Collins v. Secretary, Department of Corrections et al
Filing
38
ORDER denying Petition for Writ of Habeas Corpus and dismissing case with prejudice. The Clerk of the Court shall enter judgment denying the Petition and dismissing this case with prejudice and shall close this case. The Court denies a certificate of appealability. Signed by Judge Marcia Morales Howard on 8/19/2013. (AJM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
THOMAS CARL COLLINS,
Petitioner,
v.
Case No. 3:10-cv-411-J-34JBT
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
/
ORDER
I. Status
Petitioner, Thomas Carl Collins, initiated this action by
filing a petition for habeas corpus relief pursuant to 28 U.S.C.
section 2254 (Doc. No. 1; Petition). Respondents filed a motion to
dismiss the Petition arguing both that it was untimely, and that it
contained an unexhausted claim (Doc. No. 24). The Court denied the
motion without prejudice (Doc. No. 28), and Respondents then filed
a response (Doc. No. 30; Response) to the Petition.
Collins later
filed a reply (Doc. No. 32; Reply) to the Response.
Thus, the
Petition is ripe for the Court’s consideration.
II. Procedural History
The
State
of
Florida
charged
Collins
by
second
amended
information, with robbery (count one) and felony fleeing/attempting
to elude a police officer (count two).
After a jury found Collins
guilty as charged, the trial court adjudicated Collins guilty and
sentenced him to a term of twenty years imprisonment as to count
one (as a habitual violent felony offender), and five years
imprisonment
as
to
count
two,
with
the
sentences
to
run
concurrently. Collins filed a direct appeal in the First District
Court of Appeal, which affirmed the convictions per curiam on June
25, 2003.
The mandate issued on July 11, 2003.
On August 19,
2003, the state appellate court issued an order striking Collins'
July 8, 2003, pro se motion for rehearing.
On April 18, 2002, Collins filed pro se a motion to correct
sentencing error pursuant to Florida Rule of Criminal Procedure
3.800(a),1 which the trial court denied on April 26, 2002. In the
direct appeal mentioned above, Collins unsuccessfully argued in
issue four that the trial court erred in denying this motion.
On December 11, 2003, Collins filed his first motion for
postconviction
relief
pursuant
to
Florida
Rule
of
Criminal
Procedure 3.850, which the trial court denied on July 14, 2004.
Although Collins filed a notice of appeal, he later filed a notice
of voluntary dismissal on August 9, 2004.
1
Because the appellate
References to the filing date of pleadings by Collins pro se
shall be the filing date under the mailbox rule.
See Adams v.
United States, 173 F.3d 1339, 1341 (11th Cir. 1999) (under the
"mailbox rule," a pro se prisoner's motion to vacate, set aside, or
correct sentence was filed on the date that he signed, executed,
and delivered his petition to prison authorities for mailing).
2
record had not been transmitted, the notice was operative and no
appeal was taken.
Collins filed a motion to correct sentencing error pursuant to
Florida Rule of Criminal Procedure 3.800(b)on June 22, 2004.
Not
having received a ruling on that motion, on June 22, 2011, Collins
filed a Motion to Hear and Rule, requesting that the trial court
rule on his June 22, 2004, Rule 3.800(b) motion.
The trial court
denied the Motion to Hear and Rule on July 13, 2011, stating that
there was "no motion dated on or about June 22, 2004, in the court
file and no record of one having been filed."
See App. Z.
While awaiting a ruling on the Rule 3.800(b) motion,
January 6, 2005, Collins filed a second Rule 3.850 motion.
on
The
trial court denied that motion on January 20, 2005, as a successive
motion.
The state appellate court affirmed the denial per curiam
on June 6, 2005, and the mandate issued on July 5, 2005.
Collins
next filed a petition for writ of habeas corpus with the state
appellate court, which that court denied on August 3, 2005.
On July 28, 2011, Collins filed another motion to correct
sentencing error pursuant to Rule 3.800(a). The trial court denied
that motion on September 19, 2011.
The state appellate court
affirmed the denial per curiam on January 11, 2012, and the mandate
issued on February 7, 2012.
3
Collins has twice before petitioned the Court for habeas
relief; however, both cases were dismissed without prejudice.
He
filed the instant petition on May 6, 2010.
III. One-Year Limitations Period
Collins' conviction became final on September 23, 2003.
See
Chavers v. Sec'y, Fla. Dep't of Corr., 468 F.3d 1273, 1275 (11th
Cir. 2006) (holding that entry of judgment, and not the issuance of
the mandate, starts the clock running for the time to petition the
United States Supreme Court for certiorari review); Supreme Court
Rule 13.3.3.2
Therefore, Collins had one year from the date his
case became final to file the federal petition (September 23,
2004). In the present case, his petition is untimely unless he can
avail himself of one of the statutory provisions which extends or
tolls the time period.
