PARKS v. TUCKER
Filing
27
ORDER denying the petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability. Signed by Judge Brian J. Davis on 11/20/2014. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
XAVIER PARKS,
Petitioner,
v.
Case No. 3:11-cv-1213-J-39MCR
SECRETARY, DOC,
et al.,
Respondents.
ORDER
I. Status
Petitioner Xavier Parks, represented by counsel, initiated
this
action
by
filing
a
Petition
for
Writ
of
Habeas
Corpus
(Petition) (Doc. 1) and Memorandum of Law (Memorandum) (Doc. 3)
under 28 U.S.C. § 2254 on November 23, 2011.
He challenges a 2007
state court (Duval County, Florida) judgment of conviction for
unarmed carjacking.
Respondents submitted an Answer to Petition
for Writ of Habeas Corpus (Response) (Doc. 23) with an Appendix
(Ex.).1
1
Petitioner filed a Reply (Doc. 25).
See Order (Doc. 20).
Where provided, the page numbers referenced in this opinion
are the Bates stamp numbers at the bottom of each page of the
Appendix. Otherwise, the page number on the particular document
will be referenced. With respect to the Petition, Memorandum, and
Response, the page numbers referenced are those assigned by the
electronic filing system.
II. Procedural History
At the age of sixteen, Petitioner was arrested for the offense
of carjacking.
Ex. 1.
On January 29, 2007, the State of Florida
charged Petitioner, by information, with carjacking.
Ex. 2.
The
prosecutor filed a Certificate of Filing Direct Information on
Juvenile.
It states:
The State of Florida, by and through the
undersigned Assistant State Attorney, hereby
certifies, pursuant to Section 985.557,
Florida Statutes, that the public interest
requires that adult sanctions be considered or
imposed with respect to the above-named
juvenile, and has accordingly filed a direct
information naming the said juvenile as the
defendant.
Ex. 3.
Petitioner and his counsel, on August 2, 2007, signed a Plea
of Guilty - Open Plea to the Court.
Ex. 4.
During the plea
colloquy, the trial court asked Petitioner whether he understood
that he was facing a sentence from twenty-one months to thirty
years.
After
Ex. 5 at 102.
further
Petitioner responded affirmatively.
inquiry,
voluntarily entered.
basis for the plea.
the
court
Id. at 108.
found
the
plea
freely
Id.
and
The Court also found a factual
Id.
Prior to sentencing, on October 1, 2007, Petitioner filed a
Memorandum of Law for Downward Departure, asking the court to
consider a youthful offender departure, referencing Petitioner's
age of sixteen years, and to also consider that the offense was an
2
isolated incident committed in an unsophisticated manner by a
remorseful child.
Ex. 6 at 23.
The trial court sentenced
Petitioner to twenty years in prison.
Ex. 7.
the Judgment and Sentence on October 2, 2007.
The court entered
Ex. 18.
On October 5, 2007, Petitioner filed a Motion to Correct
Sentencing Error.
Ex. 9.
The state filed a letter response, Ex.
10, and Petitioner replied.
Ex. 11.
motion on November 19, 2007.
The trial court denied the
Ex. 13.
Petitioner filed a Notice of Appeal to review the Judgment and
Sentence on October 31, 2007.
Ex. 12.
Of significance for this
Court's review, on May 9, 2008, Petitioner filed a Motion to
Correct Sentence Pursuant to Rule 3.800(b)(2).
Ex. 14.
On May
21, 2008, he filed an Amended Motion to Correct Sentence Pursuant
to Rule 3.800(b)(2).
amended
motion,
sentencing
him
Ex. 15.
Petitioner
as
an
adult
In the original motion and the
claimed
the
"because
trial
the
court
propriety
erred
of
in
adult
sanctions was not determined beyond a reasonable doubt by the trial
court as the finder of fact[,]" relying on the Supreme Court cases
of Sandstrom v. Montana, 442 U.S. 510 (1979), and Apprendi v. New
Jersey, 530 U.S. 466 (2000).
Ex. 14 at 2; Ex. 15 at 2.
In its Order Denying in Part and Granting in Part Defendant's
Motion to Correct Sentence Pursuant to Rule 3.800(b)(2), the trial
court rejected this particular ground finding:
In his first claim, Defendant avers that the
Court erred in sentencing him as an adult
3
because "the imposition of adult sanctions in
excess of that permitted under the Youthful
Offender
statute
violates
the
Sixth
Amendment." The Defendant bases his claim on
the rationale expressed in Apprendi v. New
Jersey, 530 U.S. 466 (2000), Sandstrom v.
