Rafael v. Secretary, DOC et al
Filing
25
OPINION AND ORDER. The Florida Attorney General is DISMISSED from this action. The Clerk is directed to strike Petitioner's improperly filed reply 22 to the Respondent's response in opposition to Petitioner's Motion to Expand the Record. Petitioner's motion to expand the record and for an evidentiary hearing 19 is DENIED. The Petition for Writ of Habeas Corpus 1 is DENIED for the reasons set forth herein. The Clerk is directed to terminate any pending motions, and CLOSE this file. IT IS FURTHER ORDERED that Petitioner IS NOT entitled to a certificate of appealability and IS NOT entitled to appeal in forma pauperis. Signed by Judge Charlene E. Honeywell on 11/9/2011. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSE M. RAFAEL,
Petitioner,
vs.
Case No.
SECRETARY, FLORIDA
CORRECTIONS,
DEPARTMENT
2:10-cv-402-FtM-36DNF
OF
Respondents.1
_________________________________
OPINION AND ORDER
I. Status
Petitioner Jose Rafael (hereinafter “Petitioner” or “Rafael”)
initiated this action by filing a pro se Petition for Writ of
Habeas Corpus (“Petition,” Doc. #1) pursuant to 28 U.S.C. § 2254
Rule 2(a) of the Rules Governing Section 2254 Cases in United
States District Courts (hereinafter the “Rules”) provides that
applicants in “present custody” seeking habeas relief should name
“the state officer having custody of the applicant as respondent.”
The Supreme Court has made clear that there “is generally only one
proper respondent to a given prisoner’s habeas petition.”
Rumsfield v. Padilla, 542 U.S. 426, 435 (2004).
This is “‘the
person with the ability to produce the prisoner’s body before the
habeas court.’”
Id. at 435-436.
When the petitioner is
incarcerated and challenges his present physical confinement “the
proper respondent is the warden of the facility where the prisoner
is being held, not the attorney general or some other remote
supervisory official.” Id. at 436 (citations to other authorities
omitted). Alternatively, the chief officer in charge of the state
penal institution is also recognized as the proper named
respondent. Rule 2(a), Sanders v. Bennet, 148 F.2d 19 (D.C. Cir.
1945). In Florida, the proper Respondent in this action is the
Secretary of the Florida Department of Corrections.
Thus, the
Florida Attorney General will be dismissed from this action.
1
and memorandum of law (“Memorandum,” Doc. #2) on June 19, 2010.2
The Petition challenges Petitioner's December 2, 2005 judgment of
conviction for trafficking in heroin, 28 grams or more, which was
entered in the Twentieth Judicial Circuit, Lee County, Florida
(case number 04-001054CF).
Respondent
Response).
filed
a
Petition at 1.3
Response
to
the
Petition
(Doc.
#13,
Respondent moves for summary judgment based upon
Petitioner's failure to raise a federal constitutional issue, or
failure to satisfy his burden under 28 U.S.C. § 2254(d) and (e).
Respondent filed exhibits (Exhs. 1-31) in support of his Response,
including the record on direct appeal (Exh. 1).
Petitioner filed
a Reply (Doc. #14, Reply) to the Response and a supporting “points
and authorities” (Doc. #15) on January 27, 2011.
On June 29, 2011, Petitioner filed a motion to expand the
record and incorporated a motion for an evidentiary hearing.
Pursuant to the Court’s Order (Doc. #19, Motion), Respondent filed
a Response (Doc. #21, Response) opposing the Motion on July 20,
The Petition was filed in this Court on June 24, 2010;
however, the Court applies the “mailbox rule” and deems a petition
“filed on the date it is delivered to prison authorities for
mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.
2009).
2
The page numbers referenced within this Order, other than to
the page number referenced in the Exhibits, are to the page of the
identified document as it appears on the Court’s case management
electronic computer filing system. Exhibits are available in paper
format only.
3
-2-
2011.
Petitioner filed a Reply (Doc. #22), without first seeking
leave from the Court.4
Prior to turning to the merits of the
Petition, the Court will address Petitioner’s motion to expand the
record.
In the June 29 Motion, Petitioner requests that the Court
expand the record to include a copy of the transcript from the
trial court’s pre-trial hearing held on February 24, 2005, a copy
of which Petitioner does not attach to his Motion.
docket history.
See Motion;
Petitioner submits that Respondent’s exhibits do
not include a copy of this Brady hearing.
Id. at 2.
Petitioner
claims that the Court needs a copy of this transcript to review his
claim discussed in his Reply.
Id.
Petitioner further requests
that the Court hold an evidentiary hearing to determine the merits
of his Petition.
Id.
Respondent opposes Petitioner’s Motion in its entirety, noting
that the Petition does not make any reference to the February 24,
2005 hearing.
Response at 1.
Instead, Respondent notes that
Petitioner’s ineffective assistance of appellate counsel claim
based on the failure to raise the denial of the motion to suppress
on direct appeal refers to testimony and evidence taken on March
10, 2005, November 30, 2005, and February 4, 2005.
Nowhere does
Local Rule 3.01(c)(M.D. Fla. 2009) states that no party shall
file a reply or further memorandum directed to the motion or
response unless the Court grants leave. Petitioner neither sought
leave, nor did the Court grant him leave to file a Reply.
Accordingly, the Clerk of Court shall strike the Reply.
4
-3-
the Petition refer to testimony and evidence from the February 24,
2005 hearing.
Further, Respondent submits that the transcript of
the February 24, 2005 hearing was not included in the record of
appeal.
Id. at 1-2.
Therefore, Respondent argues that Petitioner
is barred from seeking to introduce new evidence that was not
before the State court reviewing his claim.
Id. at 2.
Respondent
further submits that Petitioner is not entitled to a federal
evidentiary hearing. Id. The Court will deny Petitioner’s Motion.
Rules 7(a) of the Rules Governing Section 2254 Cases concerns
expansion of the record.
Rule 7(a) states:
If the petition is not dismissed, the judge may direct
the parties to expand the record by submitting additional
materials relating to
the petition.
The judge may
require that these materials be authenticated.
Id. (emphasis added).
Thus, if the District Court determines from
the record that it cannot summarily rule on the Petition, then the
Court may direct that the record be expanded.
