Glen v. Secretary, Florida Department of Corrections et al
Filing
27
ORDER Denying Petition 1 and Denying Supplemental Petition 18 and Dismissing Case with Prejudice; with directions to the Clerk. Signed by Judge Timothy J. Corrigan on 8/6/2018. (ACT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CHARLES TERRY GLEN,
Petitioner,
v.
Case No. 3:15-cv-525-J-32JBT
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I.
Status
Petitioner Charles Glen, an inmate of the Florida penal system, initiated this
action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by
a Person in State Custody (Doc. 1; Petition) on April 21, 2015.1 Glen challenges a 2012
state court (Duval County, Florida) conviction for the sale or delivery of cocaine. The
circuit court sentenced Glen to incarceration for a term of nine years.
The Petition raises one ground for relief. See Doc. 1 at 5. Respondents filed a
Response to the Petition. See Answer to Petition for Writ of Habeas Corpus (Doc. 15;
Resp.) with exhibits (Resp. Ex.). On March 1, 2017 Glen requested to supplement the
Petition with three additional grounds for relief. See Doc. 18 (Supplemental Petition).
The Court granted Glen’s request to supplement. See Doc. 21. Respondents filed a
1
See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
Supplemental Response on August 24, 2017. See Respondents’ Response to
Supplemental Petition for Writ of Habeas Corpus (Doc. 22; Supp. Resp.). Glen filed a
pro se Reply. See Response to Respondent’s Response (Doc. 25; Reply). This case is
ripe for review.
II.
Relevant Procedural History
A jury convicted Glen of the sale or delivery of cocaine on January 10, 2012.
Resp. Exs. 4; 5. On February 24, 2012, the circuit court sentenced Glen as a Habitual
Felony Offender (HFO) to incarceration for a term of nine years. Resp. Ex. 6 at 52-53;
7 at 4-5. The First District Court of Appeal (First DCA) per curiam affirmed Glen’s
conviction and sentence on December 19, 2012 without a written opinion. Resp. Ex.
11. The Mandate was issued on January 4, 2013. Resp. Ex. 11.
On April 26, 2013, Glen filed a Motion for Postconviction Relief pursuant to
Florida Rule of Criminal Procedure 3.850. Resp. Ex. 14. Glen filed an amended Rule
3.850 Motion on March 8, 2014. Resp. Ex. 15. The circuit court denied Glen’s Rule
3.850 Motions on July 2, 2014. Resp. Ex. 16. The First DCA per curiam affirmed the
summary denial on October 30, 2014 without a written opinion. Resp. Ex. 20. The
Mandate was issued on November 25, 2014. Id.
III.
Governing Legal Principles
A. One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended
28 U.S.C. § 2244 by adding the following subsection:
2
(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).
B. Standard Under AEDPA
The AEDPA governs a state prisoner’s federal habeas corpus petition. See
Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th
Cir. 2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure
that federal habeas relief functions as a guard against extreme malfunctions in the
3
state criminal justice systems, and not as a means of error correction.’” Id. (quoting
Greene v. Fisher, 565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See Marshall v.
Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need
not issue an opinion explaining its rationale in order for the state court’s decision to
qualify as an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 100
(2011). Where the state court’s adjudication on the merits is unaccompanied by an
explanation,
the federal court should “look through” the unexplained
decision to the last related state-court decision that does
provide a relevant rationale. It should then presume that
the unexplained decision adopted the same reasoning. But
the State may rebut the presumption by showing that the
unexplained affirmance relied or most likely did rely on
different grounds than the lower state court’s decision, such
as alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the record
it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a federal
court cannot grant habeas relief unless the state court’s adjudication of the claim was
“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,” 28 U.S.C. § 2254(d)(1), (2). A state court’s factual findings are
4
“presumed to be correct” unless rebutted “by clear and convincing evidence.” Id. §
2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that statecourt decisions be given the benefit of the doubt.” Renico v.
Lett, 559 U.S. 766, 773 (2010) (internal quotation marks
omitted). “A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(internal quotation marks omitted). “It bears repeating that
even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. [at 102] (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (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 (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 (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) (internal citations
modified).