Montana, 442 U.S. 510 (1979), and In re
Winship, 397 U.S. 358 (1970), for the
proposition that the statute under which he
was prosecuted, section 985.557, Florida
Statutes (2006), improperly removes from the
trial court the factual determination as to
whether the adult sanction was "required by
the public interest."
Initially, this Court notes that the
Defendant attempts to equate an information
filing statute, section 985.557, with the
sentencing schemes disproved in Apprendi,
Sandstrom, and Cunningham v. California, 549
U.S. 270 (2007). This Court finds that the
comparison between the statutes is not
appropriate as section 985.557, Florida
Statutes (2006), provides "the basis by which
adjudication is initiated", it is not used to
determine the sentence imposed on a defendant.
State v. Cain, 381 So.2d 1361, 1366 (Fla.
1980).
Further, "the Florida Constitution
explicitly
provides
that
the
Florida
Legislature determines when a child may be
charged as a juvenile rather than an adult."
State v. Metzler, 791 So.2d 565, 567 (Fla. 1st
DCA 2001). Therefore, the State did not make
a finding of fact as to whether to sentence
the Defendant as an adult, it merely exercised
its discretion to file charges against the
Defendant as an adult.
Ultimately, the
decision to sentence the Defendant as an adult
remained with the Court.
The Court's
sentencing powers derive from section 985.565,
Florida Statutes (2006), pursuant to which the
Court retained the discretion to sentence the
Defendant as an adult, youthful offender, or
juvenile.
At sentencing, the Court exercised its
discretion and sentenced the Defendant as an
adult.
Pursuant to section 985.565(4)4,
4
"[a]ny sentence imposing adult sanctions is
presumed appropriate, and the court is not
required to set forth specific findings or
enumerate the criteria in this subsection as
any basis for its decision to impose adult
sanctions." At both the plea and sentencing
hearings, the Court confirmed with the State,
the Defendant, and trial counsel, that the
minimum guidelines sentence was twenty-one
(21) months and the maximum guidelines
sentence was thirty (30) years.
The twenty
(20) year sentence imposed by the Court did
not exceed the statutory maximum authorized by
section 775.082, Florida Statutes (2006).
Consequently, the Defendant's sentence was
not, as he claims, enhanced beyond the
authorized statutory maximum, rather; it was
well within the maximum sentence the judge
could impose without finding any additional
facts.
Ex. 16 at 13-15.
However, the trial court considered and granted
the motion on a different ground, and as relief, reversed and
remanded for re-sentencing.
Id. at 17-18.
Petitioner received a ten-year sentence.
On
direct
appeal,
Petitioner,
On August 10, 2009,
Ex. 18 at 5-6.
through
counsel,
filed
an
Initial Brief, arguing that the adult sanctions imposed pursuant to
§ 985.557, Fla. Stat., violate Sandstrom and Apprendi.
Ex. 19.
The State filed an Answer Brief, Ex. 20, and Petitioner filed a
Reply Brief.
Ex. 21.
On July 14, 2010, the appellate court
affirmed Petitioner's conviction and sentence per curiam. Parks v.
State, 39 So.3d 1269 (Fla. 1st DCA), cert. denied, 131 S.Ct. 656
(2010); Ex. 22.
The mandate issued on July 30, 2010.
Ex. 22.
Petitioner filed a Petition for Writ of Certiorari in the
United States Supreme Court raising one ground:
5
Whether the imposition of adult sanctions
pursuant to section 985.557(1), Florida
Statutes (2006), the juvenile "discretionary
direct file" statute, violates Apprendi v. New
Jersey, 530 U.S. 466 (2000)?
Ex. 23.
The state notified the Supreme Court that it would not
file a response unless directed to do so.
Ex. 24.
On November 29,
2010, the Supreme Court denied the petition without comment. Parks
v. Florida, 131 S.Ct. 656 (2010); Ex. 25.
III. One-Year Limitations Period
The Petition is timely filed within the one-year period of
limitations.
Response at 5.
See 28 U.S.C. § 2244(d).
IV. Standard of Review
The Court will address each ground raised, Clisby v. Jones,
960 F.2d 925, 936 (11th Cir. 1992), Dupree v. Warden, 715 F.3d
1295, 1298 (11th Cir. 2013), but no evidentiary proceedings are
required in this Court.
In addressing Petitioner's sole claim for
habeas relief, the Court will analyze it under 28 U.S.C. § 2254(d),
as amended by the Antiterrorism and Effective Death Penalty Act
(AEDPA).
"By its terms [28 U.S.C.] § 2254(d) bars relitigation of
any claim 'adjudicated on the merits' in state court, subject only
to th[re]e exceptions."