To the extent that a petitioner seeks to supplement the record
with new evidence, a petitioner must comply with the statutory
requirements applicable to requests for an evidentiary hearing
under 28 U.S.C. § 2254(e)(2)(A).
1162-63 (11th Cir. 2010).
either
that
his
claim
Ward v. Hall, 592 F.3d 1144,
Thus, a petitioner must demonstrate
relies
on
a
retroactive
rule
of
constitutional law, or that the factual predicate of his claim
could
not
have
diligence.
been
discovered
Id.
-4-
through
the
exercise
of
due
Petitioner seeks to expand the record to include a copy of the
transcript from the pre-trial hearing held on February 24, 2005
concerning a Brady violation, but the Petition does not raise a
claim that relies on this record.
Petitioner’s claims include
appellate counsel’s ineffective assistance for failing to argue
that the trial court erred in denying his motion to suppress and a
due process violation stemming from the post-conviction court not
allowing Petitioner to file an amended post-conviction motion.
Thus, the February 24, 2005 hearing is unrelated to the grounds
raised in the Petition and will not assist the court in ruling on
these claims. Significantly, a copy of this part of the transcript
was not before any of the post-conviction courts when reviewing
Petitioner’s claims for post-conviction relief.
The Court has a
copy of the pre-trial transcript of the motion to suppress hearing
held on March 10, 2005. Exh. 3. Therefore, Petitioner’s Motion to
Expand the Record to include a copy of the February 25, 2005 pretrial hearing is denied.
This Court has carefully reviewed the record and, for the
reasons set forth below, concludes no evidentiary proceedings are
required in this Court.
Schriro v. Landrigan, 550 U.S. 465, 474,
127 S. Ct. 1933, 1939-40 (2007).
Petitioner does not proffer any
evidence that would require an evidentiary hearing, Chandler v.
McDonough, 471 F.3d 1360 (11th Cir. 2006), and the Court finds that
the pertinent facts of the case are fully developed in the record
-5-
before the Court.
Schriro, 550 U.S. at 474.
The Court now turns
to the merits of the Petition.
II.
Procedural History
Information and Trial5
On May 7, 2004, the State filed an Information charging
Petitioner and his co-defendant, German Gustavo Franco, with one
count of Trafficking in Heroin, 28 Grams or More.
at 1-2.
Exh. 1, Vol. I
On December 1, 2005, the case proceeded to trial before
Circuit Judge Frederick Hardt. Petitioner was represented at trial
by private counsel, Rebecca M. Hodge and Michael Schneider.
The
jury returned a verdict finding Petitioner guilty as charged. Exh.
1, Vol. 4 at 543.
On December 2, 2005, the court adjudicated
Petitioner guilty and sentenced him to twenty-five years in prison.
Exh. 1, Vol. 1 at 3-14.
Motion to Suppress
Prior to trial, on January 19, 2005, Petitioner’s attorney
filed a motion to suppress the drugs found based on an unlawful
search and seizure.
Exh. 2.
An evidentiary hearing was conducted
by the trial court on March 10, 2005.
Exh. 3.
After considering
the testimony of the witnesses and other evidence, the court took
the matter under advisement.
On April 7, 2005, the court issued a
Petitioner does not dispute the Respondent’s statement
regarding the procedural history, with the exception that
Petitioner disputes the facts surrounding the pre-trial motion to
suppress.
See Reply at 1.
Therefore, the Court incorporates
herein the Respondent’s recitation of the procedural history.
5
-6-
written order denying Petitioner’s motion to suppress.
Exh. 4.
The court concluded that the traffic officers had probable cause to
stop Petitioner’s vehicle and that under all of the circumstances
the subsequent detention of Petitioner prior to the alert by the
drug dog was not unreasonable.
In addition, the court found that
the drugs would have been found under the inevitable discovery
doctrine.
Id.
Direct Appeal
Petitioner, through counsel, pursued a direct appeal raising
three issues: (1) the trial court erred in instructing the jury
that it could not consider the sentence given to Carlos Lopez, the
confidential informant; (2) the trial court erred in not conducting
a Richardson hearing as to the failure to disclose the results of
the fingerprint comparison; and (3) the trial court erred in not
granting appellant’s motion for judgment of acquittal.
The State filed an answer brief.
Exh. 6.
Exh. 5.
On December 15, 2006,
the appellate court per curiam affirmed Petitioner’s conviction and
sentence.
Exh. 7; Rafael v. State, 944 So. 2d 993 (Fla. 2d DCA
2006)[table].
The mandate was issued on January 8, 2007.
Rule 3.850 Motions
On January 8, 2008, Petitioner filed a pro se motion for postconviction relief pursuant to Rule 3.850.
Exh. 9.6
Petitioner
Exhibit 9 is a copy of the docket sheet showing that
Petitioner filed the Motion. A copy of the Motion is located at
6
(continued...)
-7-
raised
one
claim
of
ineffective
assistance
of
trial
counsel
stemming from counsel’s failure to allege a discovery violation and
for not attempting to obtain missing discovery items that were
critical to the defense.
On January 30, 2008, the post-conviction court entered an
order dismissing Petitioner’s Rule 3.850 motion on the basis that
Petitioner failed to allege any supporting facts to specify how
Petitioner was prejudiced or how the outcome would have been
different, as required by the two-prong test of Strickland v.
Washington.
Exh. 10.
On February 20, 2008, Petitioner’s attorney filed a photocopy
of the original Rule 3.850 Motion, with a memorandum in support.
Exh. 11.
On February 24, 2008,7 the trial court issued an order
denying the duplicate motion as successive.
appealed
assigned,
the
but
orders.
the
Different
cases
appellate
progressed
Exh. 12.
case
together.
Petitioner
numbers
Exh.
14.
were
On
September 24, 2008, the appellate court per curiam affirmed the
trial court’s February 24, 2008 order of denial.
Exh. 15; Rafeal
v. State, 993 So. 2d 527 (Fla. 2d DCA 2008)[table]. Petitioner
6
(...continued)
Exhibit 11. See also Exh. 12 (stating Exh. 11 is a photocopy of
the original).
The circuit judge signed the order on February 4, 2008.
Respondent contends the date is a clerical error and the order was
really entered on February 24, 2008. Response at 4, fn. 3. For
purposes of this Order, the date the order was issued is not
dispositive.
