Howze v. Secretary, Department of Corrections et al
Filing
25
ORDER denying 1 the 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 11/20/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JAMES LINDSEY HOWZE,
Petitioner,
v.
Case No. 3:15-cv-938-J-39PDB
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
ORDER
I.
INTRODUCTION
Petitioner James Lindsey Howze challenges a 2011 Suwannee
County conviction for three counts of first degree murder (counts
2, 3 & 4), three counts of home invasion robbery (counts 5, 6, 7),
and three counts of kidnaping (counts 8, 9, & 10).
(Doc.
1).
Petitioner
raises
six
claims
for
See Petition
habeas
relief,
including a claim of ineffective assistance of trial counsel. 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).
Respondents filed an Answer in Response to Order to Show Cause
and Petition for Writ of Habeas Corpus (Response) (Doc. 21).
In
support of their Response, they submitted Exhibits (Doc. 21).1
Petitioner filed a Reply to Respondents' Answer in Response to
Order to Show Cause and Petition for Writ of Habeas Corpus (Reply)
(Doc. 22).
See Order (Doc. 8).
II.
CLAIMS OF PETITION
Petitioner raises six grounds in his Petition:
(1)
the
ineffective assistance of trial counsel for waiving Petitioner's
right to a speedy trial; (2) a violation of double jeopardy
principles, claiming the three home invasion robbery offenses
occurred in a single dwelling, occupied by three people; (3) a
violation of due process rights, claiming the First District Court
of Appeal (1st DCA) affirmed the trial court's decision denying
Petitioner's Rule 3.850 motion for post conviction relief upon
reviewing an incomplete transcript of the December 14, 2010 motion
hearing; (4) a violation of due process and equal protection of the
law, claiming the 1st DCA erred in interpreting state law; (5) a
denial of constitutional rights, claiming the 1st DCA erred in
1
The Court hereinafter refers to the exhibits contained in
the Exhibits for Response to Petition for Writ of Habeas Corpus 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.
- 2 -
denying the petition for belated appeal and failing to appoint
counsel during the proceeding; and (6) a violation of the Double
Jeopardy Clause, the Eighth Amendment, the Due Process and Equal
Protection Clauses, and contract law, resulting in a plea bargain
that is illegal and void.
Respondents urge this Court to deny the Petition. Response at
20. The Court will address Petitioner's six grounds, See Clisby v.
Jones, 960 F.2d 925, 936 (11th Cir. 1992), but no evidentiary
proceedings are required in this Court.
III.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (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), 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).
As such,
AEDPA ensures that federal habeas relief is limited to extreme
malfunctions, and not used as a means to attempt to correct state
court errors.
Ledford, 818 F.3d at 642 (quoting Greene v. Fisher,
132 S.Ct. 38, 43 (2011)).
The Eleventh Circuit recently outlined the parameters of
review:
Thus, under AEDPA, a person in custody
pursuant to the judgment of a state court
- 3 -
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
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). "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
Cir. 2014).
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
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
- 4 -
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
findings,
unless
the
convincing evidence.
presumption
is
rebutted
28 U.S.C. § 2254(e)(1).
with
clear
and
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
factual finding.
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
courts."
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.
Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
- 5 -
Cir. 2016).2
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); see also Johnson v. Williams, 133 S.Ct. 1088,
1096 (2013). "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.
"[A]
habeas
court
must
determine
what
arguments
Id. at 98.
or
theories
supported or, as here, could have supported, the state court's
decision; and then it must ask whether it is possible fairminded
2
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.
- 6 -
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; Marshall, 828 F.3d at 1285.
Although the § 2254(d) standard is difficult to meet, it was
meant to be difficult.
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 justification that
there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."
Richter, 562
U.S. at 103.
IV.
Respondents
provide
PROCEDURAL HISTORY
a
brief
procedural
history
in
their
Response, Response at 1-2, and relevant Exhibits (Doc. 21).
V.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In ground one, Petitioner raises a claim of ineffective
assistance of trial counsel for waiving Petitioner's right to a
speedy trial.
