Bilal v. Florida State Attorney General et al

Filing 21

OPINION AND ORDER dismissing 1 Petition for writ of habeas corpus; noting but denying 18 Objections; denying 10 Motion for preliminary injunction. 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 1/14/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMAAL ALI BILAL,
Petitioner,
v.

Case No: 2:14-cv-592-FtM-29MRM

FLORIDA
GENERAL
FLORIDA,

STATE
ATTORNEY
and
STATE
OF
Respondents. 1
OPINION AND ORDER
I.

Petitioner Jamaal Ali Bilal, a resident at the Florida Civil
Commitment Center (“FCCC”) who is civilly detained under the

1

Rule 2(a) of the Rules Governing Section 2254 Cases in
United States District Courts (hereinafter the ARules@) provides
that applicants in Apresent custody@ seeking habeas relief should
name Athe state officer having custody of the applicant as
respondent.@
The Supreme Court has made clear that there Ais
generally only one proper respondent to a given prisoner=s habeas
petition.@ Rumsfield v. Padilla, 542 U.S. 426, 435 (2004). This
is A>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
Athe 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 this case considering the conviction and sentence
Petitioner challenges, the Attorney General for Florida responded
to the Petition. See docket. The State of Florida is dismissed.

Sexually Violent Predators Act, initiated this action by filing a
Petition for Writ of Habeas Corpus (Doc. #1, Petition) on October
14, 2014. 2

The Petition challenges Bilal’s plea-based conviction

for practicing law without a license entered on March 23, 2012 in
the circuit court located in Desoto County, Florida.
Pursuant to the Court’s Order, Respondent filed a “Limited
Response”

to

the

Petition

(Doc.

#8,

Response)

supporting exhibits (Doc. #8-1, Exhs. 1-9).

and

attached

Respondent argues

that the Court lacks jurisdiction to consider the Petition because
Bilal is no longer “in custody” on the practicing law without a

2

By way of background, the Involuntary Civil Commitment of
Sexually Violent Predators= Treatment and Care Act (hereinafter
ASVP Act@) is located at Fla. Stat. '' 394.910-394.913. The State
of Florida enacted the SVP Act by which a person determined to be
a sexually violent predator is required to be housed in a secure
facility Afor control, care, and treatment until such time as the
person=s mental abnormality or personality disorder has so changed
that it is safe for the person to be at large.@
Fla. Stat. '
394.917(2). The SVP Act was promulgated for the dual purpose Aof
providing mental health treatment to sexually violent predators
and protecting the public from these individuals.@ Westerheide v.
State, 831 So. 2d 93, 112 (Fla. 2002).
See also Kansas v.
Hendricks, 521 U.S. 346 (1997) (holding that the Kansas Sexually
Violent Predator Act did not establish criminal proceedings, and
involuntary confinement pursuant to the Act was not punitive).
Thus, involuntary commitment of sexually violent predators under
the SVP Act is accomplished by a civil, rather than a criminal,
proceeding. In its statement of Afindings and intent,@ the State
legislature said that the SVP Act was aimed at Aa small but
extremely dangerous number of sexually violent predators . . . who
do not have a mental disease or defect that renders them
appropriate for involuntary treatment under the Baker Act ('
394.451- ' 394.4789, Fla. Stat.).@ Fla. Stat. ' 394.910.

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license conviction. 3
Reply).

Bilal filed a “Limited Reply” (Doc. #11,

This matter is ripe for review.
II.

Petitioner

Bilal

was

charged

with

three

counts

of

unauthorized practice of law stemming from incidents that occurred
between March 21 and April 6, 2010, while Petitioner was civilly
detained at the FCCC as a sexually violent predator. 4

Response at

3

The pertinent facts pertaining to Petitioner’s detainment
under the Sexually Violent Predators Act are taken from the
Response.
Sometime during 1982, Bilal was convicted of sexual
battery, among other things, in case no. 82-3171. Response at 1.
He was released from prison in 1999. Id. On September 13, 2001,
Petitioner was adjudicated a sexually violent predator in Escambia
County in case number 99-1507 and committed to the custody of the
Florida Department of Children and Families for treatment. Id. at
2. Petitioner did not appeal. Id. Petitioner challenged the civil
commitment in a federal habeas action filed in the Northern
District of Florida in case number 3:02-cv-362-LC-MD, which was
denied. Id.
4

