Blake v. Secretary, DOC et al
Filing
31
ORDER denying 1 the petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability. Signed by Judge Brian J. Davis on 11/24/2014. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LEROY BLAKE,
Petitioner,
vs.
Case No. 3:12-cv-201-J-39JRK
SECRETARY, DOC, et al.,
Respondents.
ORDER
I.
STATUS
Petitioner Leroy Blake filed a Petition for Writ of Habeas
Corpus (Petition) (Doc. 1) under 28 U.S.C. § 2254.
The Petition
challenges a 2008 state court (Duval County) conviction for sale or
delivery of cocaine.
habeas relief.
Id. at 1.
Petitioner raises one ground for
The Court will address this ground, 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.
This cause is before the Court on Respondents' Second Answer
and Motion to Dismiss as Untimely (Response) (Doc. 16).1
The
Exhibits (Appendix) are found attached to an previously provided
1
In light of Zack v. Tucker, 704 F.3d 917 (11th Cir.), cert.
denied, 134 S.Ct. 156 (2013), the Court ordered an amended
response. Given the record, including that this is not "a multiple
trigger date case," the Eleventh Circuit's decision in Zack has no
impact on Petitioner's case.
response (Doc. 13).2
Petitioner filed a reply (Reply) (Doc. 29).
See Orders (Docs. 8 & 28).
II.
STANDARD OF REVIEW
In this habeas proceeding, the Court will analyze Petitioner's
claim 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."
Harrington v. Richter, 131 S.Ct. 770, 784 (2011).
The exceptions
are: (1) the state court's decision was contrary to clearly
established
federal
law;
or
(2)
there
was
an
unreasonable
application of clearly established federal law; or (3) the decision
was based on an unreasonable determination of the facts.
Id. at
785.
There is a presumption of correctness of state courts' factual
findings unless rebutted with clear and convincing evidence.
U.S.C. § 2254(e)(1).
28
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).
2
The Court hereinafter refers to the Exhibits contained in
the Appendix as "Ex." 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.
- 2 -
III.
Under
the
ONE-YEAR PERIOD OF LIMITATIONS
Antiterrorism
and
Effective
Death
Penalty
Act
(hereinafter AEDPA), there is a one-year period of limitations:
(d)(1) A 1-year period of limitation
shall apply to an application for a writ of
habeas corpus by a person in custody pursuant
to the judgment of a State court.
The
limitation period shall run from the latest
of-(A) the date on which the judgment
became final by the conclusion of
direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment
to filing an application created by
State action in violation of the
Constitution or laws of the United
States is removed, if the applicant
was prevented from filing by such
State action;
(C)
the
date
on
which
the
constitutional right asserted was
initially recognized by the Supreme
Court, if the right has been newly
recognized by the Supreme Court and
made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual
predicate of the claim or claims
presented could have been discovered
through
the
exercise
of
due
diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral
review
with
respect
to
the
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
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Respondents contend that Petitioner has not complied with the
one-year period of limitations as set forth in this subsection.
Without
citation
to
legal
authority,
Respondents
argue
that
Petitioner's Rule 3.800(a) motion and his still pending state
petition for habeas corpus do not toll the time because they raise
matters previously adjudicated in the state courts. Response at 5.
The Court is not inclined to adopt Respondents' position without
some reference to persuasive authority. Under these circumstances,
the Court will address ground one without delay, relying on clear
Eleventh Circuit precedent to address the claim raised in the
Petition.
IV.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Ground One
Ground one of the Petition is: "Florida [F]irst District Court
of Appeal when it affirmed Mr. Blake's judgment of conviction and
sentence wherein the trial court erred in sentencing Mr. Blake to
10 years on the strict liability offense of sale or delivery of
cocaine resulted in a decision that was contrary to or involved an
unreasonable application of clearly established federal law in
Shelton v. Sec. Dep't of Corr.[,] 6:07-cv-839-Orl-35KRS, 2011 WL
3236040 (M.D. Fla. July 27, 2011)[.]" Petition at 4.
Petitioner
presented this same claim on direct appeal as ground two.
Id.
He
includes the argument presented on direct appeal to support the
claim raised in ground one.
Id. at 5-10.
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As ground one, Petitioner contends that his ten-year sentence
for sale or delivery of cocaine is improper because Florida law has
made the crime a strict liability offense and due process of law
requires
lenient
sentencing
for
strict
liability
offenses.
Petitioner raised this issue in his brief, as ground two, on direct
appeal.
Ex. 6.
The state filed an answer brief.
Ex. 7.
The
appellate court affirmed Petitioner's conviction and sentence per
curiam.
Ex. 8.
Upon review, the appellate court was presented
with the due process claim.
Although there is not an opinion that
explains the state appellate court's rationale for its ruling, one
is not required.
on its merits.
All that is required is a rejection of the claim
Wright v. Sec'y for the Dep't of Corr., 278 F.3d
1245, 1255 (11th Cir. 2002), cert. denied, 538 U.S. 906 (2003);
Peoples v. Campbell, 377 F.3d 1208, 1227 (11th Cir. 2004), cert.
denied, 545 U.S. 1142 (2005).