The one-year period of limitations ran for 78 days from
September 24, 2003, until December 11, 2003, when Collins filed his
Rule 3.850 motion.
The one-year period of limitations remained
tolled until August 27, 2004, when Collins filed a notice of
voluntary dismissal.
The one-year period of limitations then ran
for 131 days from August 28, 2004, until January 6, 2005, when
2
Supreme Court Rule 13.3 states, in pertinent part, that
"[t]he time to file a petition for a writ of certiorari runs from
the date of entry of the judgment or order sought to be reviewed,
and not from the issuance date of the mandate[.]" Thus, Collins had
ninety days in which to file a petition for a writ of certiorari in
the United States Supreme Court after the appellate court entered
judgment.
4
Collins filed his second Rule 3.850 motion.
Those proceedings
concluded on July 5, 2005, when the state appellate court issued
mandate with regard to the appeal of the denial of his second Rule
3.850 motion; however, on that same day, Collins filed a petition
for writ of habeas corpus with the state appellate court.
The
state appellate court denied the petition on August 3, 2005. Thus,
if Collins’ June 22, 2004 Motion to Correct Sentencing Error did
not toll the one-year period of limitation, the period expired 158
days later on January 9, 2006.3
The parties disagree about whether Collins' June 22, 2004
Motion to Correct Sentencing Error, which was titled as being filed
pursuant
to
limitation.
Rule
3.800(b),
tolled
the
one-year
period
of
A Rule 3.800(b) motion is untimely if it is served
after service of the defendant's initial brief on direct appeal.
Paige v. State, 921 So. 2d 9, 10 (Fla. 1st DCA 2005).
would not be a tolling event.
As such, it
However, Collins contends that the
Rule 3.800 motion should be construed as a Rule 3.800(a) motion,
which can be filed at any time.
In that event, the motion would be
a tolling event.
3
The one-year period actually expired 156 days later, which
was on Saturday, January 7, 2006. Thus, the period continued to run
until the next day that was not a Saturday, Sunday, or legal
holiday. See Fed. R. Civ. P. 6(a)(1). The Court also notes that
Collins' prior federal habeas petitions did not toll the one-year
period. Duncan v. Walker, 533 U. S. 167, 181-82 (2001) (holding
that § 2244(d)(2) does not toll the limitations period during the
pendency of a prior federal habeas corpus petition)
5
The Court notes that the trial court never ruled on the June
22, 2004 Motion to Correct Sentencing Error because it found that
1) the motion was not in the court file, and 2) there was no record
of it ever being filed.
However, a copy of the Motion to Correct
Sentencing Error is in the appendix, see App. R., and it contains
a stamp from the Century Correctional Institution indicating that
the pleading was provided to the institution for mailing on June
22, 2004.
It also contains a stamp from the state trial court
reflecting a filing date of June 25, 2004.
Moreover, it contains
a certificate of service indicating that Collins mailed it to the
trial court on June 22, 2004. In addition, Collins asserted in his
Motion to Hear and Rule that the June 22, 2004 motion "was
inadvertently
filed
incorrectly
as
to
a
typographical
error
alleging Rule 3.800(b) instead of Rule 3.800(a)."
Upon review of the record, the Court determines that the June
22, 2004 motion actually sought relief under Rule 3.800(a), and
that the period during which it was pending in the state court
tolled the one-year period of limitation.
Consequently, the
instant petition is timely.
IV. Standard of Review
The Court will analyze Collins' claims under 28 U.S.C. §
2254(d).
This standard is described as follows:
As explained by the Supreme Court, the
phrase
"'clearly
established
Federal
law' . . . refers to the holdings . . . of
[the Supreme Court's] decisions as of the time
6
of
the
relevant
state-court
decision."
Williams v. Taylor, 529 U.S. 362, 412, 120
S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We
have held that to 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." Putman v. Head, 268
F.3d 1223, 1241 (11th Cir. 2003).
As regards the "unreasonable application"
prong of § 2254(d)(1), we have held as
follows:
A state court decision is an
unreasonable application of clearly
established law if the state court
unreasonably extends or fails to
extend a clearly established legal
principle to a new context.
An
application of federal law cannot be
considered
unreasonable
merely
because it is, in our judgment,
incorrect or erroneous; a state
court
decision
must
also
be
unreasonable. Questions of law and
mixed questions of law and fact are
reviewed de novo, as is the district
court's conclusion regarding the
reasonableness of the state court's
application of federal law.
Jennings v. McDonough, 490 F.3d 1230, 1236
(11th
Cir.