C. Exhaustion and Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254
habeas action in federal court, a petitioner must exhaust all state court remedies that
are available for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To
exhaust state remedies, the petitioner must “fairly present[]” every issue raised in his
federal petition to the state’s highest court, either on direct appeal or on collateral
review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to
5
properly exhaust a claim, “state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C. §
2254(b)(1), thereby giving the State the “‘“opportunity to
pass upon and correct” alleged violations of its prisoners’
federal rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S.
Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard
v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the necessary
“opportunity,” the prisoner must “fairly present” his claim
in each appropriate state court (including a state supreme
court with powers of discretionary review), thereby alerting
that court to the federal nature of the claim. Duncan, supra,
at 365-366, 115 S. Ct. 887; O’Sullivan v. Boerckel, 526 U.S.
838, 845, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner’s failure to properly exhaust available state remedies results
in a procedural default which raises a potential bar to federal habeas review. The
United States Supreme Court has explained the doctrine of procedural default as
follows:
Federal habeas courts reviewing the constitutionality of a
state prisoner’s conviction and sentence are guided by rules
designed to ensure that state-court judgments are accorded
the finality and respect necessary to preserve the integrity
of legal proceedings within our system of federalism. These
rules include the doctrine of procedural default, under
which a federal court will not review the merits of claims,
including constitutional claims, that a state court declined
to hear because the prisoner failed to abide by a state
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procedural rule. See, e.g., Coleman,[2] supra, at 747–748,
111 S. Ct. 2546; Sykes,[3] supra, at 84–85, 97 S. Ct. 2497. A
state court’s invocation of a procedural rule to deny a
prisoner’s claims precludes federal review of the claims if,
among other requisites, the state procedural rule is a
nonfederal ground adequate to support the judgment and
the rule is firmly established and consistently followed. See,
e.g., Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–
1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, -, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417 (2009). The
doctrine barring procedurally defaulted claims from being
heard is not without exceptions. A prisoner may obtain
federal review of a defaulted claim by showing cause for the
default and prejudice from a violation of federal law. See
Coleman, 501 U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be excused
under certain circumstances. Notwithstanding that a claim has been procedurally
defaulted, a federal court may still consider the claim if a state habeas petitioner can
show either (1) cause for and actual prejudice from the default; or (2) a fundamental
miscarriage of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for
a petitioner to establish cause and prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly attributable to
his own conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258
(11th Cir. 1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct.
2639).[4] Under the prejudice prong, [a petitioner] must
show that “the errors at trial actually and substantially
disadvantaged his defense so that he was denied
fundamental fairness.” Id. at 1261 (quoting Carrier, 477
U.S. at 494, 106 S. Ct. 2639).
Coleman v. Thompson, 501 U.S. 722 (1991).
Wainwright v. Sykes, 433 U.S. 72 (1977).
4 Murray v. Carrier, 477 U.S. 478 (1986).
7
2
3
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may receive
consideration on the merits of a procedurally defaulted claim if the petitioner can
establish that a fundamental miscarriage of justice, the continued incarceration of one
who is actually innocent, otherwise would result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive consideration
on the merits of his procedurally defaulted claim. “[I]n an
extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural
default.” Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This
exception is exceedingly narrow in scope,” however, and
requires proof of actual innocence, not just legal innocence.
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it is more
likely than not that no reasonable juror would have convicted him’ of the underlying
offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual
innocence must be based on reliable evidence not presented at trial.” Calderon v.
Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity
of such evidence, in most cases, allegations of actual innocence are ultimately
summarily rejected. Schlup, 513 U.S. at 324.
D. Ineffective Assistance of Counsel
“The Sixth Amendment guarantees criminal defendants effective assistance of
counsel. That right is denied when a defense counsel’s performance falls below an
8
objective standard of reasonableness and thereby prejudices the defense.” Yarborough
v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510,
521 (2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
ineffective assistance, a person must show that: (1) counsel’s performance was outside
the wide range of reasonable, professional assistance; and (2) counsel’s deficient
performance prejudiced the challenger in that there is a reasonable probability that
the outcome of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 687.
Notably, there is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010).
Since both prongs of the two-part Strickland test must be satisfied to show a Sixth
Amendment violation, “a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing Holladay v.
Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.” 466 U.S. at 697.
