Perez v. State of Florida et al
Filing
29
ORDER denying Amended Petition 11 and dismissing case with prejudice, directions to the Clerk. Signed by Judge Timothy J. Corrigan on 7/9/2019. (JND)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KYREE L. PEREZ,
Petitioner,
v.
Case No. 3:16-cv-1596-J-32JBT
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et. al.,
Respondents.
________________________________
ORDER
I.
Status
Petitioner Kyree L. Perez, 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. Petitioner is proceeding on an Amended Petition.
Doc. 11. He challenges a state court (Duval County, Florida) judgment of conviction
for attempted second degree murder and possession of a firearm by a juvenile
delinquent found to have committed a felony act. He is currently serving an aggregate
fifty-five-year term of incarceration. Doc. 11 at 1. Respondents filed an Amended
Response. See Doc. 24 (Resp.).1 Petitioner declined to file a reply. See Doc. 26. This
case is ripe for review.
Attached to the initial Response are several exhibits. See Doc. 22. Respondents
cite to the same exhibits in their Amended Response. The Court cites to the exhibits
as “Resp. Ex.”
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II.
Analysis
Petitioner raises one claim for relief. See Doc. 11 at 6. He claims that the state
failed to file formal charges within thirty days of his arrest in violation of Florida Rule
of Criminal Procedure 3.134. According to Petitioner, he was arrested on June 6, 2014,
in Philadelphia, Pennsylvania, and extradited to Jacksonville, Florida, and booked
into the pre-trial detention facility on July 4, 2014. He claims that the state did not
file formal charges until August 1, 2014, fifty-six days after his arrest. He argues that
pursuant to Rule 3.134, he should have been released on his own recognizance forty
days after his arrest.
Petitioner raised this claim in a “Petition for Writ of Habeas Corpus” filed with
the First District Court of Appeal. Resp. Ex. F. The First DCA construed the petition
as a motion for postconviction relief filed under Florida Rule of Criminal Procedure
3.850 and transferred the motion to the trial court for consideration. Resp. Ex. G. The
trial court denied the claim, finding as follows:
A. The Defendant was arrested on June 6, 2014 in
Philadelphia, PA and extradited to Jacksonville, FL on July
4, 2014.
B. The Defendant was charged by information on
August 1, 2014 with Attempted Murder-Second Degree and
Possession of a Weapon or Ammunition by a Florida
Delinquent Adult Felon.
C.
The Defendant is claiming that the
Information was filed 56 days after his arrest and that
therefore he should be released from custody.
D.
The Defendant cites Rule 3.134 Fla. R. Crim.
P.; however, his interpretation of said Rule is misplaced.
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E.
The Defendant’s remedy would have been to
be released from custody during the pendency of the case,
not to be relieved from serving his sentence.
F.
The time to raise that issue has long since
passed. The Defendant was found guilty by a jury of his
peers and sentenced to 40 years Florida State Prison with
201 days credit as to Count I and 15 years Florida State
Prison (Consecutive) as to Count II.
G.
The Defendant appealed his case to the First
District Court Appeal where he had the opportunity to raise
the aforementioned issue, but apparently neglected to do so.
The District Court affirmed his conviction and a Mandate
was issued regarding same on April 28, 2016 . . . .
Resp. Ex. H. Petitioner attempted to seek an appeal of the trial court’s denial; however,
when Petitioner failed to comply with the First DCA’s order directing him to file an
amended notice of appeal2 (Resp. Ex. I), the First DCA dismissed the appeal (Resp.
Ex. J). Respondents argue that this claim is unexhausted and procedurally defaulted
because Petitioner’s appeal of the trial court’s denial was dismissed. Resp. at 4-5. The
Court agrees.
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
The First DCA directed Petitioner to file an amended notice of appeal that
contained a “proper certificate of service showing service on Pamela Jo Bondi, Attorney
General.” Resp. Ex. I.
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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); see also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel
applies to the state collateral review process as well as the direct appeal process.”). 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.
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).[3] 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).
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
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Murray v. Carrier, 477 U.S. 478 (1986).
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establish that a fundamental miscarriage of justice, the continued incarceration of one
who is actually innocent, otherwise would result. “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.
While Petitioner raised this claim in the trial court, the dismissal of his appeal
of the trial court’s denial prevented Petitioner from fairly presenting this issue to the
state’s highest court. As such, this claim is unexhausted and procedurally defaulted.
Petitioner does not argue cause or actual prejudice from this procedural default, and
he does not claim that a fundamental miscarriage of justice will result if this claim is
not addressed on the merits.
Nevertheless, even if this claim was properly exhausted, it is not cognizable on
federal habeas review. Petitioner is asking that the Court enforce a state created right
and asserts that he was entitled to pre-charge release pursuant to Rule 3.134.
However, 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 1507, 1508 (11th Cir. 1988)). The purpose of a federal
habeas proceeding is review of the lawfulness of Petitioner’s custody to determine
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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). Only in cases of federal
constitutional error will a federal writ of habeas corpus be available. See Jones v.
Goodwin, 982 F.2d 464, 471 (11th Cir. 1993); Krasnow v. Navarro, 909 F.2d 451, 452
(11th Cir. 1990). It is not the province of this Court to reexamine the state-court
determination on an issue of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). “This limitation on federal habeas review is of equal force when a petition,
which actually involves state law issues, is ‘couched in terms of equal protection and
due process.’” Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (quoting Willeford
v. Estelle, 538 F.2d 1194, 1198 (5th Cir. 1976)).
The Court is bound by the Florida court’s interpretation of its own laws unless
that interpretation breaches a federal constitutional mandate. McCoy v. Newsome,
953 F.2d 1252, 1264 (11th Cir. 1992). Here, there has been no breach of a federal
constitutional mandate. Petitioner has presented a state law claim, not a claim of
constitutional dimension. Thus, it is not cognizable in this proceeding.
Accordingly, it is
ORDERED AND ADJUDGED:
1.
Petitioner’s Amended Petition (Doc. 11) is DENIED and this case is
DISMISSED with prejudice.
2.
The Clerk shall enter judgment dismissing this case with prejudice,
terminate any pending motions, and close the file.
3.
If Petitioner appeals this denial, the Court denies a certificate of
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appealability. Because this 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.4
DONE AND ORDERED at Jacksonville, Florida, this 9th day of July, 2019.
TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C:
Kyree L. Perez, #J54349
Thomas H. Duffy, Esq.
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, 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)).
Here, after consideration of the record as a whole, the Court will deny a certificate of
appealability.
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