7
-8-
filed a motion for rehearing, which the appellate court denied on
October 21, 2008. Exh. 16, Exh. 17.
November 7, 2008.
The court issued mandate on
Exh. 18.
Petition Alleging Ineffective Assistance of Appellate Counsel
On July 24, 2008, while Petitioner’s Rule 3.850 Motion was
pending, Petitioner filed a pro se petition for writ of habeas
corpus alleging ineffective assistance of appellate counsel.
19.
Exh.
The sole claim raised in the petition was that appellate
counsel rendered ineffective assistance when he failed to brief the
issue that the trial court erred in failing to suppress the
narcotics discovered during the search of Petitioner’s vehicle.
Petitioner contended that law enforcement officers fabricated an
excuse to effect the stop and search of his vehicle.
Id.
On August 12, 2008, in case number 2D08-3721, the appellate
court filed an order denying the petition for writ of habeas corpus
without discussion.
(Fla.
2d
rehearing.
DCA
Exh. 12; Rafael v. State, 989 So. 2d 1193
2008)[table].
Exh. 21.
September 16, 2008.
Petitioner
filed
a
motion
for
The appellate court denied rehearing on
Exh. 22.
Third Rule 3.850 Motion
On November 17, 2008, Petitioner, proceeding pro se, filed a
third Rule 3.850 Motion.
Exh. 23.
Petitioner alleged twelve
claims of ineffective assistance of trial counsel. Pursuant to the
trial court’s order to show cause, the State filed a response to
-9-
Petitioner’s Rule 3.850 Motion with attachments, arguing that the
grounds were successive or constituted an abuse of the judicial
process under Rule 3.850(f) and should be denied.
Petitioner filed a reply to the State’s Response.
Exh. 24.
Exh. 25.
On September 1, 2009, the post-conviction court entered an
order denying, as procedurally-barred, Petitioner’s third Rule
3.850 Motion.
Exh. 26.
The post-conviction court agreed with the
State that one ground (Ground 7) was successive, and the remaining
eleven grounds were an abuse of procedure.
The post-conviction
court also stated in a footnote, that contrary to Petitioner’s
contentions that the post-conviction court did not give him an
opportunity to amend his original motion pursuant to Spera v.
State, 971 So. 2d 754 (Fla. 2007), Petitioner filed a subsequent
motion in an attempt to cure the deficiencies to no avail.
Exh. 26
at 1, fn. 1.
Petitioner appealed the order denying relief.
Exh. 27.
Petitioner filed a pro se initial brief, claiming the trial court
erred under state law by denying his post-conviction motions
without leave to amend.
file a brief in response.
Exh. 28.
The State was not required to
Exh. 29.
On March 3, 2010, in Case Number 2D09-4604, the appellate
court per curiam affirmed the post-conviction court’s order denying
Petitioner’s third Rule 3.850 Motion. Exh. 30, Rafael v. State, 29
-10-
So. 3d 303 (Fla. 2d DCA 2010)[table].
29, 2010.
The mandate issued on March
Exh. 31.
III.
Applicable § 2254 Law
Petitioner filed his timely8 Petition after April 24, 1996,
the effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Consequently, post-AEDPA law governs this action.
Quarterman, 550 U.S. 233, 246 (2007);
Abdul-Kabir v.
Penry v. Johnson, 532 U.S.
782, 792 (2001); Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th
Cir. 2007).
Under AEDPA, the standard of review "is 'greatly
circumscribed and is highly deferential to the state courts.'
Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002)."
Stewart
v. Sec'y Dep't of Corr., 476 F.3d 1193, 1208 (11th Cir. 2007).
See
also Parker v. Sec'y Dep't of Corr., 331 F.3d 764 (11th Cir. 2003).
AEDPA altered the federal court’s role in reviewing state prisoner
Respondent concedes that, if the court applies the mail box
rule to Petitioner’s initial Rule 3.850 Motion, then the Petition
is timely filed within the one-year federal limitations period set
forth in 28 U.S.C. Section 2244(d). Response at 8, fn. 5. The
Court gives a petitioner the benefit of the state’s mailbox rule
with respect to his state court filings when calculating the oneyear limitations period under 28 U.S.C. § 2244(d). Under Florida’s
inmate “mailbox rule,” Florida courts “will presume that a legal
document submitted by an inmate is timely filed if it contains a
certificate of service showing that the pleading was placed in the
hands of prison or jail officials for mailing on a particular date,
if . . . the pleading would be timely filed if it had been received
and file-stamped by the Court on that particular date.” Thompson
v. State, 761 So. 2d 324, 326 (Fla. 2000). Petitioner’s initial
Rule 3.850 is entitled to the benefit of Florida’s mail box rule.
Therefore, the instant Petition is timely filed.
8
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applications in order to "prevent federal habeas 'retrials' and to
ensure that state-court convictions are given effect to the extent
possible under law."
A.
Bell v. Cone, 535 U.S. 685, 693 (2002).
Federal Question
A federal court may only entertain an application for a writ
of habeas corpus from a state prisoner who claims his custody
violates the "Constitution or the laws or treaties of the United
States."
28 U.S.C. § 2254(a).
Questions of state law are
generally insufficient to warrant review or relief by a federal
court under § 2254.
Estelle v. McGuire, 502 U.S. 62, 68 (1991);
Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983);
Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000).
A
violation of a state rule of procedure, or of state law itself, is
not a violation of the federal constitution.
Wallace v. Turner,
695 F.2d 545, 548 (11th Cir. 1982); Branan v. Booth, 861 F.2d 1507,
1508 (11th Cir. 1989).
"It is a fundamental principle that state
courts are the final arbiters of state law, and federal habeas
courts should not second-guess them on such matters."
Sec'y.
Dep't
of
Corr.,
397
F.3d
1338,
1355
2005)(internal quotations and citations omitted).
-12-
Herring v.
(11th
Cir.
B.
Exhaustion and Procedural Default
A federal court may only review an issue under § 2254 if
petitioner first afforded the state courts an adequate opportunity
to address that issue.
28 U.S.C. § 2254(b)(1)(A).
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C.
§ 2254(b)(1), thereby giving the State the opportunity to
pass upon and correct alleged violations of its
prisoners' federal rights. To provide the State with the
necessary opportunity, the prisoner must fairly present
his claim in each appropriate state court (including a
state supreme court with powers of discretionary review),
thereby alerting that court to the federal nature of the
claim.
