Jones v. Secretary, Department of Corrections et al
ORDER denying 1 Petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 11/29/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CHIEVY N. JONES,
Case No. 3:15-cv-749-J-39MCR
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Petitioner Chievy N. Jones challenges a 1997 Duval County
conviction for first degree felony murder (count 1), two counts of
armed kidnaping (counts 2 & 3), and one count of armed robbery
(count 4). Petitioner raises three claims for habeas relief in his
Petition (Doc. 1).
Respondents filed an Answer in Response to
Order to Show Cause (Response) (Doc. 11) with supporting Exhibits
(Docs. 11 & 14).1
Petitioner filed a Reply to Respondents'
Response (Reply) (Doc. 12).
See Order (Doc. 4).
The Court hereinafter refers to the exhibits contained in
the Appendices as "Ex."
Where provided, the page numbers
referenced in this opinion are the Bates stamp numbers at the
bottom of each page of the exhibit. 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.
CLAIMS OF PETITION
Petitioner raises three grounds in his Petition:
imposition of an invalid, unlawful and illegal sentence for felony
murder; (2) the failure to reclassify armed robbery with a firearm,
resulting in an illegal habitual violent felony offender (HVFO)
designation; and (3) the trial court's error in failing to have a
Respondents urge this Court to deny the Petition. Response at
The Court will address the three grounds raised in the
Petition, see Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992),
but no evidentiary proceedings are required in this Court.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus. See
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied, 137 S.Ct. 1432 (2017).
"AEDPA limits the scope of federal
habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla.
Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017).
AEDPA ensures that federal habeas relief is limited to extreme
malfunctions, and not used as a means to attempt to correct state
Ledford, 818 F.3d at 642 (quoting Greene v. Fisher,
132 S.Ct. 38, 43 (2011)).
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The Eleventh Circuit recently outlined the parameters of
Thus, under AEDPA, a person in custody
pursuant to the judgment of a state court
shall not be granted habeas relief on a claim
"that was adjudicated on the merits in State
court proceedings" unless the state court's
decision was "contrary to, or involved an
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). "For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court—not Supreme Court dicta, nor the
opinions of this Court." Taylor v. Sec'y, Fla.
Dep't of Corr., 760 F.3d 1284, 1293–94 (11th
As for the "contrary to" clause, "a
federal habeas court may grant the writ if the
state court arrives at a conclusion opposite
to that reached by [the Supreme Court] on a
question of law or if the state court decides
a case differently than [the Supreme Court]
has on a set of materially indistinguishable
facts." Terry Williams v. Taylor, 529 U.S.
362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). Under the "unreasonable application"
clause, a federal habeas court may "grant the
writ if the state court identifies the correct
governing legal principle from [the Supreme
Court's] decisions but unreasonably applies
that principle to the facts." Id. at 413, 120
S.Ct. 1495. "In other words, a federal court
may grant relief when a state court has
misapplied a 'governing legal principle' to 'a
set of facts different from those of the case
in which the principle was announced.'"
Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003) (quoting Lockyer
v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166,
155 L.Ed.2d 144 (2003)). And "an 'unreasonable
application of' [Supreme Court] holdings must
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be objectively unreasonable, not merely wrong;
even clear error will not suffice." Woods v.
Donald, ––– U.S. ––––, 135 S.Ct. 1372, 1376,
191 L.Ed.2d 464 (2015) (per curiam) (quotation
omitted). To overcome this substantial hurdle,
"a state prisoner must show that the state
court's ruling on the claim being presented in
federal court was so lacking in justification
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 103, 131
S.Ct. 770, 178 L.Ed.2d 624 (2011). This is
"meant to be" a difficult standard to meet.
Id. at 102, 131 S.Ct. 770.
Pittman, 871 F.3d at 1243-44.
There is a presumption of correctness of state court's factual
28 U.S.C. § 2254(e)(1).
The standard of
proof is demanding, requiring that a claim be highly probable.
Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013), cert.
denied, 135 S.Ct. 67 (2014). Also, the trial court's determination
will not be superseded if reasonable minds might disagree about the
Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015).
Also of note, "[t]his presumption of correctness applies equally to
factual determinations made by the state trial and appellate
Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284
(11th Cir. 2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th
Cir. 2003)), cert. denied, 568 U.S. 1233 (2013).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
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Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
Once identified, the Court reviews the state court's
decision, "not necessarily its rationale."
Pittman, 871 F.3d at
1244 (quoting Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 785
(11th Cir. 2003) (citation omitted)).