2007)
(quotation
marks
and
citations omitted). In sum, "a federal habeas
court making the 'unreasonable application'
inquiry should ask whether the state court's
application of clearly established federal law
was objectively unreasonable." Williams, 529
U.S. at 409, 120 S.Ct. at 1521. Finally, 28
U.S.C. § 2254(e)(1) commands that for a writ
to issue because the state court made an
"unreasonable determination of the facts," the
petitioner must rebut "the presumption of
correctness [of a state court's factual
7
findings] by clear and convincing evidence."[4]
28 U.S.C. § 2254(e)(1).
Ward v. Hall, 592 F.3d 1144, 1155-56 (11th Cir. 2010).
Finally, for a state court's resolution of a claim to be an
adjudication on the merits, so that the state court's determination
will be entitled to deference for purposes of federal habeas corpus
review under the AEDPA, all that is required is a rejection of the
claim on the merits, not an opinion that explains the state court's
rationale for such a ruling. Harrington v. Richter, 131 S.Ct. 770,
785 (2011) (holding that section 2254(d) does not require a state
court to give reasons before its decision can be deemed to have
been adjudicated on the merits); Wright v. Sec'y for the Dep't of
Corr., 278 F.3d 1245, 1255 (11th Cir. 2002).
Thus, to the extent
that Collins' claims were adjudicated on the merits in the state
courts, they must be evaluated under § 2254(d).
V. Findings of Fact and Conclusions of Law
A. Claim One
As Claim One, Collins asserts that, at trial, the state court
improperly allowed Deputy Thomas Reeves to read hearsay statements
from Katherine Holton, the victim.
unsuccessfully on direct appeal.
Collins raised this claim
Upon review of the record, the
Court finds that the state court's rejection of this claim was not
4
"This presumption of correctness applies equally to factual
determinations made by state trial and appellate courts." Bui v.
Haley, 321 F.3d 1304, 1312 (11th Cir. 2003) (footnote omitted)
(citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
8
contrary to, nor did it involve an unreasonable application of,
clearly established Supreme Court precedent, nor was it based upon
an unreasonable determination of the facts in light of the evidence
presented. As such, Collins is not entitled to habeas relief as to
this claim.
Even if there were no state court adjudication entitled to
deference, Collins’ Claim One is due to be denied.
In Claim One,
Collins challenges a trial court evidentiary ruling; thus he
present an issue of state law that is not cognizable on federal
habeas review.
The purpose of a federal habeas proceeding is
review of the lawfulness of a petitioner's custody to determine
whether that custody is in violation of the Constitution or laws or
treaties of the United States.
See Coleman v. Thompson, 501 U.S.
722 (1991).
"Federal habeas relief is unavailable 'for errors of
state law.'"
Jamerson v. Secretary for Dept. of Corrections, 410
F.3d 682, 688 (11th Cir. 2005) (quoting Estelle v. McGuire, 502
U.S. 62, 67 (1991)).
the Court is
own
laws
Moreover, on federal habeas corpus review,
bound by the Florida court's interpretation of its
unless
that
constitutional mandate.
(11th Cir. 1992).
interpretation
breaches
a
federal
McCoy v. Newsome, 953 F.2d 1252, 1264
Thus, Collins is not entitled to relief on the
state law issue raised in Claim One.
Assuming
that
Claim
One
presents
an
issue
of
federal
constitutional dimension, it is, nevertheless, without merit. The
9
record reflects that the disputed statement was a comment written
by Ms. Holton on the back of a photograph that she had identified
in a photo spread. Deputy Thomas Reeves testified at trial that he
displayed a photo spread to Ms. Holton and that she selected
Petitioner’s picture.
Over objection, the trial court allowed
Deputy Reeves to read to the jury what Ms. Holton had written on
the back of the photograph. In the statement, Ms. Holton indicated
that she had been unable to identify Collins at the scene because
he was not wearing a hat and glasses.
Ms. Holton made the same
statement during her trial testimony: she had been unable to
identify Petitioner at the scene because he was not wearing a hat
and glasses.
On
habeas
review
under
the
AEDPA,
the
prejudice
of
a
constitutional error in a state-court criminal trial is measured by
the “substantial and injurious effect” standard of Brecht v.
Abrahamson,
507
U.S.
619
(1993).
An
error
is
sufficiently
prejudicial only when it has a “substantial and injurious effect or
influence in determining the jury's verdict.”
Brecht, 507 U.S. at
623. The challenged statement that Ms. Holton made on the back of
the photograph simply repeated her trial testimony. Because it was
cumulative of other evidence presented at trial, it was not crucial
evidence and its admission, even if erroneous, was only harmless
error.
See Brecht, 507 U.S. at 637.
10
Thus, Claim One must fail.
B. Claim Two
As Claim Two, Collins contends that the trial court erred when
it allowed the admission of a driver’s license photograph, taken in
January 2000, showing Collins wearing glasses.
