Brooke v. Crews et al
Filing
14
OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; dismissing Claim Two of 1 Petition for writ of habeas corpus, and alternatively denying; denying all other claims. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 8/4/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARK STEVEN BROOKE,
Petitioner,
v.
Case No: 2:13-cv-895-FtM-29CM
MICHAEL
D.
CREWS
and
ATTORNEY GENERAL OF FLORIDA,
Pamela Jo Bondi,
Respondents. 1
OPINION AND ORDER
This matter comes before the Court upon a petition for habeas
corpus relief filed pursuant to 28 U.S.C. § 2254 by Mark Steven
Brooke (“Petitioner”) who is presently confined at the Moore Haven
Correctional Institution in Moore Haven, Florida (Doc. 1, filed
December 30, 2013).
convictions
and
Petitioner, proceeding pro se, attacks the
sentences
entered
by
the
Twentieth
Judicial
Circuit Court in Lee County, Florida for violation of probation.
Id.
Respondent
filed
a
response
to
the
petition
(Doc.
9).
Petitioner did not file a reply.
1
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.” Rumsfeld v.
Padilla, 542 U.S. 426, 436 (2004) (citations omitted).
In
Florida, the proper respondent in this action is the Secretary of
the Florida Department of Corrections. Therefore, the Florida
Attorney General will be dismissed from this action.
Petitioner raises four claims in his petition. Because the
Court concludes that each claim must be dismissed or denied, an
evidentiary hearing is not warranted.
See Schriro v. Landrigan,
550 U.S. 465, 474 (2007) (if the record refutes the factual
allegations in the petition or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing).
I.
Background and Procedural History
On
November
29,
2000,
Petitioner
pleaded
guilty
to
DUI
manslaughter (count one), DUI with serious bodily injury (count
two), and three counts of DUI with damage to person or property
(counts three through five) (Ex. 1 at 40-44).
He was sentenced
in accordance with a plea agreement to ten years in prison followed
by five years of probation on count one and to a consecutive term
of five years of probation on count two (Ex. 1 at 36-37).
He
received concurrent sentences of one year in prison on counts three
through five. Id.
Florida’s Second District Court of Appeal
affirmed Petitioner's convictions, but remanded for a corrected
probation
order
consistent
with
a
prior
trial
court
order
correcting a sentencing error (Ex. 5); Brooke v. State, 807 So. 2d
777 (Fla. 2d DCA 2002).
On
March
9,
2010,
an
affidavit
was
filed
alleging
that
Petitioner had violated the terms of his probation (Ex. 7 at 3439).
A revocation hearing was held (Ex. 7A). After the hearing,
the state court found that Petitioner had violated the terms of
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his probation and revoked the order of probation.
sentenced
to
258
months
in
prison
previously served. Id at 52-81, 101.
February
7,
2011,
the
trial
court
with
credit
Petitioner was
for
all
time
In an order rendered on
entered
an
amended
order
correcting the conditions of probation Petitioner was alleged to
have violated (Ex. 7C at 230). Florida’s Second District Court of
Appeal per curiam affirmed Petitioner's judgment and sentence (Ex.
10); Brooke v. State, 93 So. 3d 1022 (Fla. 2d DCA 2011).
On April 2, 2012 Petitioner filed a motion for post-conviction
relief pursuant to Rule 3.850 of the Florida Rules of Criminal
Procedure (“Rule 3.850 motion”) (Ex. 12).
The post-conviction
courts denied all claims in a detailed order (Ex. 15).
Florida’s
Second District Court of Appeal per curiam affirmed (Ex. 18).
Petitioner signed the instant petition on December 28, 2013
(Doc. 1).
II.
Governing Legal Principles
A.
Standard of Review Under the Antiterrorism Effective
Death Penalty Act (“AEDPA”)
Pursuant to the AEDPA, federal 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
- 3 -
(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).
to meet.
This standard is both mandatory and difficult
White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
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.
Notably, a state court’s violation of state law is not
sufficient to show that a petitioner is in custody in violation of
the “Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“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
issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin,
549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362,
412 (2000)).
That said, the Supreme Court has also explained that
“the lack of a Supreme Court decision on nearly identical facts
does not by itself mean that there is no clearly established
federal law, since ‘a general standard’ from [the Supreme Court’s]
cases can supply such law.” Marshall v. Rodgers, 133 S. Ct. 1446,
1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).
