Spencer v. Tifft et al
Filing
21
ORDER denying the Petition and dismissing the action with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 11/21/2014. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RANDY LAVERN SPENCER,
Petitioner,
v.
Case No. 3:12-cv-34-J-34PDB
SECRETARY OF THE FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Randy Lavern Spencer, an inmate of the Florida
penal system, initiated this action on January 11, 2012, by filing
a pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1)
under 28 U.S.C. § 2254. In the Petition, Spencer challenges a March
10, 2010 arrest in Columbia County, Florida. Respondents have
submitted a memorandum in opposition to the Petition. See Motion to
Dismiss Habeas Petition (Response; Doc. 9) with exhibits (Resp.
Ex.). On April 20, 2012, the Court entered an Order to Show Cause
and Notice to Petitioner (Doc. 7), admonishing Spencer regarding
his obligations and giving Spencer a time frame in which to submit
a reply. Spencer submitted a brief in reply. See Petitioner's Reply
(Reply; Doc. 10) with exhibits (Pet. Ex.). This case is ripe for
review.
II. Procedural History
On March 10, 2010, Columbia County, Florida, law enforcement
officers arrested Spencer for violation of probation (conditional
release), possession of a firearm by a convicted felon, possession
of oxycontin, possession of drug paraphernalia, and possession of
cocaine.1 Resp. Ex. C at 18-19, Arrest Affidavit; Pet. Ex. A at 23. On March 12, 2010, the Florida Department of Corrections filed
a violation report and recommended the following:
Spencer continues to surround himself with
drugs and firearms. He has now been charged
with new felony offenses of Possession of
Firearm by Convicted Felon, Possession of
Oxycontin,
Possession
of
Cocaine
and
Possession of Drug Paraphernalia. It is
recommended that his conditional release be
revoked and that he be returned to the
Department of Corrections to complete his
original sentence.
Pet. Ex. C at 4, State of Florida Department of Corrections
Violation Report Warrantless Arrest.
On March 17, 2010, in Case No. 10-173-CF-(A), the State of
Florida charged Spencer with possession of a firearm by a convicted
felon (count one), possession of a controlled substance, cocaine
(count two), possession of a controlled substance, oxycontin (count
three), and possession of drug paraphernalia (count four). Resp.
Ex. D, Information. Following a hearing which began on January 24,
1
Spencer was released from prison on September 1, 2009, on
conditional release supervision, after serving a term of
incarceration for a 1992 second degree murder conviction and other
felonies. Resp. Ex. A; Pet. Ex. C at 3.
2
2011, and continued on March 1, 2011, the court granted Spencer's
motion to suppress on March 31, 2011, as to the items seized in the
kitchen area of the residence searched (a piece of crack cocaine,
plastic baggies, a spoon, syringes and a pipe smoking device) and
denied his motion to suppress as to the items seized from the
child's bedroom (the gun, magazine, holster, and an Oxycontin
pill). See Resp. Ex. F; Pet. Ex. E, Order Granting in Part and
Denying in Part Defendant's Motion to Suppress.
On
April
20,
2010,
Spencer
appealed
the
trial
court's
determination that there existed probable cause for his arrest. See
Reply at 2, 4. The appellate court dismissed the appeal for lack of
jurisdiction on September 1, 2010, and later denied his motion for
rehearing on October 14, 2010. See Spencer v. State, Florida First
District Court of Appeal Docket, Case No. 1D10-2020. On January 12,
2011, the appellate court denied Spencer's petition for writ of
habeas corpus on the merits. Spencer v. State, 51 So.3d 1158 (Fla.
1st DCA 2011).
Spencer filed a petition for writ of prohibition in the First
District Court of Appeal on April 20, 2011, seeking to prevent the
admission of incriminating evidence at trial. Pet. Ex. G. On April
28, 2011, the State of Florida decided not to prosecute the new
criminal charges and filed a formal nolle prosequi on all four
counts. Resp. Ex. G; Pet. Ex. F, Notice of Nolle Prosequi (Notice).