“The question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether that
determination was unreasonable - a substantially higher threshold.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is “any
reasonable argument that counsel satisfied Strickland’s deferential standard,” then a
federal court may not disturb a state-court decision denying the claim. Richter, 562
9
U.S. at 105. As such, “[s]urmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Reviewing courts apply a ‘strong
presumption’ that counsel’s representation was ‘within the wide range of reasonable
professional assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262
(11th Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is
combined with § 2254(d), the result is double deference to the state court ruling on
counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y,
Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,
concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
IV.
Analysis
A. Petition – Ground One
Glen timely filed the Petition within the one-year limitations period. See 28
U.S.C. § 2244(d).
In Ground One, Glen contends that the circuit court’s denial of his motion for
judgment of acquittal violated his federal constitutional right to due process of law.
Doc. 1 at 5-6. According to Glen, the state failed to present legally sufficient evidence
establishing the identity of Glen as the individual who sold cocaine to Detective Heirs.
Id. at 5. In support of this argument, Glen claims that the state relied on Detective
Heirs’ in-court identification of Glen; however, his identification was questionable
because it occurred eleven months after the drug transaction. Id. Glen also notes that
although the state presented a video of the undercover buy during trial, relevant
portions of the video were inaudible and not visible. Id. Based on these alleged
10
infirmities, Glen claims the circuit court unreasonably denied his motion for judgment
of acquittal based on unreliable and legally insufficient evidence.
Respondents submit that Glen failed to fairly present the federal nature of this
claim in state court, and as such, the claim is unexhausted and procedurally defaulted.
Resp. at 14-15. In the alternative, Respondents assert the claim lacks merit. Id. at 1621.
In reviewing the record, the Court finds this claim is unexhausted because Glen
did not present the federal nature of this claim to the state appellate court. Glen raised
a similar claim on direct appeal. Resp. Ex. 9 at 5-12. When briefing this issue, however,
Glen did not state or suggest that it was a federal claim concerning due process or any
other federal constitutional guarantee. Id. Instead, Glen argued, in terms of state law
only, that the circuit court erred in denying his motion for judgment of acquittal. Id.
at 6-7 (citing Durham v. State, 738 So. 2d 477 (Fla. 5th DCA 1999); McDuffie v. State,
970 So. 2d 312, 332 (Fla. 2007); Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002);
Williams v. State, 967 So. 2d 735 (Fla. 2007)). As such, Ground One is unexhausted
and procedurally defaulted, and Glen has failed to show cause for or prejudice from
this procedural bar.
Nevertheless, even if this claim was exhausted, Ground One would fail on the
merits, as the prosecution presented sufficient evidence for a rational trier of fact to
conclude that Glen committed the offense. At trial, Detective Heirs testified that he
received training in undercover techniques and was on the Narcotics Division for four
years. Resp. Ex. 4 at 140-41. Detective Heirs testified that aside from the four to five
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minutes when Glen went inside an apartment to retrieve the cocaine, Detective Heirs
observed Glen in close proximity for ten to twelve minutes during the transaction. Id.
at 147-49. Detective Heirs explained that he was certain Glen was the individual that
sold him cocaine. Id. at 168.
Furthermore, Detective Heirs video recorded the drug transaction, and the
state presented the recording to the jury during trial. Id. at 152-65. Although portions
of the recording were inaudible and the video quality was poor, significant portions of
the recording were clear as Detective Heirs was able to identify Glen’s voice and image
in the video at trial. Id.
Detective Heirs also testified that Glen’s apartment complex provided him with
a copy of Glen’s picture identification. Id. at 167. Upon receiving the copy of the
identification, Detective Heirs confirmed it was the same individual from whom he
had purchased the cocaine. Id. Moreover, Detective Heirs testified that the apartment
number listed under Glen’s name was the same apartment in which he had previously
purchased cocaine from Glen. Id. at 174.
Given this record, which includes direct eyewitness testimony from Detective
Heir who specifically interacted with and bought cocaine from Glen and a recording
corroborating Detective Heir’s testimony, the Court finds the evidence is sufficient to
show any trier of fact could have found beyond a reasonable doubt that Glen committed
the offense. Accordingly, Glen is not entitled to relief on Ground One.