State courts “must reasonably apply the rules ‘squarely
- 4 -
established’ by [the Supreme] Court’s holdings to the facts of
each
case.
White,
134
S.
Ct.
at
1706
(quoting
Knowles
v.
Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point,
habeas relief is only appropriate if the state court decision was
“contrary to, or an unreasonable application of,” that federal
law. 29 U.S.C. § 2254(d)(1).
A decision is “contrary to” clearly
established federal law if the state court either: (1) applied a
rule that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme Court
when faced with materially indistinguishable facts. Ward v. Hall,
592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540
U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application”
of 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 v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court
either unreasonably extends a legal principle from [Supreme Court]
precedent
to
a
new
context
where
it
should
not
apply
or
unreasonably refuses to extend that principle to a new context
where
it
should
apply.”
Bottoson,
Williams, 529 U.S. at 406).
234
F.3d
at
531
(quoting
The petitioner must show that the
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state court's ruling was “so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” White, 134 S.
Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)).
Moreover,
“it
is
not
an
unreasonable
application
of
clearly
established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by [the
Supreme] Court.” Knowles, 556 U.S. at 122.
Finally, when reviewing a claim under § 2254(d), a federal
court must bear in mind that any “determination of a factual issue
made by a State court shall be presumed to be correct[,]” and the
petitioner bears “the burden of rebutting the presumption of
correctness
by
clear
and
convincing
evidence.”
28
U.S.C.
§
2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A] statecourt factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in
the first instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293
(2010)).
B.
Standard for Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a
two-part
test
entitled
to
for
relief
determining
on
the
whether
ground
that
a
convicted
his
counsel
ineffective assistance. 466 U.S. 668, 687-88 (1984).
person
is
rendered
A petitioner
must establish that counsel’s performance was deficient and fell
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below
an
objective
standard
of
reasonableness
and
deficient performance prejudiced the defense. Id.
that
the
This is a
“doubly deferential” standard of review that gives both the state
court and the petitioner’s attorney the benefit of the doubt.
Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 131 S. Ct.
1388, 1403 (2011)).
The focus of inquiry under Strickland's performance prong is
“reasonableness under prevailing professional norms.” Strickland,
466 U.S. at 688-89.
In reviewing counsel's performance, a court
must adhere to a strong presumption that “counsel’s conduct falls
within the wide range of reasonable professional assistance.”
at 689.
Id.
Indeed, the petitioner 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).
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,” applying a “highly deferential” level of
judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(quoting Strickland, 466 U.S. at 690).
As
to
the
prejudice
prong
of
the
Strickland
standard,
Petitioner’s burden to demonstrate prejudice is high. Wellington
v.
Moore,
314
F.3d
1256,
1260
(11th
Cir.
2002).
Prejudice
“requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
- 7 -
reliable.” Strickland, 466 U.S. at 687.
That is, “[t]he defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
is
“a
probability
sufficient
to
A reasonable probability
undermine
confidence
in
the
outcome.” Strickland, 466 U.S. at 694.
C.
Exhaustion and Procedural Default
The
AEDPA
precludes
federal
courts,
absent
exceptional
circumstances, from granting habeas relief unless a petitioner has
exhausted
all
means
of
available
relief
under
state
law.
Exhaustion of state remedies requires that the state prisoner
“fairly presen[t] federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights[.]” Duncan v. Henry,
513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270,
275-76 (1971)).
The petitioner must apprise the state court of
the federal constitutional issue, not just the underlying facts of
the claim or a similar state law claim.
Snowden v. Singletary,
135 F.3d 732 (11th Cir. 1998).
In
addition,
a
federal
habeas
court
is
precluded
from
considering claims that are not exhausted and would clearly be
barred if returned to state court. Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991) (if a petitioner has failed to exhaust state
remedies and the state court to which the petitioner would be
- 8 -
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred, there
is a procedural default for federal habeas purposes regardless of
the decision of the last state court to which the petitioner
actually presented his claims).
Finally, a federal court must dismiss those claims or portions
of
claims
that
have
been
denied
on
adequate
and
independent
procedural grounds under state law. Coleman, 501 U.S. at 750.
If
a petitioner attempts to raise a claim in a manner not permitted
by state procedural rules, he is barred from pursuing the same
claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th
Cir. 1994).
