McGriff v. Secretary, Department of Corrections et al

Filing 30

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 1/10/2018. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ALLEN LANARD MCGRIFF,
Petitioner,
v.

Case No. 3:15-cv-1281-J-39JBT

SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
ORDER
I.

INTRODUCTION

Petitioner Alan Lanard McGriff challenges a 2009 Duval County
conviction

for

attempted

second

battery with a deadly weapon.

degree

murder

and

aggravated

Petitioner raises three claims for

habeas relief in his Petition (Doc. 1).1

Respondents filed an

Answer in Response to Order to Show Cause (Response) (Doc. 22) with
supporting Exhibits.2 Petitioner filed a Reply Unto Respondent[s']
Response to Order to Show Cause (Reply) (Doc. 23). See Order (Doc.
7).

1

Although Respondents reference four grounds of the Petition,
upon review, only three grounds are raised in the Petition (Doc.
1).
Under ground four of the habeas petition form, it states
"none[.]" Petition at 10.
2

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.

II.

CLAIMS OF PETITION

Petitioner raises three grounds in his Petition:

(1) his new

sentence violates Apprendi3 and Blakely4; (2) the state courts
failed to release and discharge Petitioner on state case number 162006-CF-018335; and (3) the trial court failed to modify the
original

sentence

or

impose

a

new

sentence

after

it

found

Petitioner's sentence to be illegal.
Respondents urge this Court to deny the Petition without
conducting an evidentiary hearing. Response at 35. 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.
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

3

Apprendi v. New Jersey, 530 U.S. 466 (2000).

4

Blakely v. Washington, 542 U.S. 296 (2004).
- 2 -

court errors.

Ledford, 818 F.3d at 642 (quoting Greene v. Fisher,

132 S.Ct. 38, 43 (2011)).
The parameters of review are as follows:
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
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,
- 3 -

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
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).

- 4 -

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
Cir. 2016).5

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.
"[A]

habeas

court

must

determine

5

what

arguments

Id. at 98.
or

theories

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.
- 5 -

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; 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., 876

F.3d 1039, 1053 (11th Cir. 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 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.

PROCEDURAL HISTORY

Petitioner was charged by amended information with two counts
of

attempted

murder

in

the

second

degree

possession of a firearm by a convicted felon.

and

one

count

Ex. B at 21-22.

of
The

state filed a Notice of Intent to Classify Defendant as a Prison
Release Re-Offender (PRR).

Id. at 25.

request to sever count three.

The court granted the

Id. at 63.

The state and the

defense filed a joint stipulation that Plaintiff has been twice
convicted of a felony offense.

Id. at 90.
- 6 -

As to count one, Petitioner was convicted and sentenced to 55
years with a 15-year minimum mandatory term.

Ex. HH at 150-53.

As

to count two, he received 30 years with a 15-year minimum mandatory
term.

Id.

"[T]he only way the PRR came in was he was to serve a

hundred percent of his sentence."
concurrent sentences.

Ex. C at 335.

The court imposed

Ex. HH at 151.

Petitioner appealed his judgment and conviction for attempted
second degree murder with a firearm and aggravated battery with a
firearm.

Ex. A at 1.

He claimed that the trial court reversibly

erred in reading the jury instruction on the law of principals and
his PRR sentence was unconstitutional.

Id. at 1-2.

On June 30,

2009, the First District Court of Appeal (1st DCA) agreed that the
trial court erred in instructing the jury on the law of principals.
Id. at 2.

As a result, the 1st DCA reversed the convictions and

sentences and remanded for a new trial.
issued on July 16, 2009.

Id. at 4.

The mandate

Ex. B at 92.

On July 23, 2009, the circuit court entered an Order to
Transport

and

Scheduling

Hearing,

directing

the

Sheriff

to

transport and return Petitioner to the pre-trial detention facility
in Jacksonville and to present him to the circuit court on Monday,
August 3, 2009.

Id. at 98.

Upon re-trial, the jury returned

verdicts of guilty as to attempted second degree murder, while also
finding that Petitioner discharged a firearm causing great bodily
harm to another (count one), and as to aggravated battery, finding
Petitioner discharged a firearm causing great bodily harm to
- 7 -

another (count two).

Ex. C at 294-97.

Petitioner moved for a new

trial, id. at 298-99, and the court denied the motion.

Id. at 300.

On November 19, 2009, the circuit court entered a new Judgment for
attempted murder in the second degree and aggravated battery with
a deadly weapon.

Id. at 304-305.

The court also entered a New

Sentence of 55 years on count one and 25 years on count two, with
the sentences to run concurrently.

Id. at 307-309.

The court

adjudicated Petitioner a Prison Releasee Reoffender (PRR), finding
he must serve 100 percent of the court-imposed sentence.
309.