This Court must next consider the
"contrary to" and "unreasonable application" components of the
statute.
Under AEDPA, deference is owed to this state court decision.
Therefore, this claim will be addressed applying the deferential
standard for federal court review of a state court adjudication.
Applying this standard, the Court finds that Petitioner is not
entitled to habeas relief.
After a thorough review of the record
and the applicable law, the Court concludes that the state court's
adjudication of this claim was not contrary to clearly established
- 5 -
federal law, did not involve an unreasonable application of clearly
established federal law, and was 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 this claim.3
Additionally,
adjudication
of
even
this
assuming
claim
is
that
not
the
state
entitled
to
court's
deference,
Petitioner's claim is without merit. The Due Process Clause of the
Fourteenth
Amendment
requires
the
State
to
prove
reasonable doubt each element of the offense charged.
beyond
a
Thompson v.
Nagle, 118 F.3d 1442, 1448 (11th Cir. 1997) (citing Jackson v.
Virginia, 443 U.S. 307, 314 (1979)), cert. denied, 522 U.S. 1125
(1998).
Initially, the Court reviews the relevant history, which is
the foundation for the issue raised in ground one:
In Chicone, the supreme court [of
Florida] held that the offense of possession
of a controlled substance included not only
knowledge that the substance was in the
defendant's possession, but also knowledge of
the illicit nature of the substance. See id.
at 738.[4] Subsequently, in Scott v. State,
808 So.2d 166 (Fla. 2002), the supreme court
determined that, regardless of the defense
raised or the affirmative defenses asserted, a
3
See Shelton v. Sec'y, Dep't of Corr., 691 F.3d 1348 (11th
Cir. 2012) (reversing the district court's decision that Florida's
drug statute is unconstitutional for failing to provide a mens rea
element; holding that the district court's failure to accord
deference to the state court decision violated AEDPA), cert.
denied, 133 S.Ct. 1856 (2013).
4
Chicone v. State, 684 So.2d 736 (Fla. 1996).
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defendant is entitled to an instruction on the
element of guilty knowledge in a possession
case because it is an element of the crime.
See id. at 170. The Scott court stated that
failure to give the requested instruction is
not harmless error.
Id.
In McMillon v.
State, 813 So.2d 56 (Fla. 2002), Chicone was
extended to cases where the defendant was
charged with sale of cocaine.
Both Chicone and Scott were addressed,
however, by the legislature's enactment of
section 893.101, Florida Statutes (2002),
which states the following:
(1) The Legislature finds that the
cases of Scott v. State, Slip
Opinion No. SC 94701 [,808 So.2d
166] (Fla. 2002) and Chicone v.
State, 684 So.2d 736 (Fla. 1996),
holding that the state must prove
the defendant knew of the illicit
nature of a controlled substance
found in his or her actual or
constructive
possession,
were
contrary to legislative intent.
(2) The Legislature finds that
knowledge of the illicit nature of a
controlled substance is not an
element of any offense under this
chapter. Lack of knowledge of the
illicit nature of a controlled
substance is an affirmative defense
to the offenses of this chapter.
The effective date of the statute is May
13,
2002
and
it
may
not
be
applied
retroactively. See Quaintance v. State, 845
So.2d 294 (Fla. 1st DCA 2003) (For any offense
occurring prior to May 13, 2002, an essential
element of the crime of possession of an
illegal substance was knowledge of the illicit
nature of the substance); see also Blunt v.
State, 831 So.2d 770, 772 (Fla. 4th DCA 2002)
(May 13, 2002 law may not be applied
retroactively to a charge arising before its
effective date).
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Sandifer v. State, 851 So.2d 788, 789-90 (Fla. 4th DCA 2003).
The United States District Court for the Southern District of
Florida rejected a challenge to the constitutionality of this state
narcotics conviction "on the ground that Fla. Stat. §893.13 charges
strict liability crimes, thereby eliminating the mens rea element
is meritless."
Alvarez v. Crews, No. 13-60664-CIV, 2014 WL 29592,
at *6 (S.D. Fla. Jan. 3, 2014) (Report of Magistrate Judge adopted
by the Court).
Of significance, the Eleventh Circuit and the
Supreme Court of Florida rejected the holding in Shelton v. Sec'y,
Dep't of Corr., 802 F.Supp.2d 1289 (M.D. Fla. 2011) (Shelton I),
finding "Florida's Comprehensive Drug Abuse Prevention and Control
Act, Chapter 893, Fla. Stat., facially constitutional."
Alvarez,
2014 WL 29592, at *6 (citing Shelton v. Sec'y, Dep't of Corr., 691
F.3d 1348 (11th Cir. 2012) (Shelton II) and State v. Adkins, 96
So.3d 412 (Fla. 2012)).
Also, upon review, neither Shelton II or
Adkins have been reversed, vacated, or called into doubt.
Shelton
v. Sec'y, Dep't of Corr., 691 F.3d 1348 (11th Cir. 2012), cert.
denied, 133 S.Ct. 1856 (2013).