The Notice states in pertinent part:
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The
above-entitled
cause
has
been
investigated by the Office of the State
Attorney, and it appears that justice would
best be served by the entry of a Nolle
Prosequi. The state therefore declined to
prosecute that above cause for the following
reason(s):
Although there is enough probable cause
for the arrest of the defendant on the above
captioned charges, the crimes alleged cannot
be proven beyond a reasonable doubt. Regarding
counts 2 and 4 of the Information, the
evidence
to
prove
these
charges
(the
contraband located in the kitchen) was
suppressed based on case law presented to the
court. Counts 1 and 3 of the Information (the
firearm and Oxycontin located in the child's
bedroom) are also nolle prosequi due to the
fact that DNA evidence located in the firearm
did not match the defendant's DNA. In
addition, testimony taken under oath in court
from defense witnesses during the motion to
suppress evidence [hearing] presented a
reasonable hypothesis of innocence for the
alleged possession of the oxycontin pill which
the State cannot refute by clear and
convincing evidence.
If the above-named defendant(s) is in
custody, the Sheriff of Columbia County is
hereby authorized to release the above-named
defendant(s)
on
the
charge(s)
of:
1.
Possession of Firearm by Convicted Felon, 2.
Possession of Controlled Substance - Cocaine,
3. Possession of Controlled Substance Oxycontin,
[4.]
Possession
of
Drug
Paraphernalia.
Id. (selected capitalization omitted). The appellate court denied
the petition for writ of prohibition on May 19, 2011, and later
denied Spencer's motion for rehearing on June 28, 2011. Spencer v.
State, 64 So.3d 680 (Fla. 1st DCA 2011). On October 10, 2011, the
appellate
court
also
denied
Spencer's
4
petition
for
writ
of
certiorari, and later denied Spencer's motion for rehearing on
December 6, 2011. Spencer v. State, 75 So.3d 726 (Fla. 1st DCA
2011); Pet. Ex. H.
III. Evidentiary Hearing
"In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted).
"It follows that if the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing." Id. The pertinent
facts of this case are fully developed in the record before the
Court. Because this Court can "adequately assess [Petitioner's]
claim[s] without further factual development," Turner v. Crosby,
339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will
not be conducted.
IV. Findings of Fact and Conclusions of Law
Spencer asserts that: the trial court's March 11, 2010 finding
that probable cause existed for the warrantless arrest based upon
the arresting officer's affidavit violated Spencer's due process
rights (ground one), see Pet. Ex. B, First Appearance Order; the
trial judge overruled the First Appearance Order when he partially
granted Spencer's motion to suppress (ground two), see Pet. Exs. B;
5
E; the State violated Spencer's due process rights when he was
detained on the charges (ground three), see Pet. Ex. A; the
"application of 'vicarious assertion of probable cause' as [an]
exception to warrant violates [the] Due Process Clause" (ground
four); the "application of 'metaphysical subtlety' [(the child's
bedroom inside of the home containing the child's effects)] as [an]
exception to warrant violates [the] Due Process Clause" (ground
five); and the "application of 'recapture provision' as [an]
exception to warrant violates [the] Due Process Clause" (ground
six). Petition at 5-15. Notably, Spencer was neither tried nor
convicted of the charges arising from the March 10, 2010 arrest
that he challenges in the Petition. Indeed, as previously stated,
the State filed a notice of nolle prosequi with respect to the four
charges in Columbia County, Florida, Case No. 10-173, that resulted
from the March 10, 2010 arrest.
Despite
the
nolle
prosequi,
in
the
Petition,
Spencer
challenges his March 10, 2010 arrest. While a case or controversy
may exist as to Spencer's re-incarceration for the violation of his
conditional
revocation
release
of
his
supervision,
conditional
he
does
release.
No
not
challenge
remaining
case
the
or
controversy exists as to his March 10, 2010 arrest and the charges
that the State dismissed. Given that Spencer is only challenging
his March 10, 2010 arrest, his claims, as stated in the Petition,
are moot since there is no relief that this Court can grant to him.
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Therefore, the Petition is due to be dismissed. See Response at 4;
Notice to Court (Doc. 12).
V. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Spencer 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
of a constitutional right." 28 U.S.C. §2253(c)(2). To make this
substantial showing, Spencer "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)).
Where
a
constitutional
district
claims
court
on
has
the
rejected
merits,
the
a petitioner's
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
7
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 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 Spencer 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 is directed to close this case and terminate
any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 21st day of
November, 2014.
8
sc 11/20
c:
Randy Lavern Spencer
Ass't Attorney General (Hill)
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