Petition at 23-27.
Respondents contend that this
claim is precluded and is without merit because defense counsel's
decision
to
waive
speedy
trial
rights
and
preparation time is one within counsel's control.
The record shows the following.
gain
additional
Response at 6.
Defense counsel, David
Collins, concluded that the defense needed more time to prepare for
trial and asked for a continuance "so that we can have proper time
to thoroughly prepare the defense and make sure that I don't impede
- 7 -
Mr. [Baya] Harrison (defense counsel) from doing what he feels is
necessary to protect Mr. Howze in a penalty phase if this becomes
necessary." Ex. A at 115. Mr. Collins explained that Mr. Harrison
was actively seeking a psychologist or psychiatrist to conduct an
evaluation of Petitioner.
Id.
Also of note, the state informed
the court that the case involves witnesses from another state, and
depositions had not yet been taken of these witnesses. Id. at 116.
Of further import, the state noted that it was seeking the death
penalty.
Id.
The state did not object to the request for a
continuance, noting that the defense was not ready to proceed as
there were important questions of competency at the time of the
offense and to stand trial, and the outstanding question of
mitigating psychological factors.
motion
for
continuance,
circumstances presented.3
In
addressing
the
finding
Id.
it
was
The court granted the
warranted
under
the
Id.
Rule
3.850
motion,
the
circuit
court
acknowledged that Petitioner was attempting to raise an appellate
argument couched in the language of ineffective assistance of
counsel, nevertheless, the court went on to address the merits of
the claim of ineffective assistance of counsel.
Ex. A at 77.
The
court, upon reviewing Petitioner's claim of ineffective assistance
3
The time that elapsed between the arrest on September 11,
2010, Ex. A, Docket at 4, and the plea proceeding on October 24,
2011 (408 days), Ex. A at 118, was not extraordinary under the
circumstances presented, and there were significant reasons
presented by counsel justifying the delay in a death penalty case.
- 8 -
of counsel for waiving Petitioner's speedy trial rights, concluded
that neither prong of the Strickland test had been met.
77, 79.
Ex. A at
The court found no deficient performance or prejudice.
Ex. A at 78-79.
To the extent Petitioner claimed the continuance
gave the state time to seek habitual offender status, the court
rejected this contention, noting that habitual offender status was
determined by statute and Petitioner's prior record, and had
nothing
to
do
with
any
delay
in
the
trial.
Id.
at
79.
Furthermore, the court found no prejudice at sentencing, because
Petitioner entered into a negotiated plea agreement with a fixed
sentence in order to avoid the death penalty.
Id.
The record shows that the 1st DCA affirmed per curiam. Ex. C.
The 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. See Richter, 562 U.S. at 99
(citing
Harris
v.
Reed,
489
U.S.
255,
265
(1989)
and
its
presumption of a merits determination when it is unclear whether a
decision appearing to rest on federal grounds was decided on
another basis).
Also of note, the last adjudication on the merits
is unaccompanied by an explanation.
Thus, it is Petitioner's
burden to show there was no reasonable basis for the state court to
deny relief.
Upon
He has not accomplished that task.
review,
counsel's
performance
was
not
deficient
in
requesting the continuance because it was reasonable to wait until
the trial preparation was complete and counsel was prepared for the
- 9 -
death penalty phase, if necessary.
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.
Petitioner has failed to show that the state
court's ruling on the claim raised in ground one 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, including Stickland and its progeny.
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.
Thus, ground one is due to be denied.
To the extent Petitioner is claiming a violation of state
speedy trial law, his claim is due to be denied as it fails to
state a claim of constitutional dimension.
Importantly, this type
of claim is not reviewable in a federal habeas action.
See Sneed
v. Fla. Dep't of Corr., 496 F. App'x 20, 25 (11th Cir. 2012) (per
curiam) (finding that "[t]o the extent that [the petitioner]
alleged a violation of Florida's speedy trial rules, that type of
claim is not cognizable on federal habeas review because it only
involves state procedural rules rather than errors of federal
constitutional dimension"), cert. denied, 134 S.Ct. 391 (2013). It
is clear that a violation of Florida's speedy trial statutory
provisions "is merely a violation of a state procedural rule" that
fails to "establish a denial of [a] constitutional right to a
- 10 -
speedy trial," so it is not reviewable in this habeas proceeding.