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." Harrington v. Richter, 562
U.S. 86, 99 (2011). "The presumption may be overcome when there is
reason to think some other explanation for the state court's
decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
Id. at 98.
supported or, as here, could have supported, the state court's
decision; and then it must ask whether it is possible fairminded
As suggested by the Eleventh Circuit in Butts v. GDCP
Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), petition for cert.
filed, (U.S. Sept. 29, 2017) (No. 17-512), in order to avoid any
complications if the United States Supreme Court decides to
overturn Eleventh Circuit precedent as pronounced in Wilson v.
Warden, Ga. Diagnostic Prison, 834 F.3d 1227 (11th Cir. 2016) (en
banc), cert. granted, 137 S.Ct. 1203 (2017), this Court, will
employ "the more state-trial-court focused approach in applying §
2254(d)[,]" where applicable.
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inconsistent with the holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.
Although the § 2254(d) standard is difficult to meet, it was
meant to be difficult.
Rimmer v. Sec'y, Fla. Dep't of Corr., No.
15-14257, 2017 WL 5476795, at *11 (11th Cir. Nov. 15, 2017)
(opining that to reach the level of an unreasonable application of
federal law, the ruling must be objectively unreasonable, not
merely wrong or even clear error).
Indeed, in order to obtain
habeas relief, "a state prisoner must show that the state court's
ruling on the claim being presented . . . was so lacking in
comprehended in existing law beyond any possibility for fairminded
Richter, 562 U.S. at 103.
Respondents provide an in-depth procedural history in their
Response, Response at 2-16, and relevant Exhibits (Docs. 11 & 14).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In his first ground, Petitioner claims he was sentenced to an
Petition at 5.
In the supporting facts, he states: "[f]elony
murder conviction was committed during 95-182 and/or 95-184 were
[sic] Florida Supreme Court ruled it was unconstitutional and
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violates the single subject rule of Art. 3 Section (6) of Florida
With regard to the question of exhaustion, Respondents note
that Petitioner exhausted this ground by presenting it in the
direct appeal of his resentencing in a pro se brief, after his
counsel filed an Anders brief.3
Response at 25.
Ex. VV at 8; Ex.
The First District Court of Appeal (1st DCA) affirmed per
Ex. XX. The mandate issued on November 20, 2012.
Petitioner was charged with murder in the first degree, armed
possession of a firearm by a convicted felon.
Ex. A at 7-8.
state filed a Notice of Intent to Classify Defendant as a Habitual
Violent Felony Offender.
severed for trial.
Id. at 92.
Id. at 7.
The possession charge was
The jury trial began January 21,
1997. Ex. C. At trial, defense counsel recognized that Petitioner
had been charged in the alternative, premeditated or felony murder,
and counsel argued that a motion for judgment of acquittal should
be granted as to premeditated design on the murder count.
Ex. D at
The state countered this argument, asserting the issue of
determination which should be made by the jury upon deliberation.
Id. at 340.
The court agreed with the state and denied the motion
Anders v. California, 386 U.S. 738 (1967).
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for judgment of acquittal with respect to the premeditation issue,
as well as in all other respects.
Id. at 340-42.
The prosecutor, in closing arguments, stated there was a
robbery, Petitioner took the victim's property, and it was "felony
murder, plain and simple."
Id. at 387.
The prosecutor argued the
offense amounted to first degree felony murder.
Id. at 389.
reminded the jury that even if somebody else pulls the trigger, if
the killing is part of the robbery, it amounts to felony murder.
Id. at 392.
In its charge to the jury, the court provided instructions for
both premeditated and felony murder.
Ex. E at 440-42.
so, the court listed the elements of premeditated murder, followed
by the elements of first degree felony murder.
returned a verdict as to count one: guilty as charged in the
Id. at 479.
The verdict form did not allow for the
jury to distinguish its verdict between premeditated or felony
murder. Ex. A at 134. The verdict succinctly states the defendant
The Judgment simply references murder in the
Ex. A at 148.
Upon consideration, Petitioner's claim raised in ground one
has no merit because he does not have standing to challenge chapter
95-182 on single subject rule grounds with regard to his conviction
and sentence for murder in the first degree because he was not
sentenced as an HVFO on his conviction for first degree murder.
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Response at 28; Ex. A at 148-54.
See State v. Thompson, 750 So.2d
643, 649 (Fla. 1999) (per curiam).
Petitioner was convicted as an
HVFO only with regard to counts 2, 3, and 4, not count 1, the first
degree murder count.
Ex. A at 153.
The record reflects that he
was sentenced to a term of natural life without parole on count 1,
the crime of first degree murder.
