Pugh v. Secretary, Department of Corrections et al
Filing
15
ORDER denying 1 petition; dismissing the action with prejudice; instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 1/25/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GEORGE CHRISTOPHER PUGH,
Petitioner,
v.
Case No. 3:14-cv-638-J-39JBT
SECRETARY, DOC, et al.,
Respondents.
ORDER
I.
INTRODUCTION
Petitioner George Christopher Pugh challenges a 2009, Duval
County, conviction for sale or delivery of cocaine. Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (Petition) (Doc. 1) at 1.
He raises two grounds.
The
Court will address these grounds, See Clisby v. Jones, 960 F.2d
925, 936 (11th Cir. 1992), but no evidentiary proceedings are
required in this Court.
Respondents filed a Response to Petition for Habeas Corpus
(Response) (Doc. 9).
In support of their Response, they submitted
Exhibits (Doc. 9).1
Petitioner filed a Reply to the State's
1
The Court hereinafter refers to the exhibits contained in
the Exhibits 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. The Court will reference the page
numbers assigned by the electronic docketing system where
applicable.
Response (Reply) (Doc. 14).
See Order (Doc. 6).
calculate that the Petition is timely filed.
II.
Respondents
Response at 1-3.
CLAIMS OF PETITION
Petitioner raises two grounds in his Petition: (1) ineffective
assistance of counsel for failure to adequately and timely file a
motion to dismiss concerning Petitioner's detention for a period of
45 days without being charged, and (2) trial court error for
sentencing Petitioner to twenty-five years in prison as an habitual
felony offender although Petitioner did not meet the habitual
offender criteria.
Respondents urge this Court to find that
Petitioner failed to allege a violation of a federal right in his
first ground, and raised a state law claim in his second ground
that is not cognizable in federal habeas court.
III.
Response at 3-7.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs a state prisoner's federal petition for habeas
corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), petition
for cert. filed, – U.S. - (U.S. Oct. 14, 2016) (No. 16-6444).
"'The purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the state
criminal justice systems, and not as a means of error correction.'"
Id. (quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).
Under
AEDPA,
when
a
state
court
adjudicated the petitioner's claim on
- 2 -
has
the
merits, a federal court may not grant habeas
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States," 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding," id. §
2254(d)(2). A state court's factual findings
are presumed correct unless rebutted by clear
and convincing evidence.[2] Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th
Cir. 2011).
..."It bears repeating that even a strong case
for relief does not mean the state court's
contrary
conclusion
was
unreasonable."
[Harrington v. Richter, 562 U.S. 86, 101
(2011)] (citing Lockyer v. Andrade, 538 U.S.
63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144
(2003)). The Supreme Court has repeatedly
instructed lower federal courts that an
unreasonable application of law requires more
than mere error or even clear error. See,
e.g., Mitchell v. Esparza, 540 U.S. 12, 18,
124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer,
538 U.S. at 75 ("The gloss of clear error
fails to give proper deference to state courts
by conflating error (even clear error) with
unreasonableness."); Williams v. Taylor, 529
U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000) ("[A]n unreasonable application of
federal law is different from an incorrect
application of federal law.").
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253–54 (11th Cir. 2013),
cert. denied, 135 S.Ct. 67 (2014).
2
"This presumption of correctness applies equally to factual
determinations made by the 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)).
- 3 -
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235
(11th Cir. 2016) (en banc), petition for cert. filed, - U.S. (U.S. Nov. 10, 2016) (No. 16-6855); Marshall v. Sec'y, Fla. Dep't
of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016).
Regardless of
whether the last state court provided a reasoned opinion, "it may
be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural
principles to the contrary."
Richter, 562 U.S. at 99; see also
Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013).
Where the last adjudication on the merits is "'unaccompanied
by an explanation,' a petitioner's burden under section 2254(d) is
to 'show [ ] there was no reasonable basis for the state court to
deny relief.'" Wilson, 834 F.3d at 1235 (quoting Richter, 562 U.S.
at 98). "[A] habeas court must determine what arguments or theories
supported or, as here, could have supported, the state court's
decision; and then it must ask whether it is possible fairminded
jurists
could
disagree
that
those
arguments
or
theories
are
inconsistent with the holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; see also Wilson, 834 F.3d at 1235;
Marshall, 828 F.3d at 1285. To determine which theories could have
supported the state appellate court's decision, the federal habeas
court may look to a state trial court's previous opinion as one
- 4 -
example of a reasonable application of law or determination of
fact; however, the federal habeas court is not limited to assessing
the reasoning of the lower court.