Davis v. Wainwright, 547 F.2d 261, 264 (5th Cir. 1977).4
Even if a speedy trial claim was properly before this Court,
this Court previously found:
A defendant's request for a continuance waives
his right to a speedy trial. Randall v. State,
938 So.2d 542, 544 (Fla. 1st DCA 2006) (per
curiam).
"This
waiver
applies
even
in
situations in which the attorney requests the
continuance without consulting the defendant
or against the defendant's wishes." Id.
(citations omitted). As a result, there is no
violation of a constitutional right to a
speedy trial where defense counsel seeks a
continuance against his client's wishes or
over his client's objections. Charles v.
McDonnough, No. 407cv260–SPM/WCS, 2010 WL
780200, at *16 (N.D. Fla. Feb.26, 2010) (Not
Reported in F.Supp.2d).
Williams v. Secretary, DOC, No. 3:12-cv-1296-J-39MCR, 2015 WL
4042032, at *16 (M.D. Fla. July 1, 2015).
Petitioner is not entitled to habeas relief on ground one, and
ground one is due to be denied.
B.
Ground Two
In his second ground, Petitioner raises the following claim:
a violation of double jeopardy principles, claiming the three home
invasion robbery offenses occurred in a single dwelling, occupied
by three people. Petition at 28-29. Respondents contend that this
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit adopted as binding
precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
- 11 -
ground is without merit, having been waived pursuant to the
negotiated plea agreement with the state.
At this juncture, Petitioner may not "raise independent claims
relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea."
U.S. 258, 267 (1973).
Tollett v. Henderson, 411
Upon review, Petitioner signed a negotiated
plea form, which included offering his plea of guilty to the three
home invasion robbery offenses. Ex. A at 91-92. The circuit court
accepted his plea.
Id. at 118-33.
Thus, "the double jeopardy
challenge is foreclosed by the guilty pleas and the judgments of
conviction."
United States v. Broce, 488 U.S. 563, 565 (1989).
Petitioner pled guilty to indictments that on their face
described
three
home
invasion
victims.
Ex. A at 89-90.
robbery
offenses
against
three
Petitioner had the opportunity to
contradict those indictments, but the opportunity was foreclosed
once he made his admissions when entering his guilty pleas. United
States v. Broce, 488 U.S. at 766.
This District Court previously addressed the double jeopardy
issue,
Where a defendant pleads guilty pursuant
to a negotiated plea agreement, he waives the
right to raise a double jeopardy claim in a
petition for habeas corpus relief. See Dermota
v. United States, 895 F.2d 1324 (11th Cir.
1990) (holding that because "a plea of guilty
and
the
ensuing
conviction
foreclose
collateral
attack,"
the
defendant
was
precluded from raising a double jeopardy claim
in his habeas petition). Similarly, under
Florida law, negotiated pleas constitute a
- 12 -
waiver of constitutional claims. See Novaton
v. State, 634 So.2d 607 (Fla. 1994) (holding
that a bargained-for plea waives the right to
attack multiple convictions on double jeopardy
grounds). Because [the petitioner] pleaded
guilty to [the] offenses pursuant to a
negotiated plea agreement, he is foreclosed
from arguing that his [convictions violate]
principles of double jeopardy.
Taylor v. Sec'y, Fla. Dep't of Corr., No. 8:13-CV-0321-CEH-EAJ,
2015 WL 1942772, at *2 (M.D. Fla. Apr. 29, 2015) (not reported in
F.Supp.3d) (footnote omitted).
Petitioner raised a double jeopardy claim in his state Motion
to Correct Illegal Sentence pursuant to Rule 3.800(a), Fla. R.
Crim. P.
Ex. N at 1-56.