Baldwin v. Reese, 541 U.S. 27, 29 (2004)(internal citations and
quotations omitted). This imposes a "total exhaustion" requirement
in which all the federal issues must have first been presented to
the state courts.
Rhines v. Weber, 544 U.S. 269, 274 (2005).
"In
other words, the state prisoner must give the state courts an
opportunity to act on his claims before he presents those claims to
a federal court in a habeas petition." O'Sullivan v. Boerckel, 526
U.S. 838, 842 (1999).
See also Henderson v. Campbell, 353 F.3d
880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas
relief cannot raise a federal constitutional claim in federal court
unless
he
first
properly
raised
the
issue
in
the
state
courts.")(quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.
2001));
Duncan
v.
Henry,
513
U.S.
364,
365
(1995)(stating
"exhaustion of state remedies requires that petitioners 'fairly
present federal claims to the state courts in order to give the
-13-
State the opportunity to pass upon and correct alleged violations
of its prisoners’ federal rights'").
"A
claim
is
procedurally
defaulted
if
it
has
not
been
exhausted in state court and would now be barred under state
procedural rules."
Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir.
2008). Under the procedural default doctrine, “[i]f the petitioner
has failed to exhaust state remedies that are no longer available,
that failure is a procedural default which will bar federal habeas
relief, . . . . .”
2001).
Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir.
A procedural default for failing to exhaust state court
remedies will only be excused in two narrow circumstances.
First,
a petitioner may obtain federal habeas review of a procedurally
defaulted claim if he shows both “cause” for the default and actual
“prejudice” resulting from the asserted error.
House v. Bell, 547
U.S. 518, 536-37 (2006); Mize v. Hall, 532 F.3d at 1190.
Second,
under exceptional circumstances, a petitioner may obtain federal
habeas review of a procedurally defaulted claim, even without a
showing of cause and prejudice, if such review is necessary to
correct a fundamental miscarriage of justice.
House v. Bell, 547
U.S. 518, 536 (2006); Edwards v. Carpenter, 529 U.S. 446, 451
(2000).
C.
Deference to State Court Decision
Even where a petitioner’s claim raises a federal question, was
exhausted, is not procedurally barred, and was adjudicated on the
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merits in the state courts, habeas relief may not be granted with
respect to a claim adjudicated on the merits in state court unless
the adjudication of the claim:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
Ct. 1388, 1398 (2011).
Cullen v. Pinholster, ___ U.S. ___, 131 S.
"This is a difficult to meet, and highly
deferential standard for evaluating state-court rulings, which
demands that the state-court decisions be given the benefit of the
doubt."
Id. (internal quotations and citations omitted).
A state
court’s summary rejection of a claim, even without explanation,
qualifies
as
deference.
2008).
an
adjudication
on
the
merits
which
warrants
Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.
Recently, the Supreme Court held that review "is limited
to the record that was before the state court that adjudicated the
claim on the merits."
Cullen, 131 S. Ct. at 1398.
Thus, the Court
is limited to reviewing only the record that was before the state
court at the time it rendered its order.
Id.
“Clearly established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the decisions
of the United States Supreme Court at the time the state court
issues
its
decision.
Carey
v.
-15-
Musladin,
549
U.S.
70,
74
(2006)(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). “[T]o
be ‘contrary to’ clearly established federal law, the state court
must either (1) apply a rule that contradicts the governing law set
forth by Supreme Court case law, or (2) reach a different result
from the Supreme Court when faced with materially indistinguishable
facts.”
Ward, 591 F.3d at 1155 (internal quotations and citation
omitted); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state
court
of
decision
involves
an
“unreasonable
application”
the
Supreme Court’s precedents if the state court correctly identifies
the governing legal principle but applies it to the facts of the
petitioner’s case in an objectively unreasonable manner, Brown, 544
U.S. at 134; Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000),
cert. denied, 534 U.S. 956 (2001); or, “if the state court either
unreasonably
precedent
to
extends
a
new
a
legal
principle
where
context
from
should
it
[Supreme
not
Court]
apply
or
unreasonably refuses to extend that principle to a new context
where it should apply.”
Bottoson, 234 F.3d at 531 (quoting
Williams, 120 S. Ct. at 1520).
inquiry
“requires
the
state
The “unreasonable application”
court
decision
to
be
more
than
incorrect or erroneous”; it must be “objectively unreasonable.”
Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted);
Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155.
D.
Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are reviewed under
the standards established by 28 U.S.C. § 2254(d). Newland v. Hall,
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527 F.3d 1162, 1183 (11th Cir. 2008). Post-AEDPA, the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984), remains
applicable to the claims of ineffective assistance of counsel
raised in this case.
Newland, 527 F.3d at 1184.
In Strickland,
the Supreme Court established a two-part test to determine whether
a convicted person is entitled to habeas relief on the grounds that
his or her counsel rendered ineffective assistance: (1) whether
counsel’s
representation
objective
standard
of
was
deficient,
i.e.,
reasonableness”
“fell
“under
below
an
prevailing
professional norms,” which requires a showing that “counsel made
errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment”; and (2) whether
the deficient performance prejudiced the defendant, i.e., there was
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,
which “requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.”
Strickland, 466 U.S. at 688; see also Bobby Van Hook,
558 U.S. ___, 130 S. Ct. 13, 16 (2009).
review
of
a
deferential."
claim
under
Knowles v.
the
Thus, a habeas court's
Strickland
standard
is
"doubly
Mirzayanze, ___ U.S. ___, 129 S. Ct.
1411, 1420 (2009)(citing Yarborough v. Gentry, 540 U.S. 1, 5-6
(2003)).
"A reasonable probability is a probability sufficient to
undermine confidence in the outcome."
Strickland, at 694.
That
requires a "substantial," not just "conceivable," likelihood of a
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different result.
Harrington v. Richter, 562 U.S. ___, 131 S. Ct.
770, 791 (2011).
States may “impose whatever specific rules . . . to ensure
that criminal defendants are well represented,” but “the Federal
Constitution imposes one general requirement: that counsel make
objectively reasonable choices.”
Bobby Van Hook, 130 S. Ct. at 17
(internal quotations and citations omitted).
It is petitioner who
bears the heavy burden to “prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable.”
Jones v.
Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006), cert. denied sub
nom. Jones v. Allen, 127 S. Ct. 619 (2006).
A court must “judge
the reasonableness of counsel’s conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct,” Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466
U.S. at 690), applying a “highly deferential” level of judicial
scrutiny.
Id.
A court must adhere to a strong presumption that
“counsel’s conduct falls within the wide range of reasonable
professional assistance.”
Strickland, 466 U.S. at 689.
An
attorney is not ineffective for failing to raise or preserve a
meritless issue.
Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir.),
cert. denied sub nom. Ladd v. Burton, 493 U.S. 842 (1989); United
States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (“a lawyer’s
failure to preserve a meritless issue plainly cannot prejudice a
client”). “To state the obvious: the trial lawyers, in every case,
could have done something more or something different.
-18-
So,
omissions are inevitable.
or
‘what
is
prudent
But, the issue is not what is possible
or
appropriate,
constitutionally compelled.’”
but
only
what
is
Chandler v. United States, 218 F.3d
1305, 1313 (11th Cir. 2000)(quoting Burger v. Kemp, 483 U.S. 776,
794 (1987)).
“In considering the reasonableness of an attorney’s decision
not to raise a particular claim, [a court] must consider ‘all the
circumstances, applying a heavy measure of deference to counsel's
judgments.’”
Eagle, 279 F.3d 926, 940 (11th Cir. 2001) (quoting
Strickland, 466 U.S. at 691).
attorney
performance
“Thus, ‘[a] fair assessment of
requires
that
every
effort
be
made
to
eliminate the distorting effects of hindsight to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at that time.’”
Strickland, 466 U.S. at 689).
Id. (quoting
The reasonableness of counsel’s
assistance is reviewed in light of both the facts and law that
existed at the time of the challenged conduct.
Chateloin v.
Singletary, 89 F.3d 749, 753 (11th Cir. 1996).
E. Ineffective Assistance of Appellate Counsel
The
Strickland
standard
also
governs
ineffective assistance of appellate counsel.
claims
asserting
To determine whether
Petitioner was prejudiced by his appellate attorney’s failure to
raise a particular issue, the Court “must decide whether the
arguments the [Petitioner] alleges his counsel failed to raise were
significant enough to have affected the outcome of his appeal.”
-19-
United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000)
(citing Miller v. Dugger, 858 F.2d 1536, 1538 (11th Cir. 1988)),
cert. denied, 531 U.S. 1131 (2001). “If [a court] conclude[s] that
the omitted claim would have had a reasonable probability of
success, then counsel’s performance was necessarily prejudicial
because it affected the outcome of the appeal.”
Eagle v. Linahan,
279 F.3d 926, 943 (11th Cir. 2001)(citing Cross v. United States,
893 F.2d 1287, 1290 (11th Cir. 1990)).
IV.
A.
Findings of Fact and Conclusions of Law
Ground One
Petitioner argues that appellate counsel was ineffective
because counsel failed to argue that the trial court erred when it
denied Petitioner’s motion to suppress based on the facts presented
in the State Court. In Response, Respondent asserts that appellate
counsel cannot be deemed ineffective for failing to brief the
suppression issue, which would have had little chance of success,
if any, on direct appeal.
Response at 23.
Court to the trial court’s order of denial.
Respondent refers the
Id. at 22.
Petitioner’s claim of appellate counsel error was considered
by the Florida appellate court in his petition for writ of habeas
corpus. The Court finds that Ground One is exhausted to the extent
raised in his State habeas petition below.
U.S. 364 at 365; Exh. 19 at 3.
appellate
court’s
rejection
of
Duncan v. Henry, 513
Further, the Court deems the
Petitioner’s
-20-
claims
to
be
an
adjudication on the merits, which warrants deference by this Court.
Ferguson v. Culliver, 527 F. 3d 1146.
The record shows that the trial court held a hearing on
Petitioner’s motion to suppress, after which the trial court denied
Petitioner’s motion, finding as follows:
This matter is before the Court on Defendant's
Motion to Suppress. The Defendant is charged with
possession of heroin, 28 grams or more, a first degree
felony.
The Defendant was the subject of an undercover drug
investigation conducted by the Collier County Sheriff’s
Office (CCSO) with a joint task force including the Drug
Enforcement Administration (DEA) during a four-month
period in late 2003 and early 2004. During this period,
narcotics investigators had several undercover meetings
with the Defendant during which the purchase of cocaine
and heroin was discussed. The investigation ultimately
culminated on April 7, 2004 with a planned purchase of
500 grams of heroin from the Defendant by a confidential
informant (CI) for $38,000.00.
The narcotics investigators had the Defendant under
surveillance and were prepared to arrest the Defendant
had the drug deal been consummated. However, the
Defendant and the CI never reached an agreement as to the
location for the drug buy. The CI and the investigators
wanted the deal to take place in public at the Baymont
Inn while the Defendant wanted the deal to be done at his
residence. The CI was wired for sound and the Defendant
came to the Baymont Inn to tell the CI that he wanted to
change the location of the buy to his apartment. The CI
felt at risk and when the CI told the Defendant he would
not go to his apartment, the deal was off.
The Defendant then told the CI that he had to take
the heroin back to Miami and he warned the CI
that
nothing should interfere with his taking the heroin back
to Miami. This conversation was in Spanish and was
translated to English for the investigators in real time.
The Defendant's residence and vehicle were under
surveillance. Subsequently that evening the Defendant was
-21-
observed leaving his apartment in Golden Gate. He placed
a package in the rear of his 1998 Lincoln Navigator and
proceeded to drive east on 1-75 toward the east coast.
At
this
time,
the
narcotics
investigators,
suspecting the 500 grams of heroin to be in the
Defendant's vehicle, contacted CCSO traffic patrol units
on 1-75 that were conducting a speed enforcement detail
and requested that they observe the Defendant's vehicle
for any traffic violations or infractions, and further
told the traffic officers that they suspected that heroin
was in the Defendant's vehicle. They also advised that
this vehicle had Florida tag registration "DV88K."
The narcotics investigators acknowledged that they
needed probable cause to stop and search the Defendant's
vehicle and they concluded that a traffic stop would be
the best way to have probable cause. However, the
investigators intended to stop and search the Defendant's
vehicle if no traffic stop was made before the vehicle
left Collier County.