A petitioner can avoid the application of procedural default
by establishing objective cause for failing to properly raise the
claim
in
state
court
and
actual
prejudice
from
the
alleged
constitutional violation. Spencer v. Sec' y, Dep't of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010). To show cause, a petitioner
“must demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in state
court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999);
Murray v. Carrier, 477 U.S. 478 (1986).
To show prejudice, a
petitioner must demonstrate there is a reasonable probability the
outcome of the proceeding would have been different. Crawford v.
Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).
- 9 -
A second exception, known as the fundamental miscarriage of
justice,
only
occurs
in
an
extraordinary
case,
where
a
“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]”
478, 479-80 (1986).
Actual innocence means factual innocence, not
legal insufficiency.
(1998).
Murray v. Carrier, 477 U.S.
Bousley v. United States, 523 U.S. 614, 623
To meet this standard, a petitioner must “show that it
is more likely than not that no reasonable juror would have
convicted him” of the underlying offense. Schlup v. Delo, 513 U.S.
298, 327 (1995).
“To be credible, a claim of actual innocence
must be based on [new] reliable evidence not presented at trial.”
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,
513 U.S. at 324).
III. Analysis
A.
Claim One
Petitioner asserts that counsel was ineffective for failing
to adequately argue that the behavior leading to his disorderly
intoxication charge could have been caused by a medical condition
(Doc. 1 at 3).
petition.
The
Petitioner raised this claim in his Rule 3.850
post-conviction
court
summarized
the
testimony
presented at his revocation hearing and dismissed the claim as
unsupported by the record:
Defendant alleges that counsel was ineffective
by failing to “correctly argue Defendant's
reasonable
hypothesis
of
innocence.”
- 10 -
Specifically, Defendant claims that counsel
failed to present evidence of his diabetes,
seizures, and brain trauma as a defense to the
disorderly intoxication charge.
Defendant
claims that he had just suffered a grand mal
seizure when he was found by the Lee County
police officer, and that what she observed as
indicators of severe intoxication were in fact
symptoms
of
a
diabetic-related
seizure.
Defendant acknowledges that trial counsel “was
trying to develop [these] issues,” but argues
that “[c]ounsel never stood up and argued that
Defendant had a diabetic seizure and his
bizarre behavior was a direct result of the
seizure.”
He further claims that he was
available to testify at the VOP, did in fact
testify, but that “[c]ounsel never asked the
right questions!”
Defendant concludes that
the outcome of the proceedings would have been
different had counsel “properly raised . . .
and properly argued this reasonable hypothesis
of innocence.”
The record reflects that a concerned citizen
alerted a Fort Myers police officer about a
man who may have been in need of assistance of
some kind.
When the officer went to the
location
indicated,
she
found
Defendant
sitting on the sidewalk, unresponsive.
She
testified at the VOP hearing that she observed
that Defendant smelled of alcohol, had red,
watery, bloodshot eyes, and slurred speech.
She called for medical assistance and an EMT
arrived.
The EMT also testified that
Defendant smelled of alcohol. The EMT tried
to conduct a medical assessment of Defendant,
but Defendant has uncooperative, belligerent,
and spat on the EMT.
On cross examination, defendant counsel asked
the officer if she had experience in dealing
with people who had diabetes and traumatic
brain damage.
She answered that she had
received training in dealing with people with
diabetes and was aware of the signs that
accompany the illness such as “the smell from
the breath and some of the body behaviors.”
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She also testified that she had encountered
people who had had traumatic brain damage over
the course of her career.
On direct
examination, the State asked the EMT if he had
any training dealing with people who had
diabetes, to which he answered “yes.” On
cross-examination, defense counsel asked the
EMT if he had experience in dealing with
people who had traumatic brain damage.
The
EMT replied that he was trained primarily on
acute brain trauma and that he had “not had
the experience of dealing with someone . . .
[with a] post traumatic brain injury.”
Counsel also called Defendant's mother to
testify to Defendant's conditions.
Her
testimony
revealed
that
Defendant
was
“extremely diabetic” and that he had suffered
“some brain damage from two different times,”
once in high school and once just within the
year prior to the VOP hearing.
The most
recent trauma was the result of a seizure.
She also testified that after a seizure, it
was
common
for
Defendant
to
be
“very
disoriented . . . be very scared or very
aggressive at different times.”
The record
also reflects that Defendant testified that he
had a seizure two days after he was
incarcerated.
At the conclusion of the
hearing, the trial court addressed Defendant,
saying “I realize that you may have some
medical issues, but I also realize that you
had have a massive problem with alcohol and
that resulted in someone dying sometime. And
apparently that’s made such an impression on
you that you continue to drink in excess.”