Id. at 151.
In this instance, there is a qualifying state court decision
and AEDPA deference is warranted.
The adjudication of the state
court resulted in a decision that involved a reasonable application
of clearly established federal law, as determined by the United
States Supreme Court.
Therefore, Petitioner is not entitled to
habeas relief on ground one because the state court's decision 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 his second ground, Petitioner raises the following claim:
a failure to reclassify armed robbery with a firearm, resulting in
Respondents concede that Petitioner exhausted this ground in his
pro se brief on direct appeal of his resentencing.4
Ex. VV at 10.
Respondents contend that this ground is without
Petitioner raised this same contention in his Rule 3.800(a)
motion, Ex. HH, and the circuit court found that Petitioner's
conviction for armed robbery was properly adjudicated HVFO. Ex. JJ
at 12. See Ex. OO; Ex. XX.
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merit as armed robbery with a firearm is a first degree felony
punishable by life, and is therefore susceptible to an enhanced
sentence as an HVFO.
Response at 30.
The 1st DCA per curiam affirmed.
Its decision is due
Petitioner has failed to show that the state
court's ruling on the claim was so lacking in justification that
there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.
court's adjudication of this claim is not contrary to or an
unreasonable application of clearly established Federal law, or
based on an unreasonable determination of the facts.
two is due to be denied.
Petitioner raised this same issue in an Amended Rule 3.850
Motion for Post-Conviction Relief, couched in terms of ineffective
assistance of counsel.
Ex. CCC at 8-9.
In denying the amended
Rule 3.850 motion, the circuit court concluded "it is not illegal
to impose an HVFO designation on an armed robbery conviction." Id.
at 27 (citations omitted).
The 1st DCA affirmed.
mandate issued on April 23, 2015.
Of note, "first-degree felonies punishable by a term of years
not exceeding life imprisonment are subject to enhancement under
the habitual offender statute."
Burdick v. State, 594 So.2d 267,
271 (1992) (footnote omitted).
In a case similar to the one at
bar, the Third District Court of Appeal (3rd DCA) explained that
the Florida Supreme Court declared chapter 95-182 unconstitutional
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on account of a violation of the single subject rule, and the
window period for unconstitutionality ran from October 1, 1995,
through May 24, 1997. Sims v. State, 997 So.2d 1166, 1666-67 (Fla.
3rd DCA 2008).
But, the 3rd DCA denied relief with respect to the
challenge to the HVFO sentence concerning the armed robbery count,
finding habitualization permissible because a conviction for armed
robbery with a firearm is a first-degree felony punishable by life
imprisonment, allowing for an adjudication as an HVFO.
Upon review, Petitioner is not entitled to habeas relief on
Petitioner cannot establish that the state court's
decision denying his claim for relief concerning his enhanced
sentence for armed robbery with a firearm was contrary to or an
unreasonable application of federal law.
Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, such a claim presents an
issue purely of state law that is not cognizable on federal habeas
The purpose of a federal habeas proceeding is review of
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.5
Coleman v. Thompson, 501 U.S. 722 (1991).
A federal district court "shall entertain an application for
a writ of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. §2254(a).
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Petitioner's HVFO sentence does not violate the United States
Constitution, and he is not entitled to habeas relief on the second
ground of the Petition.
In his third and final ground, Petitioner raises the following
claim: the trial court erred in failing to have a penalty phase
Petition at 8.
In their Response at 31, Respondents
note that Petitioner exhausted this ground by raising it in his
Amended Rule 3.850 motion for post conviction relief.
Ex. CCC at
1-18. Significantly, the circuit court, in addressing Petitioner's
resentencing claims, recognized that Apprendi v. New Jersey, 530
U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004) do
not apply retroactively, and would not have applied to Petitioner's
HVFO designation with respect to the armed robbery conviction and
sentence and its fifteen-year minimum mandatory provision. Ex. CCC
Importantly, the imposition of the HVFO sentence was based
upon Petitioner's status as a recidivist felon.
and its progeny is inapplicable.
As such, Apprendi
Ex. CCC at 26.
affirmed the circuit court's decision.
The 1st DCA
This Court presumes that the 1st DCA adjudicated the claim on
its merits, as there is an absence of any indication or state-law
procedural principles to the contrary.
Also of note, the last
adjudication on the merits is unaccompanied by an explanation.
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Thus, it is Petitioner's burden to show there was no reasonable
basis for the state court to deny relief.
He has not accomplished
Indeed, if there is any reasonable basis for the court to deny
relief, the denial must be given deference.