The Defendant’s vehicle proceeded east on 1-75, and
when two traffic units (Corporal Salls and Corporal
Beckos) made contact with the Defendant’s vehicle near
mile marker 90, the registration for "DV88K" was run
through a computer search and was reported as not
currently registered. The computer search by Corporal
Salls occurred at 20:11:53 hours (8:11:53 pm civilian
time). (See State's Ex. #4)
At approximately this same time, a speed check using
radar clocked the Defendant's vehicle at a speed of 74
mph in a 70 mph zone. A traffic stop of the Defendant’s
vehicle was made by Corporal Salls and Corporal Beckos.
At 20:1224 hours, Corporal Beckos ran a second computer
search for “DV88K” which again reported the vehicle as
not registered. Corporate Salls and Corporal Beckos were
now concerned that the registration was fraudulent or
that the vehicles was possibly stolen.
Corporal Salls obtained the vehicle registration
papers
from the Defendant and determined that the
vehicle identification number on the vehicle matched the
number on the registration papers. Corporal Sails then
realized that the license regulation was not “DV88K”, but
rather “DV8BK” which was reported as a valid registration
in the name of the Defendant.
-22-
Corporal Beckos then began to write a warning
citation to the Defendant for the speeding violation. He
could not complete writing the citation until the vehicle
registration was verified.
While Corporal Beckos was still writing the
citation, a canine unit (Corporal Epright and Sabre)
arrived at the scene to conduct a narcotics “sniff”
search of the outside perimeter of the Defendant’s
vehicle. Before this "sniff' search could proceed,
Corporal Salls and Corporal Beckos removed the Defendant
and the passenger (German Gustavo Franco) from the
vehicle to a secure area. Sabre was a properly trained
and certified drug-sniffing dog with an excellent record
for reliable alerts. Sabre alerts for drugs in a passive
manner by sitting down as opposed to scratching or
pawing.
Sabre alerted for drugs at the right rear of the
Defendant’s vehicle.
The Defendant contends that the
video tape (State's Ex. #1) of the "sniff" search shows
that Corporal Epright caused a false alert by pulling
Sabre's leash backward. After reviewing the videotape
several times, the Court is satisfied that the alert was
not fake.
After the alert, Corporal Salls conducted a search
and discovered a bag containing a light brown substance.
The Defendant was arrested and placed in handcuffs. The
substance was field tested as positive for heroin and
weighed approximately 503 grams.
The video tape (State's Ex. #1) of the traffic stop
shows the total elapsed time from the initial stop until
the alert by Sabre was approximately 13 minutes.
Probable cause for traffic stop, detention and canine alert
The traffic stop was initiated because (1) the
computer check of the vehicle registration for the
Defendant’s vehicle indicated that the vehicle was not
currently registered; and (2) the Defendant’s vehicle was
clocked by radar at a speed of 74 mph in a 70 mph zone.
These facts gave the traffic officers probable cause to
stop the Defendant’s vehicle. The correct test to be
applied to determine the validity of a traffic stop is
whether the officer who initiated the stop had an
objectively reasonable basis for making the stop. Dobrin
-23-
v. Florida Dept. of Highway Safety and Motor Vehicles,
874 So. 2d 1171, 1174 (Fla. 2004) citing Whren v. United
States, 517 U.S. 806, 116 S. Ct. 1769 (1996).
The
constitutional reasonableness of a traffic stop does not
depend on actual, subjective motivation of the officers
involved in the stop. Dobrin, Supra.
In a case factually similar to the case at bar, the
Fourth District held in Sanchez v. State, 847 So. 2d 1043
(Fla. 4th DCA 2003) that even though the officers were
essentially “lying in wait” until the defendant committed
a traffic infraction, no matter how insignificant, the
officers’ subjective reasons for the stop were not
significant.
In Sanchez, the officers received an
anonymous tip that the Defendant was transporting cocaine
from Miami and began a traffic surveillance. A traffic
stop was initiated by the officers after Sanchez was
clocked at a speed of 78 mph in a 70 mph zone on I-95.
The Court upheld the legality of the traffic stop.
Once the stop for a traffic infraction is made, the
officers are justified in detaining the driver “only for
the time reasonably necessary to issue a citation or
warning.” Sanchez, at 1046. In the case at bar, the
total elapsed time from the stop until the alert by the
drug dog was 13 minutes. During this time, the traffic
officers walked up to the Defendant’s vehicle, made
contact with the Defendant and the passenger and checked
the vehicle registration and the Defendant’s driver
license. It took several minutes to verify the proper
vehicle registration. When the canine unit arrived, the
traffic officers removed the Defendant and the passenger
to a secure area before the “sniff” search could proceed.
According to Corporal Epright, Corporal Beckos was still
writing the warning ticket when he arrived. When the
officers are still in the process of investigating and
writing the ticket, the detention will not be rendered
unreasonable when other law enforcement personnel,
including a canine unit, converge on the scene. In the
case of Sands v. State, 753 So. 2d 630, 632 (Fla. 5th DCA
2000), another case factually similar to the case at bar,
the Fifth District held that a detention after a traffic
stop was not unreasonable where only 15 minutes had
elapsed from the initial stop until the canine unit
arrived on the scene. As in the case at bar, in Sands,
the officer was still writing the ticket when the canine
unit arrived. The decision of the Second District in
case Nulph v. State, 838 So. 2d 1244 (Fla. 2d DCA 2003)
-24-
is distinguishable from the case at bar because in Nulph
the officer admitted that he was waiting to start writing
the ticket until the canine unit arrived. In the case at
bar, Corporal Beckos was not waiting and was in the
process of writing the ticket when the canine unit
arrived.
The use of a “sniff dog” such as Sabre in the case
at bar does not constitute a search or seizure. Joseph
v. State, 588 So. 2d 1014, 1015 (Fla. 2d DCA 1991). An
alert by a properly trained police dog provides probable
cause for a search. State v. Robinson, 756 So. 2d 249
(Fla. 5th DCA 2000); Joseph v. State, Supra.
Accordingly, based upon the unrefuted testimony of
the traffic officers, the Court finds that the traffic
officers had probable cause to stop the Defendant's
vehicle and that under all of the circumstances the
subsequent detention of the Defendant prior to the alert
by the “sniff” dog was not unreasonable.