(2011).
Harrington v. Richter, 131 S.Ct. 770, 784
The designated exceptions are: (1) the state court's
decision was contrary to clearly established federal law; or (2)
there
was
an
unreasonable
application
6
of
clearly
established
federal law; or (3) the decision was based on an unreasonable
determination of the facts.
Id. at 785.
Also of note, there is a presumption of correctness of state
courts' factual findings unless rebutted with clear and convincing
evidence.
28 U.S.C. § 2254(e)(1).
Finally, this presumption
applies to the factual determinations of both trial and appellate
courts.
See Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003).
V. Findings of Fact and Conclusions of Law
As ground one, Petitioner claims that his sentence of ten
years in prison was imposed in violation of Apprendi.
Petition at
5. As noted by Respondents, Petitioner exhausted this claim in his
initial and amended Rule 3.800(b)(2) motions to correct sentencing
error filed in the circuit court, as well as in his initial brief
filed on direct appeal in the state appellate court. As previously
set forth in the procedural history, the circuit court denied the
Rule 3.800(b)(2) motion to correct sentence, Ex. 16, and the
appellate court affirmed Petitioner's conviction and sentence on
direct appeal.
Ex. 22.
Also, the Supreme Court denied the
petition for writ of certiorari.
Ex. 25.
Based on this record,
the Court concludes that Petitioner exhausted his state court
remedies, and the issue raised in ground one was adjudicated on its
merits in the state courts.
See Response at 10-15.
With regard to the law at issue, on June 26, 2000, the United
States Supreme Court held that
"[o]ther than the fact of a prior
7
conviction, 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."
Apprendi, 530 U.S. at 490.
As
the Court clarified on June 24, 2004, "the 'statutory maximum' for
Apprendi purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or admitted
by the defendant." Blakely v. Washington, 542 U.S. 296, 303 (2004)
(emphasis deleted).
In addition, in Sandstrom, 442 U.S. at 524,
the Supreme Court found that a jury instruction which constituted
either a burden-shifting presumption or a conclusive presumption
deprived the defendant of due process of law, violating the
Fourteenth Amendment's requirement that the state prove every
element of a criminal offense beyond a reasonable doubt.
Petitioner
argues
that
"Apprendi,
taken
together
with
Sandstrom, compels the conclusion that the imposition of adult
sanctions in excess of the maximum juvenile sanctions authorized by
section
984.465,
Florida
Statutes
(2007),
violates
the
Sixth
Amendment or the Due Process Clause of the Fifth and Fourteenth
Amendments, or both."
Memorandum at 4.
He contends that this
assertion has merit "because the factual question whether the
imposition of adult sanctions was 'required by the public interest'
was determined at the discretion of the prosecutor; it was not
found to exist beyond a reasonable doubt by the appropriate factfinding body, i.e, jury or judge sitting as finder of fact."
8
Id.
Upon
review,
the
Florida
courts
rejected
Petitioner's
proposition, not only in this case, but in other cases raising the
same or very similar claims.
For instance, the First District
Court of Appeal, in Kirkland v. State, 67 So.3d 1147, 1149 (Fla.
1st DCA 2011), in a written opinion addressing a comparable claim,
found Apprendi inapplicable to the decision of the prosecutor "to
charge [the defendant] as an adult and proceed in felony criminal
court, pursuant to section 985.557, Florida Statutes, without a
jury determination of fact to justify exposure of [the defendant]
to a criminal sentence rather than the less severe juvenile
sanctions."
First, the court found: "[t]he decision to proceed in
the adult court rather than the juvenile court was a pre-trial
choice made by the state attorney, pursuant to section 985.557,
Florida Statutes."
Id.
The court explained that the prosecutor's
decision under this statute is actually a choice to either proceed
in the juvenile forum or in an adult jurisdiction, not a sentence
enhancement determination.
Id.
In addition, the Florida appellate court recognized that the
United States Supreme Court, in Oregon v. Ice, 555 U.S. 160 (2009),
decided that the Sixth Amendment right to a jury trial (or, in this
instance, a judge as a fact-finder) "does not attach to every
state-law entitlement to predicate findings."
Kirkland, 67 So.3d
at 1149 (internal quotation marks omitted) (quoting Ice, 555 U.S.
at 170). Of import, the Florida court concluded that the reasoning
9
in Apprendi and Blakely has not been extended "beyond the offensespecific context that supplied the historic grounding for the
decisions."
Id. (citing Ice, 555 U.S. at 163).