Id. at

The court also ordered that the 30-year (count one) and 25-

year (count two) minimum mandatory imprisonment provisions of
775.087, Fla. Stat., be imposed for the relevant sentences.
Petitioner filed motions to correct his sentence.
I.

Id.

Ex. H; Ex.

Petitioner argued that his sentence as a PRR was illegal under

Apprendi and Blakely.

Ex. H at 1-5. The circuit court denied the

Motion to Correct Illegal Sentence pursuant to Rule 3.800(b)(2).
Ex. H at 25-26.

In his Second Motion to Correct Illegal Sentence,

Petitioner argued that his sentence is illegal because it exceeds
the statutory maximum for a first degree felony of thirty years.
Ex. I at 1-5.

The circuit court denied the motion.

Ex. J at 1-2.

Petitioner directly appealed his new judgment and sentence.
Ex. C at 320.

He raised two grounds on appeal: (1) the trial court

erred by sentencing Petitioner to a length of incarceration greater
than the statutory maximum, and (2) the trial court violated
Petitioner's rights to a fair trial and due process, relying on
- 8 -

Blakely and its progeny.

Ex. K.

The state answered.

Ex. L.

The

1st DCA affirmed per curiam, relying on Mendenhall v. State, 48
So.3d 740 (Fla. 2010) and Calloway v. State, 914 So.2d 12 (Fla. 2d
DCA 2005), cert. denied, 547 U.S. 1080 (2006).
issued on February 18, 2011.

Ex. M.

The mandate

Id.

Petitioner filed a pro se Motion to Correct Illegal Sentence
pursuant to Rule 3.800(a).
Id. at 8-11.

Ex. N at 1-7.

He amended the motion.

In the motions, Petitioner raised three grounds for

relief: (1) the 55-year term of incarceration imposed on count one
is illegal and exceeds the statutory maximum and constitutes a
manifest injustice; (2) the 25-year term of incarceration imposed
on count two is illegal because the jury did not make a finding
that Petitioner used a deadly weapon; and (3) aggravated battery
cannot be considered a lesser-included offense.
The court rejected ground one, finding that the 10-20-Life
statute, § 775.087, prevails over the general provisions of §
775.082 regarding statutory maximums, relying on Mendenhall v.
State, 48 So.3d at 748.

Ex. N at 14.

The court recognized that

"[t]he First District Court of Appeal has interpreted Mendenhall
and section 775.087(2)(b) as specifically allowing circuit courts
in the First District to 'impose a sentence in addition to its
selected mandatory minimum sentence[.]'"

Ex. N at 14-15.

The

court concluded that Petitioner was exposed to a maximum term of
life

and

rejected

his

claim

that

the

sentence

statutory maximum or constituted manifest injustice.
- 9 -

exceeded

the

Id. at 16.

The court also denied the second ground finding the verdict
form clearly refutes Petitioner's claim that the jury did not make
a finding that Petitioner used a deadly weapon.

Id. at 4-5.

Finally, the court denied the third ground for relief, finding it
was proper for the court to instruct the jury that aggravated
battery is a lesser included offense of attempted second degree
murder.

at

Id.

clarification.

18.

Ex. R; Ex. S.

clarification.

Ex. T.

affirmed per curiam.
2015.

Petitioner

moved

for

rehearing

and

The 1st DCA denied rehearing and

Petitioner appealed, and the 1st DCA

Ex. U.

The mandate issued on November 25,

Id.
Petitioner filed a pro se Petition for Writ of Habeas Corpus

in the circuit court for Santa Rosa County.

Ex. V.

Department of Corrections responded.

The Santa Rosa court

Ex. X.

The Florida

transferred the case, Ex. Z, and the Jackson County circuit court
denied relief.

Ex. AA.

In the petition, Petitioner alleged that his sentence had been
vacated on August 19, 2009, and he was due to be immediately
released.

The

Jackson

County

circuit

court

rejected

contention, explaining:
On August 10, 2009, the Department
received an Opinion of the First District
Court of Appeal dated June 30, 2009, reversing
Appellant's convictions and sentences and
remanding for a new trial. Pursuant to this
opinion, the Department closed interest in the
case and released the Department's hold on
August 10, 2009 pending the new trial.
- 10 -

this

Ex. AA at 2.
The court further noted that Petitioner was returned to the
Department's custody on December 15, 2009, after being resentenced
in the Duval County circuit court on November 19, 2009.

Id.

The

Jackson County circuit court denied habeas relief on July 1, 2015.
Id. at 3.

Petitioner filed a petition for writ of certiorari, Ex.

BB, and the 1st DCA found it untimely and dismissed the petition in
its November 5, 2015 opinion.
December 29, 2015.

Ex. GG.

The mandate issued on

Id.