Wilson, 834 F.3d at 1239. As
such,
even when the opinion of a lower state court
contains flawed reasoning, [AEDPA] requires
that [the federal court] give the last state
court to adjudicate the prisoner's claim on
the merits "the benefit of the doubt," Renico
[v. Lett, 449 U.S. 766, 733 (2010)] (quoting
[Woodford v. Visciotti, 537 U.S. 19, 24
(2002)] ), and presume that it "follow[ed] the
law," [Woods v. Donald, ––– U.S. ––––, 135
U.S. 1372, 1376 (2015)] (quoting Visciotti,
537 U.S. at 24).
Wilson at 1238; see also Williams, 133 S.Ct. at 1101 (Scalia, J.,
concurring).
IV.
Respondents
Response.
provide
PROCEDURAL HISTORY
a
Response at 1-3.
brief
history
in
their
Petitioner accepts this procedural
history as accurately presented.
V.
procedural
Reply at 1.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In his first ground, Petitioner claims ineffective assistance
of counsel for failure to adequately and timely file a motion to
dismiss concerning Petitioner's detention for a period of 45 days
without being charged.
Petition at 5.
Petitioner states:
Defendant was arrested on 11/22/2008, and
was held in county jail (Duval County, FL)
without being formally charged by the State of
Florida until January 5, 2009, a total of 45
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days. Defendant repeatedly advised his trial
counsel about this violation of criminal
procedures
governing
the
detention
of
offenders without being formally charged,
counsel failed to move the court for a
dismissal and discharge of Defendant.
Id.
In ground one, Petitioner raises a claim of ineffective
assistance of trial counsel. Id. Petitioner exhausted this ground
by raising it in his Rule 3.850 motion.
Ex. H at 6.
The trial
court denied relief, id. at 11, and the First District Court of
Appeal per curiam affirmed.
Ex. K.
This Court must be mindful that in order to prevail on this
Sixth Amendment claim, Petitioner must satisfy the two-pronged test
set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984),
requiring
that
he
show
both
deficient
performance
(counsel's
representation fell below an objective standard of reasonableness)
and prejudice (there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different).
Of note, on March 20, 2009, the circuit court conducted a
motion for release hearing addressing the delay in filing the
information.
Ex. A at 79-86.
Defense counsel argued that the
division was in session on January 2, 2008, the fortieth day, but
the information is dated January 5, 2008.
Id. at 82.
The circuit
court, after hearing argument, denied the motion for release.
at 86.
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Id.
In denying the Rule 3.850 motion, the circuit court opined:
Defendant's second claim asserts that his
counsel was ineffective for failing to file a
motion to dismiss the charges against him,
providing that the basis for the motion was
the fact that charges were not filed until
Defendant was in jail for forty-seven (47)
days. This Court notes that had counsel filed
a motion to dismiss, the State could have
filed a traverse pursuant to Rule 3.190(d)
denying material facts alleged in the motion,
which would have required the Court to deny
the motion.
State v. Kalogeropolous, 758
So.2d 110, 111 (Fla. 2000); Whitted v. State,
992 So.2d 352, 353 (Fla. 4th DCA 2008).
Therefore, the Defendant has failed to show
the necessary prejudice to prevail on this
claim. Strickland, 466 U.S. at 687. Further,
even if the State did not file a traverse to
the motion, the Defendant has failed to
establish prejudice because his allegations do
not support dismissal of the charges.
Ex. H at 11.
Petitioner appealed, Ex. I, and the state filed a notice that
it would not file an answer brief.
Ex. J.
The First District
Court of Appeal per curiam affirmed on November 8, 2012.
The mandate issued on December 4, 2012.
Respondents
contend
that
violation of a federal right.
Ex. K.
Ex. PD-2 at 13.
Petitioner
Response at 4.
does not allege a
In order to address
this claim, the Court must be mindful of the purpose of a federal
habeas proceeding: to review the lawfulness of 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).
There has been no breach of a
federal constitutional mandate in the instant case.
- 7 -
Under
the
circumstances,
Petitioner
was
not
dismissal under the United States Constitution.
entitled
to
Indeed, Rule
3.134, Fla. R. Crim. P., "does not mandate a defendant's automatic
release if the state files an information or indictment after the
[designated] filing period has expired but before the court hears
the defendant's motion for release."
Valdez v. Tramel, 581 So.2d
161, 162 (Fla. 1991) (relying on the holding in Bowens v. Tyson,
578 So.2d 696 (Fla. 1991)).
As noted in Bowens, 578 So.2d at 697,
the underlying purpose of the rule is to force the state to bring
formal charges as soon as practical after an arrest.