The information charged the following three counts:
Count 1: on or about the dated of and between March 21, 2010
through April 6, 2010 in the County and State aforesaid, did
unlawfully engage in the practice of law in the State of Florid
and while not being licensed or otherwise authorized to practice
law in Florida specifically regarding his client, JOSEPH W.
FINFROCK, in DeSoto County felony cases of 09-CF-397, contrary to
Florida Statue 454.23, in such case made, and provided against the
peace and dignity of the State of Florida.
Count 2: on or about the dated of and between March 21, 2010
and April 6, 2010 in the County and State aforesaid, did unlawfully
engage in the practice of law in the State of Florid and while not
being licensed or otherwise authorized to practice law in Florida
specifically regarding his client, TARIMMUS DEMANTAS MAXWELL, in
DeSoto County felony cases of 09-CF-397, contrary to Florida Statue

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3

(citing

Exh.

Petitioner,

1).

The

represented

by

first

count

counsel,

was

entered

nolle
a

prosequii.

negotiated

no

contest plea to the remaining counts with the understanding that
he would be sentenced to 365 days in jail, with credit for 365
days of time already served.
accordance

with

the

plea

Response at 3 (citing Exh. 3).
agreement,

the

court

Petitioner guilty and sentenced him to time served.

In

adjudicated
Id. (Exh. 4).

Petitioner was then returned to the general population at the
FCCC. Response at 3.
withdraw the plea.

Subsequently, Petitioner filed a motion to
Response at 3 (citing Exh. 5).

court dismissed the motion.
Petitioner
Response

at

directly
3.

Response at 3 (citing Exh. 6).

appealed

Appellate

his
counsel

Response at 3 (citing Exh. 7).
initial brief.

The state

conviction
filed

an

and

sentence.

Anders

5

brief.

Petitioner filed a post-Anders

Response at 3 (citing Exh. 8).

On March 21, 2014,

454.23, in such case made, and provided against the peace and
dignity of the State of Florida.
Count 3: on or about the dated of and between March 21, 2010
and April 6, 2010 in the County and State aforesaid, did unlawfully
engage in the practice of law in the State of Florid and while not
being licensed or otherwise authorized to practice law in Florida
specifically regarding his client, “JAMES DEWERCS” AKA DET. PAUL
TIERNEY, in DeSoto County felony cases of 09-CF-397, contrary to
Florida Statue 454.23, in such case made, and provided against the
peace and dignity of the State of Florida.
5

Anders v. California, 386 U.S. 738 (1967).

- 4 -

the appellate court per curiam affirmed Petitioner’s conviction
and sentence.

Response at 3 (citing Exh. 9).

Petitioner then initiated the instant action raising the
following two grounds for relief: (1) the court lacked subject
matter jurisdiction because the Ryce Act does not allow him to be
charged with practicing law without a license; and (2) he was
convicted of a non-existent crime because writing a letter to an
inmate is not a crime.

Petition at 5, 7.

As relief, Petitioner

requests that the Court: “a) vacate and expunge all counts of PLWL
charges; b) issue declaratory judgment that arrest and conviction
was

illegal;

c)

issue

an

injunction

prohibiting

FCCC

from

criminally charging any resident of a crime that is not one of the
charging crimes enumerated by the Florida legislature.”

Id. at

15.
III.
Initially, this Court must address whether Petitioner was “in
custody” for purposes of 28 U.S.C. § 2254 when he filed the instant
Petition

because

jurisdiction.

the

question

is

one

of

subject

matter

Howard v. Warden, 776 F.3d 772, 775 (11th Cir.

2015) (citing Maleng v. Cook, 490 U.S. 488, 490 (1989)).

A § 2254

petitioner must show that at the time he filed the petition, he
was “in custody pursuant to the judgment of a State court.”
U.S.C.

§

2254(a).

The

Eleventh

- 5 -

Circuit

has

construed

28
this

requirement “very liberally,” Howard, 776 F.3d at 775 (citation
omitted), and it is well settled that the “use of habeas corpus
[is] not . . . restricted to situations in which the applicant is
in actual, physical custody.” Id. (citing Jones v. Cunningham, 371
U.S.

236,

permitted

239

(1963)).

habeas

For

review

to

example,

the

petitioners

Supreme

released

Court
on

has

parole,

released on their own recognizance pending execution of a sentence,
and free on bail.

Id.