Also of note, Petitioner filed a pro se Emergency Request with
the 1st DCA.

Ex. O.

He alleged that he should have been

discharged and released from the Duval County Jail on August 19,
2009.

Id. at 1.
V.

The 1st DCA denied the motion.

Ex. Q.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

Ground One

In his first ground for habeas relief, Petitioner contends his
new PRR sentence violates Apprendi and Blakely. Petition at 5. In
their Response at 18, Respondents note that Petitioner exhausted
this ground by raising it in his June 18, 2010 motion to correct
illegal sentence.
court,

in

Ex. H at 1-24.

addressing

this

claim,

Significantly, the circuit
recognized

that

Petitioner

challenged his sentence as a PRR under Apprendi and Blakely, but
the claim was rejected on its merits, with the court relying on
Bailey v. State, 931 So.2d 224, 225 (Fla. 1st DCA 2006) (per
curiam), Peterson v. State, 911 So.2d 184, 185 (Fla. 1st DCA 2005),
- 11 -

and Gurley v. State, 906 So.2d 1264 (Fla. 4th DCA 2005), cert.
denied, 546 U.S. 1143 (2006).

Ex. H at 25-26.

Importantly, the imposition of the PRR sentence was based upon
Petitioner's status as a recidivist felon and the date of his
release from prison. See Notice of Intent to Classify Defendant as
a Prison Release Re-Offender, Exhibit B at 25.

The notice states

that the state will rely on the defendant's prior conviction and
sentence for burglary to a structure on April 8, 2004, from which
the defendant was released from incarceration within three years of
the date of the commission of the charged crimes.6

Id.

Also,

August 15, 2005 is the date of release, and December 17, 2005, is
the date of the alleged commission of the charged crimes.

Id.

Here, deference under AEDPA should be given to the circuit
court's

adjudication.

The

state

court's

inconsistent with Supreme Court precedent.

decision

is

not

The state court's

adjudication of this claim is not contrary to or an unreasonable
application

of

federal

constitutional

unreasonable determination of the facts.

law,

or

based

on

an

Thus, ground one is due

to be denied.

6

Of import, the state filed a notice seeking judicial notice
of the prior Notice of Intent to Classify Defendant as a Prison
Release Re-Offender and informed the court of the same when the PRR
issue arose at the new sentencing proceeding. Ex. C at 331-32.
- 12 -

Additionally,
adjudication

of

even
this

assuming

claim

is

that
not

the

entitled

state
to

court's

deference,

Petitioner's claim, nevertheless, is without merit.
An explanation follows, including a brief discussion of the
impact of Apprendi and Blakely on the constitutional landscape. On
June 26, 2000, the United States Supreme Court held that "[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."
Apprendi, 530 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 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.
224 (1998).

Apprendi, 530 U.S. at 488-90.

In Almendarez-Torres,

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.

Almendarez-Torres, 523

U.S. at 226-27, 235.
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:
- 13 -

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
a
prior
offense,
not
charged
in
the
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
the
soundness
of
Almendarez-Torres
in
subsequent decisions, until it is expressly
overruled, we are bound to follow it.
See
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).
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 also bound to follow Almendarez-Torres.
More specifically, in this instance, the trial court did not
violate Petitioner's constitutional rights to a trial by jury by
- 14 -

making a PRR designation.

A PRR designation "does not provide

sentences in excess of the standard statutory maximums." Whitehead
v. Sec'y, Dep't of Corr., No. 8:06-cv-35-T17MSS, 2008 WL 423507, at
*10 (M.D. Fla. Feb. 13, 2008).

Moreover, Blakely (an extension of

the Court's ruling in Apprendi) "does not apply to prison releasee
reoffender sentences." Spencer v. Sec'y, Dep't of Corr., No. 8:05cv-107-T-17MAP, 2007 WL 1225377, at *4 (M.D. Fla. Apr. 25, 2007).
Indeed, the fact that Petitioner committed his offenses within
three years of being released from the FDOC is analogous to the
fact of a prior conviction as it demonstrates recidivism.

Ross v.

McNeil, No. 5:07cv219/RS/EMT, 2010 WL 2179039, at *41 (N.D. Fla.
Apr. 14, 2010), report and recommendation adopted by 2010 WL
2179037 (N.D. Fla. May 28, 2010). See Goldsmith v. Sec'y, DOC, No.
3:09-cv-646-J-37TEM, 2011 WL 2473087, at *4 (M.D. Fla. June 22,
2011) (rejecting the claim that by sentencing petitioner as a PRR,
the trial court violated his constitutional rights); Gurley v.
State, 906 So.2d at 1265 ("For the purpose of applying Apprendi and
Blakely, the date of a defendant's release from prison under the
prison releasee reoffender statute is analogous to the fact of a
prior conviction under the habitual felony offender statute.").
As such, Petitioner's PRR sentence does not violate the United
States Constitution, and he is not entitled to habeas relief.
Therefore, ground one does is due to be denied.