Having reviewed all of the above, it appears
that counsel did argue Defendant's
medical
conditions as a defense, presented evidence to
that effect, and that the trial court noted
the medical conditions when it expressly found
a willful and substantial probation violation.
As to Defendant's claim that counsel did not
directly argue that Defendant's behavior was
the result of a diabetes-related seizure, or
question Defendant in such a manner as to have
Defendant state that he had had a diabetes-
- 12 -
related seizure, even if counsel had been
ineffective, Defendant cannot show prejudice
as the record conclusively reflects that
Defendant's
medical
conditions
were
discussed, considered by the court, and
rejected as a defense.
(Ex. 15 at 2-4) (citations to the record omitted).
Florida’s
Second District Court of Appeal per curiam affirmed (Ex. 18).
review
of
the
record
supports
the
post-conviction
A
court’s
conclusions.
The transcript of Petitioner's revocation hearing indicates
that the crux of the defense was that Petitioner suffered from
diabetes and brain damage and was prone to seizures which could
mimic the signs of intoxication (Ex. 7A at 52-80).
Counsel
attempted to support that defense with questions to Lee County
Sheriff’s
Officer
Susan
Daily
regarding
her
experience
diabetics and people with brain injury (Ex. 7A at 63-64).
with
Officer
Daily admitted that both diabetics and those suffering from brain
damage can suffer from disorientation. Id. at 63-64.
EMT Robert
Johansson testified on direct examination that the consumption of
alcohol could adversely affect people with diabetes. Id. at 69.
On cross-examination, Johansson admitted that people who suffered
from brain damage could have increased aggressive behavior and
“uncontrollable emotional difficulty.” Id.at 70-71. Petitioner's
mother
testified
that
Petitioner
was
diabetic,
suffered
from
seizures, and had brain damage from two different injuries. Id. at
- 13 -
72.
She testified that after he suffered a seizure, Petitioner
could be disoriented, scored, and very aggressive. Id.
Petitioner
testified that he suffered a seizure only two days after his
disorderly conduct arrest. Id. at 76.
Counsel set forth a reasonable defense that Petitioner's
medical conditions, not his alcohol consumption, could have caused
the behavior that led to his arrest for disorderly intoxication.
The trial court recognized Petitioner's medical conditions, but
attributed his behavior to his “massive problem with alcohol.”
(Ex. 7A at 80).
That the trial court did not believe Petitioner's
theory of defense does not render counsel’s performance deficient.
This Court has “no license to redetermine credibility of witnesses
whose demeanor has been observed by the state trial court, but not
by
them.”
Marshall
v.
Lonberger,
459
U.S.
422,
434
(1983).
Petitioner fails to satisfy either Strickland prong, and Claim One
is denied pursuant to 28 U.S.C. § 2254(d).
B.
Claim Two
Petitioner asserts that the trial court erred because he was
found to have violated probation based upon a charge that was
subsequently dismissed by the state (Doc. 1 at 9).
Petitioner
asserts that because “the criminal offense that formed the basis
of the V.O.P. was dismissed, [he] should be given a new V.O.P.
hearing, where the judge can take into consideration the dismissal
of the misdemeanor offense that is the basis for the V.O.P.” Id.
- 14 -
at 12.
Petitioner claims that the dismissal of the disorderly
intoxication charge is “newly discovered evidence” entitling him
to a new hearing. Id.
Petitioner raised this claim in his Rule 3.850 motion where
he argued, in terms of state law only, that a new revocation
hearing “would probably produce a different result.” (Ex. 12 at
19).
Respondent argues that Petitioner has not properly exhausted
this
claim
because
he
failed
to
dimension to the state court.
present
its
constitutional
Indeed, although Petitioner’s
appellate brief supported his argument with citations to Florida
case law, he did not reference any federal case or argue that the
state court violated his constitutional rights.
Petitioner's
state law arguments presented in his Rule 3.850 motion leave §
2254(b)(1)’s exhaustion requirement unsatisfied. Duncan, 513 U.S.
at 365-66.
“The exhaustion doctrine requires the petitioner to
‘fairly present’ his federal claims to the state courts in a manner
to alert them that the ruling under review violated a federal
constitutional right.” Pearson v. Sec’y, Dep’t of Corr., 273 F.
App’x 847, 849-50 (11th Cir. 2008) (citation omitted).