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B. Supplemental Petition – Grounds Two, Three, and Four
Respondents assert that the Supplemental Petition is untimely filed and fails
to relate back to the Petition. See Supp. Resp. at 2-12, 19-22, 26-29. Glen appears to
concede that he filed his Supplemental Petition outside his AEDPA, one-year statute
of limitations, but argues that his claims relate back to the Petition. Reply at 2. In the
alternative, Glen asserts he is entitled to equitable tolling because he is legally blind,
pro se, and relied on prison law clerks. Id. at 2-3.
“An amendment to a pleading relates back to the date of the original pleading
when . . . the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out--or attempted to be set out--in the original pleading.”
Fed. R. Civ. P. 15(c)(1)(B). An amendment to a habeas petition may relate back “[s]o
long as the original and amended petitions state claims that are tied to a common core
of operative facts.” Mayle v. Felix, 545 U.S. 644, 664 (2005). A new claim, however,
does not meet the standard and, thus, “does not relate back . . . when it asserts a new
ground for relief supported by facts that differ in both time and type from those the
original pleading set forth.” Id. at 650. The terms “conduct, transaction, or occurrence”
are not synonymous with “trial, conviction or sentence.” Id. at 664.
“When a prisoner files for habeas corpus relief outside the one-year limitations
period, a district court may still entertain the petition if the petitioner establishes that
he is entitled to equitable tolling.” Damren v. Florida, 776 F.3d 816, 821 (11th Cir.
2015). The United States Supreme Court established a two-prong test for equitable
tolling of the one-year limitations period, stating that a petitioner “must show (1) that
13
he has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way and prevented timely filing.” Lawrence v. Florida, 549
U.S. 327, 336 (2007); see Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir.
2017) (recognizing equitable tolling is an extraordinary remedy “limited to rare and
exceptional circumstances and typically applied sparingly”); see also Brown v. Barrow,
512 F.3d 1304, 1307 (11th Cir. 2008)(per curiam) (noting the Eleventh Circuit “held
that an inmate bears a strong burden to show specific facts to support his claim of
extraordinary circumstances and due diligence.” (citation omitted)).
a. Ground Two
Glen avers counsel was ineffective for failing to argue a viable defense of
entrapment at trial. Doc. 18 at 3-7.
Ground Two does not relate back to the Petition. Although both Grounds One
and Two concern conduct, or the lack thereof, that occurred at trial, Ground Two also
calls into question counsel’s pre-trial preparation and strategy. Specifically, according
to Glen in Ground Two, he informed counsel prior to trial of facts that would have
allegedly supported an entrapment defense. Doc. 18 at 3-4, 6. As such, part of Glen’s
allegations in Ground Two stem from counsel’s pre-trial investigation and
development of strategy. Thus, Ground Two differs in time from Ground One as part
of the alleged error occurred prior to trial.
Furthermore, the claims are not similar in type because they involve different
actors allegedly committing different errors. Ground Two is premised on counsel’s
alleged deficiencies, not the circuit court’s errors, and the error in Ground Two is based
14
on a failure to formulate and argue a defense rather than an error in determining the
sufficiency of the evidence. Therefore, Ground Two does not arise from the same
common “core of operative facts” as Ground One. Mayle, 125 545 U.S. at 664.
Having established that Ground Two does not relate back, the Court now
addresses Glen’s claim of equitable tolling. Glen contends that he could not diligently
pursue Ground Two because the prison did not provide legal materials for blind
inmates until 2017. Reply at 2-3. However, Glen first raised this claim of ineffective
assistance of counsel in his Rule 3.850 Motions filed on April 26, 2013, and March 8,
2014. Resp. Exs. 14 at 9-12; 15 at 9-12. As mentioned above, the circuit court
summarily denied this issue on July 2, 2014, and the First DCA affirmed the circuit
court denial, issuing its Mandate on November 25, 2014. Resp. Exs. 16; 20. Glen’s
AEDPA one-year period then expired on November 25, 2015. Glen did not file the
Supplemental Petition until March 1, 2017, 462 days after his AEDPA one-year period
expired. Doc. 18. This extensive delay is not indicative of diligence and Glen’s alleged
ignorance of the law does not excuse his failure to diligently pursue this claim. See
Howell v. Crosby, 415 F.3d 1250, 1252 (11th Cir. 2005) (refusing to apply equitable
tolling where petitioner could not “establish his own due diligence in ascertaining the
federal habeas filing deadline.). As such, Glen could have timely filed this claim with
the use of reasonable diligence.