Furthermore,

Petitioner cannot establish that the state court's decision denying

- 15 -

his claim for relief was contrary to or an unreasonable application
of federal law.
B.

Ground Two

In his second ground, Petitioner complains that he was not
discharged and released on state case number 16-2006-CF-018335 even
though his sentence was vacated and he should have been released
from

incarceration

sentence.

Petition

after
at

the
7.

reversal
With

of

regard

his
to

conviction
the

question

and
of

exhaustion, Respondents concede that Petitioner exhausted this
ground by presenting it in his state Petition for Writ of Habeas
Corpus.

Response at 21.

See Ex. V.

The Jackson County circuit court addressed this ground on its
merits and denied relief.7

Ex. AA.

Thus, 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

7

To the extent Petitioner exhausted this ground by filing an
Emergency Request with the 1st DCA, Ex. O, the 1st DCA denied this
motion. Ex. Q. The Court will assume for the purpose of this
opinion that the 1st DCA's decision is entitled to AEDPA deference.
The 1st DCA's decision is not contrary to, nor did it involve an
unreasonable application of, clearly established federal law, and
was not based on an unreasonable determination of the facts.
- 16 -

established federal law, and was not based on an unreasonable
determination of the facts.
Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, ground two presents an
issue purely of state law that is not cognizable on federal habeas
review.

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.8

Coleman v. Thompson, 501 U.S. 722 (1991).

Alternatively, the record clearly demonstrates that the 1st
DCA

reversed

sentence.
trial.

and

remanded

Petitioner's

original

judgment

and

Thus, his case was remanded to the trial court for a new

After the mandate issued on July 16, 2009, Ex. B at 92, the

Duval County circuit court, on July 23, 2009, ordered the Sheriff
to transport and return Petitioner to the pre-trial detention
facility in Jacksonville, Florida in order for Petitioner to stand
trial on the pending charges.

Id. at 98.

On August 10, 2009, when

the Florida Department of Corrections (FDOC) received notice of the
1st DCA's decision, it closed its interest in the case and released
its hold on Petitioner pending the new trial.
Petitioner's new trial began on November 10, 2009.

8

Ex. X at 2-3.
Ex. D.

He was

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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convicted and then re-sentenced on November 19, 2009. Ex. H at 2834.
2009.

He was returned to the custody of the FDOC on December 15,
Ex. X at 3.
Based on the record before the Court, Petitioner was not

entitled to release before he was retried.

Again, the 1st DCA

reversed and remanded the case to the trial court.

Petitioner was

returned to the pre-trial detention facility and stood trial.
After his new conviction and sentence, he was returned to the FDOC
to serve his new sentence.

Petitioner is not entitled to habeas

relief on this ground as it has no merit.
C.

Ground Three

In his third ground, Petitioner raises the following claim:
the trial court failed to modify the original sentence or impose a
new sentence after it found Petitioner's sentence to be illegal.
Petition

at

8.

This

ground

is

apparently

unexhausted

and

procedurally defaulted as Petitioner did not raise it in the state
court system. Id. at 8-9. Assuming arguendo Petitioner could show
cause and prejudice excusing his default, this ground has no merit.
The

record

demonstrates

that

the

1st

Petitioner's original sentence to be illegal.
with

Petitioner's

assertion

that

the

DCA

not

find

The 1st DCA agreed

trial

instructing the jury on the law of principles.

did

court

erred

in

Ex. B at 94.

It

did not, however, reach the claim that the PRR sentence was
unconstitutional.

Id.

Thereafter, the circuit court rejected

Petitioner's contentions that his new PRR sentence was illegal
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under Apprendi and Blakely, Ex. H at 25-26, and his 55-year
sentence under count one was illegal because it exceeded the
statutory maximum for a first degree felony.

Ex. J at 1-2.

Upon Petitioner's direct appeal of his new judgment and
sentence, the 1st DCA denied Petitioner's claims that the trial
court erred by sentencing Petitioner to a length of incarceration
greater than the statutory maximum and denied him a fair trial and
due process of law by sentencing him as a PRR.

Ex. M.

Moreover,

when Petitioner tried to challenge his new sentence through a Rule
3.800(a) motion, the circuit court found that the 10-20-Life
statute prevails over the general provisions regarding statutory
maximums.

Ex. N at 14.

The 1st DCA affirmed.

Ground three is without merit.

Ex. U.

Petitioner is not entitled to

habeas relief, and the Petition 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.
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.9

9

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
- 19 -

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 10th day of
January, 2018.

sa 1/5
c:
Allen Lanard McGriff
Counsel of Record

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.
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