Inevitable Discovery Doctrine
The State relies upon the inevitable discovery
doctrine on the grounds that the heroin would have
ultimately been discovered even if the traffic stop and
subsequent detention was not legal. The inevitable
discovery doctrine is an exception to the "fruit of the
poisonous tree" doctrine whereby evidence obtained as a
result of unconstitutional police procedures is still
admissible if it is shown that the evidence would
ultimately have been discovered by other legal means.
State v. Duggins, 691 So.2d 566,568 (Fla. 2nd DCA 1997);
Ruffin v. State, 651 So.2d 206,207 (Fla. 2d DCA 1995). In
the case at bar, the narcotics investigators testified
that had the traffic officers not initiated a stop based
upon a traffic infraction the Defendant's vehicle would
nevertheless have been stopped and searched for the
heroin before the vehicle reached the Broward County line
on 1-75. Although the narcotics investigators preferred
to have a traffic stop and drug dog alert to establish
probable cause for a search of the Defendant's vehicle,
the investigators intended to stop and search the
Defendant vehicle in any event before it left Collier
County. In the case of Rosales v. State, 878 5o.2d 497
(Fla. 3d DCA 2004), another case factually similar to the
case at bar, a confidential informant (CI), controlled by
two detectives, told the defendant that he wished to buy
-25-
a half kilo (500 grams) of cocaine. The defendant told
the CI that he would need to obtain that amount of
cocaine in Miami. The next day, the defendant spoke to
the Cl and informed him that he would have the half kilo
later that day or the next. The CI advised the detectives
of this conversation. The detectives then told traffic
patrol officers on U.S. 1 to look for the defendant's
vehicle as it traveled from Key Largo to Key West and to
follow the defendant and initiate a traffic stop if the
traffic officers observed a traffic violation.
As in the case at bar, in Rosales the detectives
testified that if a traffic stop was not made [sic] the
detectives intended to stop the defendant's vehicle
before Key West and to search the vehicle. In Rosales
the Third District held that the inevitable discovery
doctrine would apply if the detectives had probable cause
to arrest the defendant prior to an illegal traffic stop.
Rosales, at 501.
It is not possible to articulate precisely what
"probable cause" or "reasonable suspicion” mean. They
are common sense, nontechnical conceptions that deal with
“the factual and practical considerations of everyday
life on which reasonable and prudent men, not legal
technicians act.”
League v. State, 778 So. 2d 1086,
1087, citing Ornelas v. United States, 517 U.S. 690, 116
S. Ct. 1657 (1996). Probable cause to arrest or search
exist when the totality of the facts and circumstances
within the officer’s knowledge sufficiently warrant a
reasonable person to believe that, more likely than not,
a crime had been committed. See Curtis v. State, 748 So.
2d 370, 374 (Fla. 4th DCA 2000).
In the case at bar, the reliability of the CI is not
at issue because he was wired for sound and the
investigators heard the CI’s conversations with the
Defendant which were translated from Spanish to English
in real time.
In these conversations, the Defendant
agreed to sell a half of kilo of heroin to the CI and
said that he had brought the heroin from Miami and that
the heroin was in his possession.
But for the
disagreement regarding the location of the sale, the
Defendant was ready to consummate the sale to the CI.
Thereafter, the Defendant said he was taking the heroin
that night back to Miami and he threatened the CI if
anyone interfered with his return to Miami with the
heroin. While under constant surveillance, the Defendant
-26-
was later observed placing a package in the rear of his
vehicle and driving the vehicle east on I-75 toward
Miami. Based upon these unrefuted facts, the Court finds
that the narcotics investigators had sufficient reliable
facts to form a reasonable belief that the Defendant was
transporting heroin in his vehicle to Miami at the time
of the traffic stop. Accordingly, the Court finds that
there was probable cause to arrest the Defendant and
search his vehicle before the traffic stop. The Defendant
argues that the inevitable discovery doctrine does not
apply because the Court would have to speculate as [sic]
what the officers would have done had the traffic stop
and subsequent search not occurred.
See State v.
Duggins, Supra at 568; Ruffin v. State, Supra at 208.
Speculation may not play a part in the inevitable
discovery doctrine as the focus must be on demonstrated
verifiable facts. Bowen v. State, 685 So. 2d 942, 944
(Fla. 5th DCA 1996). However, even if the officers did
not make any further investigation, they already
possessed sufficient facts to establish probable cause.
The Court finds that the inevitable discovery doctrine
applies to this case.
In conclusion, the Court finds that there was
probable cause to arrest the defendant and to search his
vehicle for the heroin.
Because the heroin was lawfully seized from the
Defendant's vehicle, the arrest of the Defendant for
possession of heroin was also lawful, and any subsequent
statements made by the Defendant to the passenger of his
vehicle, which were recorded while the Defendant was
under arrest in the patrol car, are also admissible.
Exh. 4.
Petitioner has a Sixth Amendment right to effective assistance
of counsel both at trial and on direct appeal.
Evitts v. Lucey,
469 U.S. 387, 396-97 (1985); Smith v. Robbins, 528 U.S. 259, 278
(2000).
“is
In reviewing appellate counsel’s performance, the Court
mindful
the
Sixth
Amendment
does
not
require
appellate
advocates to raise every non-frivolous issue. Rather, an effective
-27-
attorney will weed out weaker arguments, even though they may have
merit.”
Philmore v. McNeil, 575 F.3d 1251, 1265 (11th Cir.
2009)(internal quotations and citations omitted).
After
conducting
a
pre-trial
hearing
at
which
officers
testified and the trial court viewed the video tape of the stop,
the trial court denied Petitioner’s Motion and relied on a Florida
case that cited Whren v. United States, 517 U.S. 806 (1996) to find
that the police officers had probable cause to stop Petitioner’s
vehicle based on his speeding infraction.
of motion to suppress hearing).
See Exh. 3 (transcript
Petitioner takes issue with the
police officer’s subjective intent for the stop.9
Reply at 3.
The
United States Supreme Court has, however, dismissed “the idea that
an ulterior motive might serve to strip the agents of their legal
justification.”
Whren, 517 U.S. at 812.
In the alternative, the trial court denied Petitioner’s Motion
finding that the evidence obtained from the stop and search of
In an abundance of caution, the Court notes that in
Petitioner’s Reply, he raises new claims for the first time
concerning a Brady violation. Reply at 2-5. These claims are in
fact new claims and are not additional details concerning another
claim already raised. Clisby v. Jones, 960 F.2d 925, 936 (1992).