If Petitioner's counsel had filed a motion to dismiss, the
state could have filed a traverse to address the request for
Boler v. State, 678 So.2d 319, 323 (Fla. 1996).
dismissal.
Significantly, even if defense counsel had filed motion for release
or to dismiss prior to the filing of the information, the state
would have had an opportunity to cure any error by filing an
information.
1997).
Ford v. Campbell, 697 So.2d 1301, 1303 (Fla. 1st DCA
Therefore,
even
assuming
counsel's
performance
was
deficient for failure to file a motion for release or to dismiss
prior to the filing of the information, there was no prejudice.
Respondents also adopt the state post conviction court's
reasoning on this issue.
Response at 5.
Petitioner is not
entitled to relief on this ground, the claim of ineffective
assistance of trial counsel. Deference under AEDPA should be given
the state court's decision affirming the denial of post conviction
- 8 -
relief.
The state court's adjudication of this claim is not
contrary to or an unreasonable application of Strickland, or based
on an unreasonable determination of the facts.
Ground one is due
to be denied.
B.
Ground Two
In his second ground, Petitioner claims the trial court erred
in sentencing Petitioner to twenty-five years in prison as an
habitual felony offender even though Petitioner did not meet the
habitual offender criteria.
Petition at 6.
He explains that he
was released from prison at 8:35 a.m. on November 22, 2003, and
arrested on November 22, 2008 at 21:45 (9:45 p.m.).
He urges this
Court to find that the trial court erred by considering his evening
offense on November 22, 2003, at 9:45 p.m., to be within five years
of his prior release from prison at 8:35 a.m., on November 22,
2003.
Initially, Petitioner attempted to raise this ground in his
Rule 3.850.
Ex. H at 6.
The circuit court rejected this claim
finding it not cognizable in a motion for post conviction relief.
Id. at 11-12.
The First District Court of Appeal affirmed per
curiam.
Thereafter, Petitioner raised this claim of trial
Ex. K.
court error in a Motion to Correct Illegal Sentence.
Ex. L.
Petitioner claimed that he could not be sentenced under the
habitual felony offender statute because five years, thirteen hours
and ten minutes passed between his release from prison and the
- 9 -
commission of his new offense.
Id. at 2.
The circuit court
addressed his claim as follows:
A defendant's classification as an HFO
will be upheld when the trial court relies
upon "record evidence presented to the court
in the form of certified copies of convictions
and 'original' court files" as support of any
prior convictions. Slade v. State, 898 So.2d
120, 120-21 (Fla. 4th DCA 2005).
With
reference to the five-year time frame for
classification as an HFO, the following
provides the relevant law:
(a) "Habitual felony offender" means
a defendant for whom the court may
impose
an
extended
term
of
imprisonment,
as
provided
in
paragraph (4)(a), if it finds that:
. . . 2. The felony for which the
defendant is to be sentenced was
committed:
. . .
(b) Within 5 years of the date of
the conviction of the defendant's
last prior felony or other qualified
offense, or within 5 years of the
defendant's release from a prison
sentence,
probation,
community
control,
control
release,
conditional
release,
parole
or
court-ordered or lawfully imposed
supervision or other sentence that
is imposed as a result of a prior
conviction for a felony or other
qualified offense, whichever is
later.
§ 775.084(1)(a)(2)b, Fla. Stat. See Turner v.
State, 91 So.3d 219, 220 (Fla. 3d DCA 2012).
(stating that "[t]he habitual offender statute
requires only that a defendant's last prior
felony (or release from imprisonment) . . . be
within five years of the date of the current
felony offense").
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In the instant case, in accordance with
Slade, the State properly provided the
original certified judgments and sentences in
case number 2000-CF-10956 and 2002-CF-2662,
and certified Department of Corrections
documents confirming Defendant's release was
on November 22, 2003. (Exs. C, D, E, F, G).
See Slade, 898 So.2d at 120-21. Based on the
HFO statute and case law cited above, the
actual
time
Defendant
was
released
is
irrelevant so long as the prior felony
conviction occurred within five years of the
date of the release from imprisonment.
As such, the Court finds the Defendant
was properly habitualized as Defendant's
release in case number 2002-CF- 2662 occurred
within five years of the commission of the
instant Sale or Delivery of Cocaine offense.
See Turner, 91 So.3d at 220.
Based on the
record cited herein, Defendant was released
from jail on November 22, 2003, which is
within five years of the instant offense that
was
committed
(and
by
Defendant's
own
admission in the instant Motion) on November
22, 2008. (Ex. H). § 775.084(1)(a)(2)b, Fla.