The Court also considers the previous rulings of this Court.
The Court previously found that Florida's Drug Abuse and Control
Law (2002 amendment, which eliminated any mens rea requirement) is
not facially unconstitutional due to the absence of a mens rea
requirement. See Harris v. United States, No. 8:11-CV-793-T-30TBM,
2012 WL 1631744, at *2 (M.D. Fla. May 8, 2012) (citing United
States v. Bunton, No. 8:10-cr-327-T-30EAJ, 2011 WL 5080307 (M.D.
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Fla. Oct. 26, 2011) (not reported in F.Supp.2d)) ("[T]his Court has
held, contrary to Shelton [I], that Section 893.13 is not facially
unconstitutional."); Smith v. USA, No. 8:11-cv-1022-T-30EAJ, 2012
WL 868888, at *5 (M.D. Fla. March 14, 2012) (finding the law is not
facially unconstitutional).
More recently, this Court rejected a
similar challenge to that raised by Petitioner.
Merriweather v.
Sec'y, DOC, No. 3:11-cv-458-J-39JBT, 2014 WL 1364638, at *5 (M.D.
Fla. Apr. 7, 2014).
Upon review of the record, the crime in the instant case
occurred on March 14, 2008, Ex. 1 at 9, Ex. 4 at 222, well after
May 13, 2002, the effective date of the statute.
Thus, in
accordance with Florida law, knowledge of the illicit nature of the
substance was no longer an essential element of the crime at the
time it was committed in March of 2008.
accordingly.
Ex. 4 at 221.
The jury was instructed
Of course, "writing of elements into
crimes is for the Legislature", not the courts.5
McMillon v.
State, 813 So.2d 56, 59 (Fla. 2002) (Wells, C.J., dissenting).
Thus, knowledge of the illicit nature of a controlled substance is
no longer an element of the offenses of possession, or sale or
delivery of a controlled substance for offenses committed after May
5
Not only is the Legislature charged with the writing of the
elements of crimes, it is also "vested with broad authority to
determine intent requirements in defining crimes."
Wright v.
State, 920 So.2d 21, 23 (Fla. 4th DCA) (citations omitted), rev.
denied, 915 So.2d 1198 (Fla. 2005).
The Florida courts have
concluded that "the elimination of the difficult-to-prove element
of knowledge of a substance's illicit nature" is rationally related
to the strong governmental interest of addressing the drug problem.
Id.
- 9 -
13, 2002.
Section 893.101, Florida Statutes (2002); see Knox v.
Sec'y, Dep't of Corr., 3:10-cv-306-J-20TEM, Order (Doc. 19), filed
August 11, 2011; Case No. 3:10-cv-306-J-20TEM, Eleventh Circuit's
Order (Doc. 25) (denying Knox's motion for a certificate of
appealability), dated July 9, 2012.
In the instant case, guilty knowledge is not an element of the
offense of sale or delivery of a controlled substance, since
Petitioner committed the offense in March of 2008, after the
effective date of the amended statute.
Indeed, any assertion that
the offense of sale or delivery of cocaine is a "strict liability
offense" is without merit.
See Williams v. State, 45 So.3d 14
(Fla. 1st DCA 2010) (per curiam) (rejecting petitioner's claim that
his sentences are unconstitutional because, by virtue of Florida
Statutes § 893.101, his offenses are "strict liability offenses"
for which the maximum sentences that can be imposed consistent with
due process are no more than one year in jail), rev. denied, 53
So.3d 1022 (Fla. 2011); Wright v. State, 920 So.2d 21, 24 (Fla. 4th
DCA) (finding that § 893.101 "does two things: it makes possession
of a controlled substance a general intent crime, no longer
requiring the state to prove that a violator be aware that the
contraband is illegal, and, second, it allows a defendant to assert
lack of knowledge as an affirmative defense"), rev. denied, 915
So.2d 1198 (Fla. 2005).
Here, Florida Statutes section 893.101 required only that a
matter
peculiarly
within
Petitioner's
- 10 -
knowledge
-
that
the
substance at issue was illicit - be raised as an affirmative
defense rather than proven in the State's case-in-chief.
The
offense for which he was convicted (sale or delivery of cocaine) is
not a strict liability crime entitling Petitioner to a sentence of
no more than one year in jail.
On the contrary, Petitioner's ten-
year term of imprisonment, imposed pursuant to Florida Statutes §
775.082, is lawful and does not violate Petitioner's right to due
process of law.6
habeas relief.
Ex. 1 at 64.
Ground one does not warrant federal
See Response at 12.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition for Writ of Habeas Corpus (Doc. 1) is
DENIED, and this action is DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment accordingly
and close this case.
3.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.7
Because this Court
6
Petitioner faced a maximum possible sentence of fifteen
years. Ex. 1 at 64. The prosecutor recommended that Petitioner be
sentenced to a term of ten years in prison. Id. at 81.
7
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
- 11 -
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.
DONE AND ORDERED at Jacksonville, Florida, this 24th day of
November, 2014.
sa 11/21
c:
Leroy Blake
Counsel of Record
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
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