Petitioner intermixes claims of this alleged Brady violation with
a claim that the trial court erred in denying his motion to
suppress. These claims are neither raised in the Petition, nor
were they exhausted before the State courts. Therefore, the Court
will not address these extraneous claims because they were not
raised in the Petition. Even if the claims were raised in the
Petition, the claims would now be procedurally-barred based on
Petitioner’s failure to exhaust the claims before the State court.
9
-28-
Petitioner’s vehicle was admissible under the inevitable discovery
doctrine because police had planned to stop the vehicle before the
vehicle entered Broward County based on information obtained from
a CI wearing a wire during an attempted drug deal with the
Petitioner.
Although the trial court cited to only Florida cases
in its order of denial, the
cases were not contrary to or an
unreasonable application of federal law.
See Nix v. Williams, 467
U.S. 431 (1984)(setting forth inevitable discovery exception to the
exclusionary rule).
Based upon the foregoing, the Court finds that the State
appellate
court’s
decision
to
deny
Petitioner’s
State
habeas
petition was not contrary to clearly established federal law, and
was not an unreasonable application of clearly established federal
law, and was not based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceedings.
Significantly, Petitioner can neither show deficient
performance,
nor
prejudice
stemming
from
appellate
counsel’s
failure to raise the claim regarding the denial of his motion to
suppress. Appellate counsel cannot be faulted for failing to raise
a meritless issue.
Philmore, 575 F.3d at 1264-65.
Consequently,
the Court finds that the State courts’ decisions were neither
contrary to nor an unreasonable application of federal precedent
set forth by the United States Supreme Court.
Also, the decisions
were not an unreasonable determination of the facts in light of the
-29-
evidence.
Thus, Ground One is denied in its entirety as without
merit.
B.
Ground Two
Petitioner argues that the post-conviction court’s denial of
his first post-conviction motion filed under Fla. R. Crim. P. 3.850
as “legally insufficient” violated his “due process rights under
the Equal Protection Clause” because he was not permitted leave to
amend, and his subsequent Rule 3.850 motions were denied as
successive.
Petition at 4, 9.
In Response, Respondent submits that the claim does not raise
an issue of federal constitutional magnitude.
Response at 24.
Respondent states that the “federal habeas courts sit to ensure
that
individuals
are
not
imprisoned
in
Constitution, not to correct errors of fact.”
Herrera v. Collins, 506 U.S. 390, 400 (1993).
violation
of
the
Id. at 25 (citing
The Court agrees.
There is no federal constitutional requirement that the states
provide a means of post-conviction review of state convictions,
thus an infirmity in a state post-conviction proceeding does not
raise
a
petition.
constitutional
issue
cognizable
in
a
federal
habeas
Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir.
1986)(claim that post-conviction court erred by not holding a
hearing or attaching portions of the record to the order failed to
state a cognizable habeas corpus claim); see also Perry v. McNeil,
Case No. 09-14200-CIV, 2009 WL 2252240 (S.D. Fla. July 28, 2009)
-30-
(citations omitted);
Mooris v. Cain, 186 F.3d 581 (5th Cir.
1999)(noting that circuit precedent is abundantly clear that errors
in
state
post-conviction
proceedings
will
not,
in
and
of
themselves, entitle a petitioner to federal habeas relief); Hassine
v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998)(citing Williams v.
Missouri, 640 F.2d 140, 143 (8th Cir.), cert. denied, 451 U.S. 990
(1981) (holding that state court’s failure to conduct hearing on
inmates post-conviction motion and failure to attach relevant
portions
of
record
did
not
undermine
validity
of
inmate’s
conviction and, therefore, did not state basis for habeas relief);
Williams-Bey v. Trickey 894 F.2d 314, 317 (8th Cir. 1990)(stating
that “Section 2254 only authorizes federal courts to review the
constitutionality of a state criminal conviction, not infirmaries
in a state post-conviction proceeding”), cert. denied, 495 U.S. 936
(1990)).
But see Dickerson v. Walsh, 750 F.2d 150, 152-53 (1st
Cir. 1984).
Thus, the Court finds that Petitioner’s claim goes to
issues unrelated to the cause of petitioner’s detention and it does
not state a basis for habeas relief.
Moreover, the record refutes Petitioner’s contentions that the
post-conviction court did not permit him to amend his initial Rule
3.850 Motion.
The record shows that the post-conviction court,
specifically Circuit Judge Hardt, reviewed Petitioner’s second Rule
3.850 Motion, which included a copy of his initial Motion and a
supporting memorandum of law filed by counsel.
-31-
Judge Hardt’s
denial of Petitioner’s third Rule 3.850 Motion mentions the fact
that the post-conviction court did review Petitioner’s second Rule
3.850 Motion, which was denied as successive because it failed to
correct the deficiencies of the original motion.
1.
See Exh. 26 at6
Thus, Petitioner’s assertions that he was not permitted leave
to file an Amended Rule 3.850 Motion in violation of State law is
not entirely accurate.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Florida Attorney General is dismissed from this
action.
2.
The Clerk of Court shall strike Petitioner’s improperly
filed reply (Doc. #22) to the Respondent’s response in opposition
to Petitioner’s Motion to Expand the Record.
3.
Petitioner’s motion to expand the record and for an
evidentiary hearing (Doc. #19) is DENIED.
4.
The Petition for Writ of Habeas Corpus (Doc. #1) is
DENIED for the reasons set forth herein.
5.
The Clerk of Court shall enter judgment accordingly;
terminate any pending motions; and, close this file.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability.
A prisoner seeking to appeal a
-32-
district court's final order denying his petition for writ of
habeas corpus has no absolute entitlement to appeal but must obtain
a certificate of appealability ("COA").
Harbison v. Bell, 556 U.S.
28 U.S.C. § 2253(c)(1);
180, 129 S. Ct. 1481, 1485 (2009).
“A
[COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.”
2253(c)(2).
28 U.S.C. §
To make such a showing, petitioner “must demonstrate
that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004) or, that “the issues presented
were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Petitioner has
not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Fort Myers, Florida, on this 9th day of
November, 2011.
SA: alj
Copies: All Parties of Record
-33-
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