Here, deference under
AEDPA should be given to the 1st DCA's adjudication.
has failed to show that the state court's ruling on the claim
raised in ground three was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.
The 1st DCA's
decision is not inconsistent with Supreme Court precedent.
state court's adjudication of this claim is not contrary to or an
unreasonable application of federal constitutional law, or based on
an unreasonable determination of the facts.
Thus, ground three is
due to be denied.
Petitioner's claim, nevertheless, is without merit.
2000, the United States Supreme Court held that
On June 26,
"[o]ther than the
fact of a prior 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."
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
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the jury verdict or admitted by the defendant."
Blakely, 542 U.S.
at 303 (emphasis omitted).
Recognizing recidivism as a traditional basis for a sentencing
court's increasing an offender's sentence, the Apprendi Court
declined to revisit Almendarez-Torres v. United States, 523 U.S.
Apprendi, 530 U.S. at 488-90.
the Court established that a defendant's prior conviction is merely
"a sentencing factor" that does not have to be submitted to the
jury and proved beyond a reasonable doubt.
U.S. at 226-27, 235. See Teater v. McNeil, No.10-22275-Civ-MORENO,
2011 WL 855268, at *11 (S.D. Fla. Feb. 16, 2011) (Florida's
habitual felony offender and habitual violent felony offender
statutes, allowing the enhancement of sentences for recidivism, are
not unconstitutional based on Apprendi and its progeny), report and
recommendation adopted by 2011 WL 860857 (S.D. Fla. Mar. 9, 2011);
West v. State, 82 So.3d 987, 989 (Fla. 1st DCA 2011) (per curiam)
("the Apprendi challenge has been repeatedly rejected by courts of
this state, and the recidivist issue was rejected by the Supreme
Court in Almendarez-Torres").
The United States Supreme Court has not overruled AlmendarezTorres, and its holding remains binding precedent in this Circuit.
See United States v. O'Brien, 130 S.Ct. 2169, 2174, 2180 (2010)
(holding the machine gun provision is an element of the offense,
not a sentencing factor, but recognizing the Almendarez-Torres
exception); Rita v. United States, 551 U.S. 338, 387 n.1 (2007)
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determination that the defendant had previously been convicted.")
In addressing a Sixth Amendment claim that a prior conviction
could not be relied upon because it was not found by a jury beyond
a reasonable doubt, the Eleventh Circuit opined:
Both Supreme Court and this circuit's
precedent foreclose [Petitioner]'s arguments.
The Supreme Court has held that neither the
Constitution nor any statute is violated when
indictment, is used to increase a sentence.
Almendarez-Torres v. United States, 523 U.S.
224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350
(1998). We have applied Almendarez-Torres in
holding that a district court does not violate
the Sixth Amendment when a statutory maximum
sentence is increased based upon judicial
findings of prior convictions that were never
proved to a jury beyond a reasonable doubt or
affirmatively admitted by the defendant in his
plea hearing. See United States v. Shelton,
400 F.3d 1325, 1330 (11th Cir. 2005).
Moreover, we have held that neither Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
147 L.Ed.2d 435 (2000); Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004), nor United States v. Booker, 543 U.S.
220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)
disturbed the Supreme Court's holding in
Almendarez v. Torres. Id. Although various
justices of the Supreme Court have questioned
subsequent decisions, until it is expressly
overruled, we are bound to follow it.
United States v. Greer, 440 F.3d 1267, 1273
(11th Cir. 2006).
United States v. McCain, 358 F. App'x 51, 52 (11th Cir. 2009) (per
curiam); see United States v. Beasley, 447 F. App'x 32, 37 (11th
Cir. 2011) (per curiam); United States v. Michel, 430 F. App'x 838,
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839 (11th Cir. 2011) (per curiam), cert. denied, 565 U.S. 956
Just as the Eleventh Circuit has acknowledged that it is
"bound to follow Almendarez-Torres unless and until the Supreme
Court itself overrules that decision[,]" United States v. Thomas,
242 F.3d 1028, 1035 (11th Cir. 2001), cert. denied, 533 U.S. 960
(2001), this Court is bound to follow Almendarez-Torres.
Petitioner's claim raised in ground three does not warrant federal
habeas corpus relief.
Accordingly, it is now
ORDERED AND ADJUDGED:
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
The Clerk of the Court shall enter judgment accordingly
and close this case.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.6
Because this Court
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
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
Upon due consideration, this Court will deny a
certificate of appealability.
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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
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
Chievy N. Jones
Counsel of Record
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