I, the Court found that Florida statute § 860.13 did not concern the same "subject matter" of 14 C.F.R. parts 65, 121, and 135. These federal regulations, it found, govern the certification and operating requirements of certain airline employees. In contrast, the state appellate court concluded that the state criminal statute regulates the conduct of persons operating aircrafts. On this reasoning the Third District Court concluded that "[t]here is no language in 14 CFR § 121 App. I, § XI or any other federal source stating that state criminal statutes regulating the conduct of those operating aircrafts are preempted." Id. The Court also found that 49 U.S.C. § 41713(b), the federal statute that expressly preempts state laws or regulations related to price, route and services by air carriers, does not preempt the prosecution of a crew member's criminal conduct. Id. at 159-60. The state appellate court did not, however, address the express preemption language in 49 U.S.C. § 45106.
Returning to the habeas standard under § 2254(d)(1), this Court concludes that the Third District Court of Appeal's rejection of Cloyd's express preemption argument is not "contrary to" or an "unreasonable application of" clearly established federal law. The state court correctly articulated the standard for finding express preemption under Supreme Court precedent, 943 So. 2d at 159, and its application of the standard to the facts of this case was not objectively unreasonable.
In reaching this conclusion we note that the Third District Court's determination that the state criminal statute (section 860.13) concerns a different subject matter than the applicable federal regulations ( 14 C.F.R. parts 65, 121 and 135), finds support in the Eleventh Circuit's decision which, although it did not resolve this preemption question on the merits, did observe that the preemption language of Appendix I may not encompass Florida Statute section 860.13 because "it is not absolutely clear that the challenged Florida statutes cover the same subject matter" as the federal regulations. 377 F.3d at 1273.
Again, this Court is mindful that the Eleventh Circuit's review of the preemption doctrine was governed by the "facially conclusive" standard of the Younger abstention doctrine, which is not the standard that governs this habeas petition. The Circuit Court's analysis nevertheless provides useful guidance regarding the issues before this Court.
As the Eleventh Circuit noted, Cloyd's broad view of the express preemption language in Appendix I is at odds with other provisions of the FAA's regulatory scheme. For example, 14 C.F.R. § 91.17(c) provides that state law enforcement officers may investigate suspected violations of state law involving alcohol; this contradicts Cloyd's position that the preemption language in Appendix I encompasses all alcohol-related regulation.
Further undercutting Cloyd's argument is the language found in Appendix J to Part 121, titled "Alcohol Misuse Prevention Program." Appendix J, which is referenced in 14 C.F.R. § 121.458 (the regulation relied on by Cloyd as concerning the same subject matter as the Florida criminal statute) specifically regulates alcohol misuse and includes its own preemption provision, but it only preempts state or local laws, rules or regulations to the extent they conflict with the requirements of the appendix; a significantly more narrow scope of preemption that is articulated in Appendix I, upon which Cloyd relies. This different standard undercuts Cloyd's argument that Congress, in Appendix I, explicitly stated its intention to preempt prosecutions such as his.
Appendix J to 14 C.F.R. pt. 121 reads in pertinent part:
E. Preemption of State and local laws.
1. Except as provided in subparagraph 2 of this paragraph, these regulations preempt any State or local law, rule, regulation, or order to the extent that:
(a) Compliance with both the State or local requirement and this appendix is not possible; or
(b) Compliance with the State or local requirement is an obstacle to the accomplishment and execution of any requirement in this appendix.
2. The alcohol misuse requirements of this title shall not be construed to preempt provisions of State criminal law that impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to transportation employees or employers or to the general public.
As discussed below, the Third District Court of Appeal's rejection of conflict preemption as a basis for reversing Cloyd's conviction is not contrary to or an unreasonable application of clearly established federal law.
While the Third District Court of Appeal did not address Cloyd's argument of preemption under 49 U.S.C. § 45106(a), its implicit finding that this statute did not expressly preempt Cloyd's state prosecution is not contrary to, or an unreasonable application of, clearly established federal law. Section 45106 preempts state and local laws, regulations, standard or orders that are inconsistent with regulations proscribed by the FAA. Cloyd complains, however, not that the state prosecution was inconsistent with a federal regulation, but rather that the alcohol concentration standards introduced by the State were inconsistent with the level fixed in the federal criminal statute. Relying simply on the plain language of § 45106(a), and the presumption against preemption, we conclude that the State court's determination that § 45106(a) did not preempt Cloyd's state prosecution is not unreasonable.
2. Field Preemption
Cloyd also argues that the federal government, through statute and FAA regulations, has occupied the field of "pilot qualifications and capacity to operate commercial aircraft in interstate commerce" (except where there is actual loss of life, injury, or damage to property) [DE 2, p. 14-15], thereby preempting the State's prosecution of him. The State court rejected this argument and in our review of that decision under § 2254(d)(1), we can not agree with Cloyd that this decision was "contrary to" or an "unreasonable application of" clearly established federal law.
As with express preemption, Cloyd bases his argument for field preemption on Congress' direction to the FAA to enact regulations necessary for safety in air commerce, see 49 U.S.C. § 44701(a)(5), and to the extensive federal regulations themselves. [DE 2, p. 12]. Cloyd also relies upon some lower court opinions finding that these regulations establish field preemption in various other areas of aviation safety. [DE 2, pp. 12-14].
As we have already noted, 14 C.F.R. § 91.17 expressly contemplates state law enforcement officials administering alcohol tests to flight crew, and investigating suspected violations of state or local law that may be the same or substantially similar to conduct prohibited by FAA regulations. This regulation, on its face, would appear to leave open the state regulation of alcohol use by pilots, and thus undermine Cloyd's field preemption argument.