Stat. Therefore, Defendant's release in case
number 2002-CF-2262 qualifies as a release
from a prior conviction within five years of
the instant felony commission of the crime.
See id. Because the State complied with the
law in presenting evidence of the prior felony
conviction release in classifying Defendant as
an
HFO,
Defendant's
classification
and
sentence as an HFO must stand.
This Court
denies Defendant's claim in the instant
Motion.
Ex. N at 14-15 (emphasis added).
Also, the Court found the Motion to Correct to be frivolous
and
cautioned
Petitioner
that
he
could
be
continued to file frivolous pro se motions.
sanctioned
Id. at 15.
if
he
The
circuit court attached the certified documents showing the release
- 11 -
date of November 22, 2003 and the date of the instant felony
commission of the crime on November 22, 2008.
Petitioner appealed this decision.
Id. at 17-44.
Id. at 46-47; Ex. M. The
First District Court of Appeal affirmed per curiam on March 10,
2014.
Ex. N.
Petitioner moved for rehearing, and the appellate
court denied rehearing on April 21, 2014.
the mandate issued.
Ex. O.
On May 7, 2014,
Ex. P.
Upon review, Florida decisions support the reasoning of the
circuit court in rejecting Petitioner claim of trial court error.
See Edwards v. State, 743 So.2d 76 (Fla. 5th DCA 1999) (pointing
out that the habitual felony offender statute only requires that
the last prior felony conviction, or release from prison, "be
within five years of the date of the current offense"); Clark v.
State, 681 So.2d 816 (Fla. 5th DCA 1996) (per curiam) (holding
same); and Turner v. State, 91 So.3d 219, 220 n.1 (Fla. 3rd DCA
2012) (same language).
Moreover, the trial court relied on
certified copies of official records.
Moncus v. State, 69 So.3d
341, 343 (Fla. 4th DCA 2011) (certified copies and official court
records required for enhancement purposes); Slade v. State, 898
So.2d 120 (Fla. 4th DCA 2005) (per curiam) (affirming reliance on
record evidence of certified copies of convictions and court files
to support finding of habitual offender status).
In their Response, Respondents assert that ground two is not
cognizable in federal habeas corpus proceedings.
Upon
review,
this
ground
certainly
- 12 -
Response at 6.
involves
statutory
interpretation of a state law by state courts.
corpus
under
28
U.S.C.
State-created rights."
§
2254
"was
not
The writ of habeas
enacted
to
enforce
Cabberiza v. Moore, 217 F.3d 1329, 1333
(11th Cir. 2000) (citing Branan v. Booth, 861 F.2d 1507, 1508 (11th
Cir. 1988)), cert. denied, 531 U.S. 1170 (2001).
The Eleventh Circuit allows that only in cases of federal
constitutional error will a federal writ of habeas corpus be
available.
See Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir.
1993); Krasnow v. Navarro, 909 F.2d 451, 452 (11th Cir. 1990).
As
such, federal habeas relief does not lie for errors of state law.
It is not the province of a this Court to reexamine state-court
determinations on issues of state law. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991).
"This limitation on federal habeas review
is of equal force when a petition, which actually involves state
law issues, is 'couched in terms of equal protection and due
process.'"
Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)
(quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir.
1976)).
Florida
The federal habeas corpus court will be bound by the
court's
interpretation
of
its
own
laws
unless
that
interpretation breaches a federal constitutional mandate. McCoy v.
Newsome, 953 F.2d 1252, 1264 (11th Cir. 1992) (per curiam), cert.
denied, 504 U.S. 944 (1992).
Since ground two presents an issue that is not cognizable in
this habeas proceeding, this ground cannot provide a basis for
federal habeas corpus relief.
Reviewing this ground, there is no
- 13 -
breach of a federal constitution mandate.
Therefore, the claim
raised in ground two is due to be denied.
Alternatively, even if this claim were cognizable on federal
review, Petitioner is not entitled to relief.
The state circuit
court found that the state complied with the law in presenting
evidence of the prior felony conviction release.
appellate court affirmed.
Ex. N.
Ex. L at 15.
The
The state court's adjudication
of this claim was not contrary to clearly established 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 the light of the evidence presented in state court
proceedings.
Accordingly, 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 accordingly
and close this case.
3.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.3
3
Because this Court
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
- 14 -
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 25th day of
January, 2017.
sa 1/24
c:
George Christopher Pugh
Counsel of Record
(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.
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