The key factor in determining whether a petitioner is “in
custody” is whether the state exercises some control over the
petitioner

relating

to

the

conviction

challenges in the habeas action.

the

petitioner

now

Id. at 775-776 (emphasis added).

The Eleventh Circuit, taking guidance from the Seventh Circuit,
explained,

“[a]lthough

the

word

‘custody’

is

elastic,

all

definitions of it incorporate some concept of ongoing control,
restraint,

or

reasonability

of

the

custodian.”

Id.

at

776

(quoting Samirah v. O’Connell, 335 F.3d 545, 549 (7th Cir. 2003);
see also Cook, 490 U.S. at 492, 109 S. Ct. at 1926 (“While we have
very liberally construed the ‘in custody’ requirement for purposes
of federal habeas, we have never extended it to a situation where
a

habeas

petitioner

suffers

no

conviction.”)).

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present

restring

from

a

Here, Petitioner is civilly detained at the FCCC on charges
entirely unrelated to his plea-based practicing law without a
license conviction for which he was sentenced to time served.
supra at 3, n.3.

See

Because Petitioner is not serving a sentence for

his practicing law without a license conviction, he cannot bring
a

federal

habeas

action

directed

solely

at

that

conviction.

Lackawanna County Dist. Attorney v. Coss, 532 U.S. at 394, 404
(2001).

Nor does Petitioner claim the practicing law without a

license for which he was sentenced to time-served in any way
enhanced his civil commitment.
Further, the Court notes that Petitioner entered a no contest
plea to the charge of practicing law without a license.

A federal

habeas court reviews a state court guilty plea only for compliance
with federal constitutional protections.

A plea of no contest has

the same legal effect in a criminal proceeding as a guilty plea.
Carter v. Gladish, Case No. 8:03-cv-1194-T-17TBM, 2005 WL 1712263
*9 (M.D. Fla. 2005) (noting under Florida law a plea of no contest
has the same legal effect in a criminal proceeding as a guilty
plea).

AA reviewing federal court may set aside a state court

guilty plea only for failure to satisfy due process: >If a defendant
understands the charges against him, understands the consequences
of a guilty plea, and voluntarily chooses to plead guilty, without
being coerced to do so, the guilty plea . . . will be upheld on

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federal review.=@ Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir.
1991)(other citations omitted).

For a guilty plea to be entered

knowingly and intelligently, "'the defendant must have not only
the mental competence to understand and appreciate the nature and
consequences of his plea but he also must be reasonably informed
of the nature of the charges against him, the factual basis
underlying those charges, and the legal options and alternative
that are available.'"

Finch v. Vaughn, 67 F.3d 909, 914 (11th

Cir. 1995) (citations omitted) (emphasis in original).
The record supports the finding that Petitioner knowingly,
intelligently, and voluntarily entered his no contest plea.

See

Exh. 1 at 30-33. The transcript from the plea hearing shows that
Petitioner was present when counsel told the Court that Petitioner
was entering the plea.

Id. Petitioner stated under oath that he

discussed the case with his attorney, his lawyer explained all of
his rights to him with respect to the plea, and he understood what
his sentence would be if he plead no contest to the charges even
prior to the plea colloquy.

Id.

Petitioner stated that he was

not forced or threatened to enter the plea, and that he read his
plea form.

Id.

The instant Petition does not challenge whether

Petitioner’s plea was knowingly, intelligently, and voluntarily
entered.

Instead, Petitioner continues to attack the validity of

the charges itself, which he plead to.

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ACCORDINGLY, it is hereby
ORDERED:
1.

The Petition for Writ of Habeas Corpus (Doc. #1) is

DISMISSED.
2.

Petitioner’s

motion

for

preliminary

injunction,

restraining order motion to compel (Doc. #10) is DENIED.
3.

Petitioner’s objections to the Magistrate Judge’s Order

(Doc. #18) are duly noted, but nevertheless DENIED.
4.

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
A 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 on either petition.

A prisoner

seeking to appeal a 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”).

28

U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 184 (2009).
“A [COA] may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).
demonstrate
court’s

that

assessment

To make such a showing, Petitioner “must

reasonable
of

28

the

jurists

would

constitutional

- 9 -

find
claims

the

district

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

(2003)(citations
Petitioner

and

has

circumstances.

not

v.

Cockrell,

internal
made

the

537

quotation
requisite

U.S.

322,

marks
showing

335-36

omitted).
in

these

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
of January, 2016.

SA: ftmp-1
Copies: All Parties of Record

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14th

day