As part
of such a showing, the claim presented to the state courts “must
include reference to a specific federal constitutional guarantee,
as well as a statement of the facts that entitle the petitioner to
relief.” Reedman v. Thomas, 305 F. App’x 544, 545–46 (11th Cir.
2008) (internal citation omitted).
- 15 -
In raising Claim Two in the state courts, Petitioner made no
reference to his federal constitutional rights, and as a result,
he did not properly exhaust this claim. See Pearson, 273 F. App’x
at 847 (claim unexhausted when petitioner cited exclusively to
state cases, all of his substantive arguments addressed state law,
and nothing in the argument alerted the state court to a federal
due process claim).
Petitioner has not alleged that some external
factor impeded his efforts to properly raise this claim on direct
appeal. Wright, 169 F.3d at 703.
Nor has Petitioner presented
new, reliable evidence to support an actual innocence claim.
Schlup, 513 U.S. at 324.
Because it raises no properly exhausted
issue of federal law, Claim Two is dismissed.
Even had Petitioner exhausted this claim, he is not entitled
to
federal
habeas
relief.
See
28
U.S.C.
§
2254(b)(2)(“An
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.”).
To the
extent Petitioner argues entitlement to habeas relief due to the
state court’s misapplication of state law, such a claim is not
cognizable on federal habeas review. Estelle v. McGuire, 502 U.S.
62, 67 (1991) (“[I]t is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions.”).
Moreover, Petitioner fails to account for the different standards
of proof applicable in a criminal prosecution (proof beyond a
- 16 -
reasonable doubt) and a probation revocation proceeding (proof by
a preponderance of the evidence). See State v. Jenkins, 762 So. 2d
535, 536 (Fla. 4th DCA 2000) (“To meet its burden in a violation
of probation proceeding, the state need only demonstrate by a
preponderance of the evidence that the defendant committed the
subject offense.
As that is a lesser standard than is required
to prove the criminal charge, the state may still have sufficient
evidence to meet its lesser burden.”)(internal citation omitted).
The fact that the State dismissed his public intoxication charge
did not preclude the revocation court from determining that the
State proved by a preponderance of the evidence that Petitioner
violated the terms of his probation. See State v. Green, 667 So.
2d 959, 961 (Fla. 2d DCA 1996) (“It has long been the law that a
new criminal charge can result in a violation of probation even if
the defendant is acquitted of the new offense.”).
Petitioner has failed to show that the state court’s rejection
of this claim was contrary to clearly established federal law or
was based upon an unreasonable determination of the facts.
In
addition to being unexhausted, Claim Two is denied on the merits.
C.
Claim Three
Petitioner asserts that trial counsel “was ineffective for
failing to point out to the court that Petitioner was allowed to
consume alcohol.” (Doc. 1 at 16).
Petitioner asserts that he
suffered prejudice from counsel’s omission because “the judge was
- 17 -
under the impression that Petitioner was not allowed to consume
any alcohol.
The correct condition of Petitioner's probation was
that [he] could not use alcohol to excess.
Petitioner may have
been violated simply for having one drink where the judge believed
Petitioner was not allowed to drink at all.” Id.
Petitioner raised this claim in his Rule 3.850 motion where
it was denied on the ground that counsel did raise the issue at
the VOP hearing and that the trial court had determined that
Petitioner
had
used
intoxicants
to
excess
(Ex.
15
at
5-6).
Florida’s Second District Court of Appeal per curiam affirmed.
A
review of the record supports the state court’s findings.
At the VOP hearing, the court asked whether it was a condition
of Petitioner's probation not to consume any alcohol (Ex. 7A at
78).
Counsel stated that, “as far as no consumption of alcohol,
the – the order of probation was not put into evidence.
And I do
not believe the order of probation says no consumption of alcohol.”
Id. at 78-79 (emphasis added).
When the state asked the court to
sentence Petitioner to the Department of Corrections “because of
the fact that his alcohol consumption is a violation[,]” the
following exchange occurred:
COUNSEL:
I
believe
that
is
a
misrepresentation of the order of
probation. The order of probation
says he will not use intoxicants to
excess.
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STATE:
The State would submit that this is
to excess based on the testimony of
the deputy and the EMT.
COURT:
I realize that you may have some
medical issues, but I also realize
that you have a massive problem with
alcohol and that resulted in someone
dying sometime.