The circuit court denied the motion,
finding Petitioner waived his double jeopardy claim by entering
into a negotiated plea agreement with the state.
Id. at 57.
such, the court found he was not entitled to any relief.
58.
The 1st DCA affirmed per curiam.
As
Id. at
Ex. P.
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 two 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.
- 13 -
Alternatively,
Petitioner's
double
jeopardy
challenge
is
foreclosed by his guilty pleas and conviction. Thus, ground two is
due to be denied.
C.
Grounds Three and Four
In ground three, Petitioner raises the following claim: the
1st DCA violated Petitioner's due process rights by per curiam
affirming the trial court's decision denying Petitioner's Rule
3.850 motion for post conviction relief based upon a review of an
incomplete transcript of the December 14, 2010 motion hearing.
Petition at 29-32.
In ground four, Petitioner claims the 1st DCA
erred in interpreting state law, denying Petitioner due process and
equal protection of the law.
Petition at 32-33.
Upon review of grounds three and four, the Court concludes
that these grounds do not present issues that are cognizable in
this habeas proceeding; therefore, these grounds cannot provide a
basis for federal habeas corpus relief.
There is simply no breach
of a federal constitution mandate. Therefore, the claims raised in
grounds three and four are due to be denied.
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.
See Coleman v. Thompson, 501 U.S. 722 (1991).
Since these grounds present state law claims complaining about the
decision of the 1st DCA in affirming the denial of post conviction
relief, Petitioner is not entitled to federal habeas corpus relief
- 14 -
as there has been no breach of a federal constitutional mandate.
Although Petitioner tries to couch his claim in terms of equal
protection and due process of the law, "[t]his 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)). Petitioner's assertion of errors made by the 1st
DCA do not infringe upon federally protected rights; therefore,
there is no basis for federal habeas relief.5
Carrizales v.
Wainwright, 699 F.2d 1053, 1054-55 (11th Cir. 1983) (per curiam).
Based on the above, Petitioner is not entitled to habeas
relief on grounds three and four of the Petition.
Therefore,
grounds three and four are due to be denied.
D.
Ground Five
In ground five, Petitioner raises a claim that the 1st DCA
denied Petitioner his constitutional rights by denying the petition
for belated appeal and failing to appoint counsel during the
proceeding. Petition at 33-36. Respondents assert that this claim
is without merit, and Petitioner is not entitled to counsel during
a state collateral proceeding.
Response at 18.
5
Of importance, the 1st DCA apparently had before it a
complete copy of the December 14, 2010 hearing transcript, as
evidenced by the court reporter's certification that the transcript
of the proceeding is a true and complete transcript of the court
reporter's stenographic notes. See Ex. A at 75, 113, 114-17.
- 15 -
This ground is due to be denied as Petitioner alleges a defect
in the state collateral proceeding process.
The Eleventh Circuit
has found: "defects in state collateral proceedings do not provide
a basis for habeas relief."
Carroll v. Sec'y, DOC, 574 F.3d 1354,
1365 (11th Cir.) (citations omitted), cert. denied, 558 U.S. 995
(2009).
As
such,
ground
five
does
not
present
a
claim
of
constitutional dimension. Alston v. Dep't of Corr., Fla., 610 F.3d
1318,
1325-26
collateral
(11th
proceeding
Cir.)
do
(recognizing
not
undermine
that
the
challenges
legality
of
to
a
the
conviction itself; therefore, habeas relief is inappropriate),
cert. denied, 562 U.S. 1113 (2010). Accordingly, Petitioner is not
entitled to habeas relief on ground five.
To the extent Petitioner is claiming a denial of due process
of law by being denied appointed counsel for the petition for
belated appeal proceeding, Petitioner has not raised a claim of
constitutional dimension.
Although this claim may be couched in
terms of denial of due process of law, this is actually a state law
claim of court error.
The writ of habeas corpus under 28 U.S.C. §
2254 "was not enacted to enforce State-created rights."
Cabberiza
v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000) (citing Branan v.
Booth, 861 F.2d at 1508), cert. denied, 531 U.S. 1170 (2001).