Finally, an additional distinguishing factor is that "the
determination by the state attorney to direct file under section
985.557, Florida Statutes is not a fact that increases the penalty
for a crime beyond the prescribed statutory maximum." Kirkland, 67
So.3d at 1150.
Indeed, the court described the prosecutor's
discretionary decision to refer a juvenile to adult jurisdiction
based on a determination of the public interest as a "policy
consideration[.]"
Id.
The court rejected the assertion that this
determination
the
state
by
attorney
constituted
a
"factual
determination that increases the penalty for a crime beyond the
prescribed statutory maximum."
Id.
The majority of courts have reached this same conclusion.
State v. Childress, 169 Wash.App. 523, 532 (Wash. App. Div. 1 2012)
(Opinion Published in Part) (finding the Apprendi rule inapplicable
to juvenile decline proceedings, concluding this type of decision
to be a "jurisdictional determination," not an imposition of any
sentence), cert. denied, 133 S.Ct. 2400 (2013).
More recently, in
People v. Valles, No. 08CA0738, 2013 WL 2450721, at *2 (Colo. App.
June 6, 2013) (to date, not released for publication), the Colorado
appellate court distinguished a direct file statute from the
"statutory schemes that allowed a trial court to increase a
10
defendant's sentence based on facts determined by the trial court
subsequent to the defendant's conviction[,]" finding the juvenile
transfer statutory scheme involves a prosecutor's pretrial exercise
of discretion, unlike the statutory scheme at issue in Apprendi and
its progeny requiring post-trial findings of fact.
The Colorado
court also recognized that in Ice, the Supreme Court decided that
the holdings in Apprendi and Blakely are "limited in application to
the 'historic role[s]' of a jury." Valles, 2013 WL 2450721, at *3.
And, with respect to direct file statutes, the Valles
court
concluded that "[a]lthough the statute can result in a defendant
being sentenced to a significantly longer period of incarceration,
the decision regarding the forum in which a case is filed has never
been part of the historical role of a jury."
Id.
Including a
citation to Kirkland, the Colorado court recognized that other
jurisdictions have similarly come to the same conclusion. Id. But
see
Commonwealth
v.
Quincy
Q.,
753
N.E.2d
781
(Mass.
2001)
(requiring a jury determination of the requirements for youthful
offender status), overruled on other grounds, Commonwealth v. King,
834 N.E.2d 1175 (Mass. 2005).
In Gonzales v. Tafoya, 515 F.3d 1097, 1111 (10th Cir.), cert.
denied, 555 U.S. 890 (2008), the Tenth Circuit noted that a
Massachusetts court held Apprendi applicable to juvenile transfer
proceedings in Quincy Q., but the Tenth Circuit sided with the vast
majority of courts and declined to follow the court's reasoning in
11
Quincy Q.
In Gonzales, the court observed three factors used in
distinguishing
determinations.2
Apprendi's
rule
from
juvenile
Gonzales, 515 F.3d at 1111-12.
transfer
First, the
decision to transfer a juvenile to adult court concerns the court's
jurisdiction. Id. at 1112. Second, there are distinct differences
between juvenile and adult criminal justice systems, including the
fact that juveniles do not enjoy every right criminal defendants
enjoy, including the right to a jury trial.
Id.
And third, the
findings necessary for referring a juvenile to adult prosecution
differs substantially from findings traditionally made by juries.
Id.
In denying the claim, the Tenth Circuit held:
We therefore conclude that the New Mexico
Court of Appeals's refusal to apply Apprendi's
holding to juvenile transfer proceedings is
neither contrary to nor an unreasonable
application of federal law. Thus, Mr. Gonzales
2
The Court recognizes that New Mexico's juvenile transfer
proceeding, with the judge making a series of judgments, is quite
different from the direct file proceeding adopted in Florida, but
the reasoning of the court is informative and consistent with the
Florida court's conclusion that Apprendi is inapplicable to direct
file determinations. Gonzales, 515 F.3d at 1112-13. See Morales
v. United States, No. 09 Civ. 50809(LAP), 2010 WL 3431650, at *9
(S.D.N.Y. Aug. 31, 2010) (Not Reported in F.Supp.2d) (a transfer to
adult status does not implicate Apprendi and thus "does not trigger
the need for a jury's fact finding function"), reconsideration
denied, 2010 WL 4720256 (S.D.N.Y. Nov. 17, 2010); State v. Rudy B.,
243 P.3d 726, 736, 740 (N.M. 2010) (noting that the jury
historically played no role in sentencing a child as an adult,
holding the amenability determination is not within the scope of
the Apprendi rule, and finding the Sixth Amendment's guarantee of
a jury trial is inapplicable), cert. denied, 131 S.Ct. 2098 (2011).