However, even assuming Glen diligently pursued this claim, he has failed to
establish extraordinary circumstances prohibited him from timely filing Ground Two.
Glen’s blindness does not constitute an extraordinary circumstance. See Smith v.
15
Beightler, 49 Fed. Appx. 579, 580-81 (6th Cir. 2002) (holding Smith’s argument he was
entitled to equitable tolling because he was blind and must rely on others to assist him
did “not meet the standards required for invocation of equitable tolling, as it does not
establish that Smith lacked knowledge of the filing requirement, that he was diligent
in pursuing his rights, or that the respondent would not be prejudiced by the delay.”).
Indeed, despite his blindness, Glen timely filed his Petition and timely filed a Rule
3.850 Motion raising this exact ground.
Furthermore, as to Glen’s claim that he is entitled to equitable tolling because
he is pro se and must rely on prison law clerks, this claim fails as a matter of law. See
Whiddon v. Dugger, 894 F.2d 1266, 1267 (11th Cir. 1990) (holding a petitioner’s pro se
status and poor advice by inmate law clerks did not establish cause for purposes of
overcoming procedural default); see also Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.
2000)
(allegedly
inadequate
law
library
does
not
establish
extraordinary
circumstances warranting equitable tolling of the limitations period); Marsh v. Soares,
223 F.3d 1217, 1220 (10th Cir. 2000) (neither inmate's ignorance of the law, nor
inadequacy of services of inmate law clerk who helped draft habeas petition, nor fact
that prison law library was closed for 15 days entitled petitioner to equitable tolling of
limitations period). For the above stated reasons, Glen is not entitled to equitable
tolling.
To the extent, Glen attempts to overcome the time bar by alleging a miscarriage
of justice/actual innocence exception, the Court finds Glen does not state a colorable
claim of actual innocence. Specifically, Glen does not assert that he has “new” reliable
16
evidence of factual innocence and there is nothing in the record to suggest a
miscarriage of justice will occur if the Court does not reach the merits of this claim.
See Schlup v. Delo, 513 U.S. 298, 327 (1995). Accordingly, for the above stated reasons,
Ground Two is untimely.
b. Ground Three
Glen contends that counsel was ineffective for failing to adequately argue a
motion for judgment of acquittal. See Supp. at 8-11.
The question of whether Ground Three relates back is a closer call than Ground
Two. While there can be no real dispute that a claim regarding trial court error is
entirely different than a claim alleging ineffective assistance of counsel, Ground Three
does share a common core of operative facts with Ground One. The timing of the
underlying event of each claim relates to the same occurrence at trial, the presentation
of the motion for judgment of acquittal. However, the claims are not of the same type
because they involve different actors allegedly committing different errors. Ground
One concerns the circuit court’s alleged unreasonable determination and application
of the facts in denying the motion for judgment of acquittal, while Ground Three
concerns counsel’s failure to adequately articulate the motion for judgment of
acquittal. However, the Court acknowledges the operative facts of Ground Three do
bear some nexus to Ground One; therefore, in an abundance of caution, the Court finds
Ground Three does relate back to the Petition.
17
Nevertheless, the state court’s adjudication of this claim is entitled to deference.
Glen raised Ground Three in his Rule 3.850 Motions. Exs. 14 at 12-15; 15 at 12-15.
The circuit court denied the claim on the merits, concluding the following:
Initially, this Court notes that counsel argued that the
limited amount of time that Detective Heirs spent with
Defendant “does not rise to the level of proof necessary for
the State to make a prima facie case that it was, in fact,
[Defendant] that made the transaction.” Additionally,
Detective Heirs testified that he spent ten to fifteen minutes
with Defendant on the day of the transaction. While in the
courtroom, Detective Heirs identified Defendant as the
individual who sold him crack cocaine. Detective Heirs also
identified Defendant as the individual depicted in the video
of the transaction.
....