Collins asserts
that the photograph was not relevant to show that he was wearing
similar eyewear on May 15, 2000, when the crimes occurred. Collins
raised this claim in his direct appeal.
Like Claim One, this claim involves a trial court evidentiary
ruling error and presents an issue of state law that is not
cognizable on federal habeas review. Thus, Collins is not entitled
to relief on the state law issue raised in claim two.
Even assuming that this claim presents an issue of federal
constitutional dimension, it is without merit. Several witnesses
testified that Collins had been wearing glasses at the time of the
crime, but, when he was apprehended as a suspect, he was not
wearing glasses.
show
what
The driver’s license photograph was relevant to
Collins
would
look
like
wearing
glasses
and
to
demonstrate that Collins had a restriction on his license requiring
him to wear corrective lenses.
Collins has neither demonstrated that the state court's ruling
with regard to this matter was erroneous nor that the ruling
deprived him of a fundamentally fair trial.
Moreover, Collins has
failed to establish that the alleged error by the trial court with
regard to this matter had a substantial and injurious effect or
11
influence in determining the jury's verdict.
Finally, the state
court's rejection of this claim was not contrary to, nor did it
involve an unreasonable application of, clearly established Supreme
Court
precedent,
nor
was
it
based
upon
an
unreasonable
determination of the facts in light of the evidence presented.
Thus, this claim must fail.
C. Claim Three
As Claim Three, Collins argues that the trial court entered an
illegal sentence.
In particular, he contends that Florida Statute
section 775.084(1)(b)under which he was sentenced as a habitual
violent felony offender, violates Apprendi v. New Jersey, 530 U.S.
466 (2000).
Collins raised this claim in his first Rule 3.800(b)
motion and in his direct appeal. The state courts rejected his
contention.
In Apprendi, the United States Supreme Court held that any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt. In the present case, the record reveals that
Collins’
sentence
convictions.
Apprendi
was
enhanced
based
upon
his
prior
felony
However, Apprendi does not apply to Collins’ case as
expressly
excludes
recidivism
from
its
scope.
Thus,
Collins’ claim is without merit as there is a recidivist exception
such that a defendant's prior conviction is merely “a sentencing
factor” that need not be submitted to the jury and proved beyond a
12
reasonable doubt. Almendarez–Torres, 523 U.S. 224, 226-27 (1998).5
Therefore, Collins’ Claim Three fails.6
D. Claim Four
In Claim Four, Collins asserts that this Court erred by
dismissing his prior habeas petitions.
The proper mechanism for
challenging a judgment or order from this Court is through an
appeal to the Eleventh Circuit Court of Appeals. This claim, which
does not deal with his underlying state conviction, can not be
addressed through a federal habeas corpus petition, and thus due to
be denied.
See Smith v. McCotter, 786 F.2d 697, 700 (5th Cir.
1986) ("The purpose of section 2254 is clear--to require state
convictions to meet federal constitutional requirements applicable
to the states.").
VI. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Collins seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted.
This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
5
Recognizing recidivism as a traditional basis for a sentencing
court’s increasing an offender’s sentence, the Apprendi court declined
to revisit Almendarez–Torres. Apprendi, 530 U.S. at 488–90.
6
Further, the state court's rejection of this claim was not
contrary to, nor did it involve an unreasonable application of,
clearly established Supreme Court precedent, nor was it based upon
an unreasonable determination of the facts in light of the evidence
presented.
13
of a constitutional right."
28 U.S.C. §2253(c)(2).
To make this
substantial showing, Collins "must demonstrate that reasonable
jurists
would
find
the
district
court's
constitutional claims debatable or wrong."
U.S. 473, 484 (2000).
assessment
of
the
Slack v. McDaniel, 529
When a district court has rejected a
petitioner's constitutional claims on the merits, the petitioner
must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong.
See Slack, 529 U.S. at 484.
However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling."
Id.
Collins has not demonstrated that reasonable jurists would
find this Court's assessment of the constitutional claims debatable
or wrong.
Moreover, Collins has not demonstrated that jurists of
reason would find this Court's procedural rulings debatable. Last,
Collins has failed to make a substantial showing of the denial of
a constitutional right.
Consequently, the Court will deny Collins
a certificate of appealability.
14
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition for Writ of Habeas Corpus (Doc. No. 1) is
DENIED, and this action is DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
3.
If Collins appeals the denial of the Petition, the Court
denies a certificate of appealability.
Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this
case.
Such termination shall serve as a denial of the motion.
4.
The Clerk of the Court shall close this case.
DONE AND ORDERED at Jacksonville, Florida, this 19th day of
August, 2013.
OrlP-2
Copies to:
Thomas C. Collins
Counsel of Record
15
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