12
is not entitled to relief on his claim that
the state court judge violated his Due Process
and Sixth Amendment rights by making findings
in support of an adult sentence and by
applying the clear-and-convincing burden of
proof.
Id. at 1117.
In the instant case, although the Court finds Petitioner's
plea for relief somewhat compelling due to Petitioner's record and
age at the time of the offense (Petitioner was only sixteen at the
time of the offense; Petitioner pled straight up to the court; the
prosecutor recommended a ten-year prison sentence; and, Petitioner
was initially sentenced to twenty years in prison, apparently on
his first felony offense, without any significant prior criminal
history),3 see Ex. 9 at 30-31, Petitioner is simply not entitled to
habeas corpus relief.
An explanation follows.
This Court has the power to grant Petitioner habeas corpus
only if the Florida courts' decisions were contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, or was based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.
3
See Patrick
The Court's concerns, however, are appeased by the fact that
on re-sentencing, Petitioner received a ten-year sentence, the
sentence the state recommended at sentencing. Ex. 18 at 5-6. The
maximum sentence Petitioner could have received was thirty years;
therefore, his sentence of ten years in prison is well within the
prescribed statutory maximum.
Indeed the sentence Petitioner
ultimately received is on the lower-end of the sentencing spectrum
for a first degree felony offense.
13
Glebe, Superintendent, Stafford Creek Corrections Center v. Joshua
James Frost, 574 U.S. –- [at 2] (November 17, 2014).
As noted by Respondents,
neither Apprendi, Blakely, nor Sandstrom
address, much less establish a rule of law
that a prosecutor's discretionary decision to
charge a juvenile as an adult upon determining
that adult sanctions best serve the public
interest is unconstitutional because whether
adult sanctions best serve the public interest
is a factual determination which increases the
proscribed penalty beyond the statutory
maximum otherwise applicable to juveniles and
creates
an
impermissible
rebuttable
presumption that adult sanctions best serve
the public interest.
Response at 19.
Pursuant
to
AEDPA,
the
only
accepted
source
of
clearly
established federal law is the actual holdings of the Supreme Court
at the time of the state court's decision. Not only has Petitioner
failed to establish a violation of "clearly established Federal
law", he has not met the "contrary to" clause of § 2254(d)(1), as
the Florida courts' decisions on this issue are not opposite of
that of the Supreme Court or based on a set of "materially
indistinguishable" facts from those found in Apprendi, Blakely, and
Sandstrom.
See Williams v. Taylor, 529 U.S. 362, 412-13 (2000)
(describing the new constraint AEDPA places on the power of a
federal habeas court to grant relief based on an application for a
writ of habeas corpus).
Finally, the circuit court and appellate
14
court decisions were not "objectively unreasonable."
Renico v.
Lett, 559 U.S. 766, 773 (2010).
Upon review, the decision to prosecute a juvenile in adult
court is not one understood to be in the domain of the jury.
Ice, 555 U.S. at 168.
See
And, with the twin considerations of
historical practice and respect for state sovereignty, Apprendi and
its progeny have not been extended by the United States Supreme
Court to apply to a prosecutor's pre-trial jurisdictional charging
decision.
Cf.
Apprendi's
rule
Ice,
to
555
the
U.S.
at
1681
imposition
of
(declining
sentences
to
for
extend
discrete
crimes). There remains fair-minded disagreement on this issue, and
as noted previously, a very strong majority of courts reviewing
this
claim
refuse
to
extend
Apprendi's
rule
to
direct
file
determinations.
Therefore, Petitioner is not entitled to habeas relief because
the state courts' adjudications of this claim are entitled to
deference under AEDPA.
applicable
law,
adjudications
established
the
of
Court
this
federal
After a review of the record and the
concludes
claim
law,
were
did
that
not
not
the
state
contrary
involve
an
to
courts'
clearly
unreasonable
application of clearly established federal law, and were not based
on an unreasonable determination of the facts in light of the
evidence
presented
in
the
state
court
proceedings.
Thus,
Petitioner is not entitled to relief on the basis of ground one.
15
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk shall enter judgment denying the Petition and
dismissing this case with prejudice, and the Clerk shall close this
case.
3.
If Petitioner appeals the denial of the Petition, the
Court denies a certificate of appealability.4
has
determined
that
a
certificate
of
Because this Court
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may befiled
in this case.
Such termination shall serve as a denial of the
motion.
DONE AND ORDERED at Jacksonville, Florida, this 20th day of
November, 2014.
4
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial 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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
16
sa 11/19
c:
Counsel of Record
17
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