Any apparently
that’s made such an impression upon
you that you continue to drink in
excess.
(Ex. 7A at 80) (emphasis added).
Because the allegations raised
in Claim Three are completely refuted by the record, Petitioner
cannot satisfy either prong of the Strickland analysis.
Claim
Three is denied pursuant to 28 U.S.C. § 2254(d).
D.
Claim Four
Petitioner asserts that he cannot be sentenced on count two
of his original conviction because his original “judgment and
sentence applied to counts 1, 3, 4, and 5.” (Doc. 1 at 18).
asserts
that,
because
he
was
“never
originally
He
adjudicated,
convicted, or sentenced” on count two, he cannot be in violation
of his terms of probation on count two. Id.
Petitioner raised this claim in his Rule 3.850 petition where
the post-conviction court rejected it as completely refuted by the
record:
[Petitioner] alleges that the sentence imposed
on August 9, 2010 for Count 2 is illegal
because he was never adjudicated or sentenced
on this count in November 29, 2000. He bases
this claim on his December 7, 2000 judgment
and sentence, stating that it “applie[s] to
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counts 1, 3, 4, and 5, only.”
However the
transcript of Defendant's original sentencing
hearing, reflects that he pled guilty to Count
2 and received a sentence of 5 years of
probation on this count, consecutive to the 5
years of probation imposed in Count 1. This
is also reflected on the November 29, 2000
order of probation . . . which states that
Defendant “is hereby ordered and adjudged . .
. [to] be committed to the Department of
Corrections for a term of ten (10) years
(Count I), with credit for jail time . . .
[followed by] probation for a period of five
(5) years (Counts I and II consecutive) under
the
supervision
of
the
Department
of
Corrections.” Additionally, the plea form . .
. reflects the same.
(Ex. 15 at 6) (emphases in original) (internal citation to the
record omitted).
Florida’s Second District Court of Appeal per
curiam affirmed (Ex. 18).
Petitioner does not present clear and convincing evidence to
refute the state court’s factual finding that he pleaded guilty,
and was sentenced, on count two of the information.
To the
contrary,
court’s
ample
conclusions.
record
evidence
supports
the
state
At the plea colloquy and sentencing hearing, the
trial court stated:
In count two, DUI serious personal injury, I
adjudicate [Petitioner] to be guilty, place
[Petitioner] on five years of probation
consecutive to count one, which means you have
ten years of probation.
Same terms and
conditions as before.
- 20 -
(Ex. 1 at 36).
Petitioner's Judgment of Guilt found Petitioner
guilty on both counts one and two, and set forth the probation
portion of sentencing as follows:
It is hereby ordered and adjudged that you be
committed to the Department of Corrections for
a term of ten (10) Years (Count 1), with credit
for jail time. After you have served ten(10)
Years of the term, you shall be placed on
probation for a period of five(5) Years,
(Counts I and II consecutive) under the
supervision of the Department of Corrections,
subject to Florida law.
(Ex.
1
at
66)(emphases
in
original).
Based
on
the
record,
fairminded jurists could conclude that Petitioner was adjudicated
guilty and sentenced on count two of his indictment.
Accordingly,
Petitioner is not entitled to habeas relief on Claim Four. Loggins
v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011) (“[I]f some
fairminded jurists could agree with the state court's decision,
although others might disagree, federal habeas relief must be
denied.”).
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
- 21 -
IV.
Certificate of Appealability 2
Petitioner is not entitled to a certificate of appealability.
A
prisoner
seeking
a
writ
of
habeas
corpus
has
no
absolute
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).
Rather, a district court must first issue
a certificate of appealability (“COA”).
“A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). 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) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), 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.
Because
Petitioner
is
not
entitled
to
a
certificate
of
appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
2
Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court
must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Id. As this Court has
determined that Petitioner is not entitled to habeas corpus relief,
it must now consider whether Petitioner is entitled to a
certificate of appealability.
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1.
The Florida Attorney General is dismissed from this
action.
2.
Claim Two of the 28 U.S.C. § 2254 petition for habeas
corpus relief filed by Mark Steven Brooke (Doc. 1) is DISMISSED,
alternatively, Claim Two is DENIED. All remaining claims are
DENIED.
3.
Petitioner is DENIED a certificate of appealability.
4.
The Clerk of Court is directed to terminate any pending
motions, enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of August, 2015.
SA: OrlP-4
Copies: Mark Steven Brooke
Counsel of Record
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4th
day
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