Eleventh
Circuit
allows
that
only
in
cases
of
The
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).
- 16 -
Alternatively, Petitioner received all the process to which he
was entitled. Petitioner filed a petition for belated appeal. Ex.
G.
After conducting an evidentiary hearing, a special master
issued a report and recommendation.
Ex. I.
Of note, the special
master made the factual finding that at no time did Petitioner
request that his counsel file a notice of appeal.6
Ex. I at 6.
The court also found the testimony of the two very experienced
attorneys to be credible, trustworthy, and reliable. Id. Finally,
the court found Petitioner was not entitled to a belated appeal and
recommended denial of the petition for belated appeal.
Id.
After
being given notice and an opportunity to respond, Petitioner filed
a response to the report and recommendation.
Ex. J.
On May 13,
2014, the 1st DCA denied the petition for belated appeal on its
merits.
Ex. K.
On June 12, 2014, the 1st DCA denied rehearing.
Ex. M.
The 1st DCA denied the petition for belated appeal on its
merits, and this denial is due AEDPA deference.
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
fairminded disagreement.
law
beyond
any
possibility
for
The state court's adjudication of this
claim is not contrary to or an unreasonable application of clearly
6
The special master's factual findings are due deference.
Petitioner has not rebutted the presumption of correctness by clear
and convincing evidence. See 28 U.S.C. § 2254(e)(1).
- 17 -
established Federal law, or based on an unreasonable determination
of the facts.
Thus, ground five is due to be denied.
E.
Ground Six
In his sixth ground, Petitioner raises the following claim: a
violation of the Double Jeopardy Clause, the Eighth Amendment, the
Due
Process
and
Equal
Protection
Clauses,
and
contract
resulting in a plea bargain that is illegal and void.
37.
law,
Petition at
In support of the ground, Petitioner complains that he should
not have been hailed into court to face three separate charges of
home invasion robbery for the single entry of a dwelling with three
occupants.
Id.
Liberally
construing
the
pro
se
Petition,
Petitioner is simply rehashing his double jeopardy claim raised in
ground two of the Petition.
It will not be re-addressed here as
that claim was fully addressed under ground two and deemed to be
waived by the negotiated guilty plea to the home invasion robbery
offenses.
Petitioner's claim of being subjected to cruel and unusual
punishment
in
violation
of
unsupported in the Petition.
the
Eighth
Amendment
is
wholly
His claim of violation of contract
law is also unsupported in the Petition.
Finally, Petitioner has
not demonstrated a due process violation or an equal protection
violation.
Petitioner entered into a negotiated plea, Ex. A at 91-92, and
received the benefit of the bargain, avoiding facing the death
- 18 -
penalty.
Id.
at
118-33,
76-88;
Ex.
I,
Evidentiary
Hearing
Transcript at 8 (the negotiation took place after jury selection
started, and the defense was able to negotiate with the state to
obtain a life sentence rather than proceed to trial with Petitioner
facing the death penalty). Petitioner told the court that his mind
was at rest to take the plea.
what he was doing.
Ex. A at 121.
Id. at 122.
plea was in his best interest.
He said he understood
He expressed his view that the
Id.
Petitioner said he did not
need more time to discuss the plea with his attorneys, and he did
not feel like he had been forced or pressured into entering the
plea.
Id. at 123.
The court found a factual basis for the plea,
and accepted the plea.
Id. at 128.
In hindsight, Petitioner may regret that he accepted the plea
offer, but the state has not breached the terms of the plea
agreement. Petitioner received the sentence for which he bargained
for in the negotiated plea (three consecutive life sentences
without the possibility of parole, to be followed by 180 years in
prison).
Ex. A at 91-92, 94-112, 119, 132.
In conclusion, Petitioner is not entitled to habeas relief
under ground six, and ground six is due to be denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
- 19 -
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
has
determined
that
a
certificate
of
Because this Court
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 20th day of
November, 2017.
sa 11/9
c:
James Lindsey Howze
Counsel of Record
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
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
- 20 -
- 21 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?