Defendant’s claim that counsel failed to argue the proper
grounds in his Motion for Judgment of Acquittal is
meritless. There is no reasonable probability that, had
counsel argued as Defendant suggests, the trial court would
have granted the motion. Accordingly, Defendant has failed
to establish that he was prejudiced by counsel’s alleged
errors of. [sic] “Although in hindsight one can speculate that
a different argument may have been more effective,
counsel’s argument does not fall to the level of deficient
performance simply because it ultimately failed.” Ferguson
v. State, 593 So. 2d 508, 511 (Fla. 1992); see Neal v. State,
854 So. 2d 666, 670 (Fla. 2d DCA 2003) (“Where there is no
showing that a motion for judgment of acquittal had a
likelihood of success, a movant has not presented a facially
sufficient claim of ineffectiveness of counsel.”)
Resp. Ex. 16 at 5-6 (citations to record omitted). The First DCA per curiam affirmed
the denial without a written opinion. Resp. Ex. 20.
18
To the extent that the First DCA affirmed the circuit court’s denial on the
merits,5 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. After a 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 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, Glen is not entitled to relief on the basis of this claim.
Even if the state court’s adjudication of this claim is not entitled to deference,
Glen is still not entitled to the relief he seeks. As the Court outlined in its analysis of
Ground One above, there was legally sufficient evidence to present the case to the jury.
Therefore, regardless of how well articulated or detailed the motion for judgment of
acquittal could have been, it would have nonetheless failed. Accordingly, Glen cannot
demonstrate prejudice and is not entitled relief to relief on this claim. See Strickland,
466 U.S. at 697.
c. Ground Four
Glen contends that the cumulative effect of counsel’s errors prejudiced him. Doc.
18 at 12-13.
Ground Four does not relate back to the Petition as it does not share the same
common core of operative facts. Ground One’s claim of trial court error did not place
In looking through the appellate court’s per curiam affirmance to the circuit
court’s “relevant rationale,” the Court presumes that the appellate court “adopted the
same reasoning.” Wilson, 138 S. Ct. at 1194.
19
5
Respondents on notice that Glen was challenging the cumulative effects of counsel’s
errors.
Glen’s claim of equitable tolling is likewise without merit. Glen raised this claim
of cumulative error in his Rule 3.850 Motions filed on April 26, 2013, and March 8,
2014. Resp. Exs. 14 at 16; 15 at 16. The circuit court summarily denied this issue on
July 2, 2014, and the First DCA affirmed the circuit court denial, issuing its Mandate
on November 25, 2014. Resp. Exs. 16; 20. As mentioned above, Glen’s AEDPA, oneyear period expired on November 25, 2015. However, Glen did not file the
Supplemental Petition until March 1, 2017, 462 days after his AEDPA one-year period
expired. Doc. 18. This extensive delay is not indicative of diligence and Glen’s alleged
ignorance of the law does not excuse his failure to diligently pursue this claim. See
Howell, 415 F.3d at 1252. As such, Glen could have timely filed this claim with the use
of reasonable diligence. Moreover, for the reasons outlined above in the Court’s
analysis of Ground Two, Glen has failed to establish extraordinary circumstances
prohibited him from timely filing Ground Three.
To the extent, Glen attempts to overcome the time bar by alleging a miscarriage
of justice/actual innocence exception, the Court finds Glen does not state a colorable
claim of actual innocence. Specifically, Glen does not assert that he has “new” reliable
evidence of factual innocence and there is nothing in the record to suggest a
miscarriage of justice will occur if the Court does not reach the merits of this claim.
See Schlup, 513 U.S. at 327. Accordingly, for the above stated reasons, Ground Four
is untimely.
20
Accordingly, it is ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) and Supplemental Petition (Doc. 18) are DENIED
and this case is DISMISSED WITH PREJUDICE.
2.
The Clerk of Court shall enter judgment accordingly, terminate any
pending motions, and close this case.
3.
If Glen appeals this Order, the Court denies a certificate of appealability.
Because the 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.6
DONE AND ORDERED at Jacksonville, Florida, this 6th day of August, 2018.
TIMOTHY J. CORRIGAN
United States District Judge
Jax-8
C:
Charles Terry Glenn, #097427
Counsel of record
The 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, Glen “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)).
Here, after consideration of the record as a whole, the Court will deny a certificate of
appealability.
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6
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