Cloyd addresses this apparent problem in his analysis by arguing that § 91.17, which appears in the general aviation regulations, only applies to pilots of noncommercial flights. In contrast, the regulations in Part 121 are specific to commercial air carrier operations, and 18 U.S.C. § 342 authorizes the prosecution of intoxicated commercial airline pilots; together, Cloyd argues, they evidence a federal intent to occupy the field of regulation of alcohol misuse by commercial airline pilots. [DE 2, p. 16]. Thus, Cloyd concludes, the federal scheme leaves open a state prosecution of an intoxicated noncommercial pilot, but preempts state prosecution of an intoxicated commercial airline pilot.
The Third District of Court of Appeal rejected Cloyd's claim of field preemption. Again applying the presumption against preemption, the state Court first noted that the Supreme Court has held that "field preemption should not be inferred `simply because [an] agency's regulations are comprehensive.'" 943 So. 2d at 160 (quoting R.J. Reynolds Tobacco Co. v. Durham County, N.C., 497 U.S. 130, 149 (1986)). The Court then found that the provision of § 91.17(c) authorizing state law enforcement to investigate suspected violations of state law involving alcohol "implies that such [state] laws, once violated, may be prosecuted and are, therefore, not preempted." Id. Thus, the state Court concluded that Congress had not fully occupied the regulation of intoxicated pilots, but rather had left this open as an area for state enforcement. In its analysis, the Third District Court of Appeal did not address Cloyd's contention that 14 C.F.R. § 91.17(c) applies only to noncommercial air travel.
The Third District Court of Appeal's determination that Cloyd's state prosecution was not barred by field preemption is not contrary to or an unreasonable application of clearly established federal law. The Court correctly articulated the standard for finding field preemption under Supreme Court precedent, id., and its application of the standard to the facts of this case was not objectively unreasonable.
The Supreme Court has found field preemption when "Congress' intent to supercede state law altogether may be found from a scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it." Pacific Gas, 461 U.S. at 203-204 (citation and quotation marks omitted). Because Cloyd does not cite any Supreme Court case that holds that the general aviation regulations, and specifically 14 C.F.R. § 91.17, apply only to pilots of private aircraft, the Third District Court of Appeal's interpretation of 14 C.F.R. § 91.17(c) as evincing Congress' intent to allow the state to prosecute intoxicated commercial pilots is not contrary to established federal law. See Dombrowski, 543 F.3d at 1274. Moreover, because the plain language of § 91.17(c) contains no limitation on its application to commercial pilots, the state court's interpretation of the scope of the regulation is not objectively unreasonable.
3. Conflict preemption
In his Petition, Cloyd contends that conflict preemption also applies to bar his state prosecution because state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. [DE 2, p. 21]. Cloyd argues that "Congress intentionally struck a balance between more stringent civil standards for intoxication under the FAR's and more lenient criminal standard for intoxication under federal statutory law." [DE 2, p. 21]. In opposition to this federal scheme, Florida Statute section 860.13(2) allows the State to rely on a federal civil standard to impose state criminal penalties. Thus, Cloyd argues, the State's prosecution in this case creates an obstacle to both the federal goal of uniform regulation of alcohol use by commercial pilots and also to the balance struck by Congress with its different standard for civil and criminal liability. [DE 2, pp. 22-23].
Cloyd does not argue that he could not comply with both Florida law and federal law and regulations, the other basis for finding conflict preemption. See Freightliner Corp., 514 U.S. at 287.
The Third District Court of Appeal, without analysis, rejected Cloyd's conflict preemption argument, finding that "criminalizing the operation of an aircraft while intoxicated does not stand as an obstacle to the federal regulatory scheme." 943 So.2d at 160-61. As Cloyd recognizes, the purposes and objectives of Congress in creating the FAA was "to create regulations necessary to ensure safety in air commerce." [DE 2, p. 12]. The Third District Court's determination that section 860.13(2), which criminalizes the careless and reckless operation of an aircraft, does not stand as an obstacle to the accomplishment of this goal, is not contrary to or and unreasonable application of clearly established federal law.
It is interesting to note that the Eleventh Circuit easily dismissed the notion of conflict preemption, observing that "[n]either party seriously contends that conflict preemption is at issue in the present case". 377 F.3d at 1266. In fact, Cloyd admitted at oral argument before the Eleventh Circuit, "that the pilots could comply with both the Florida criminal statutes and §§ 341-43 without any problem." Id. The Eleventh Circuit, like the Third Circuit Court of Appeal, found that "the state statutes here, criminalizing the operation of commercial airlines while intoxicated, do not stand as an obstacle to the purpose of 18 U.S.C. §§ 341- 343 or the federal regulatory scheme. . . ." Id.
For the reasons set forth above, the Third District Court of Appeal's affirmance of Cloyd's conviction is not contrary to, or an unreasonable application of, clearly established federal law, and this Court RECOMMENDS that
Thomas Porter Cloyd's Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody [DE 1], be DENIED.
The parties will have 10 days from the date of this Report and Recommendation to file written objections, if any, with the Honorable Patricia A. Seitz, United States District Judge. Failure to timely file objections shall bar the parties from attacking on appeal the factual findings contained herein. LoConte v. Dugger, 847 F.2d 745, 749-50 (11th Cir. 1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144 (11th Cir. 1993).
RESPECTFULLY RECOMMENDED at Miami, Florida.