Adams v. Secretary, Department of Corrections et al

Filing 31

ORDER denying 19 and 21 Petitioner's motion for leave to engage in discovery and supplement to the motion to engage in discovery; denying as moot 24 Petitioner's motion to stay the filing of his Reply; denying 25 Petitioner' ;s motion to correct or expand the record or to stay the proceedings; denying in part as moot and otherwise denying 13 Petitioner's motion to take judicial notice; directions to the Clerk to correct docket entry 28; striking 28 Petitioner's reply to respondents' responses to his motions. Signed by Magistrate Judge Monte C. Richardson on 11/1/2018. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
THOMAS L. ADAMS,
Petitioner,
v.

Case No. 3:17-cv-509-J-39MCR

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
_______________________________
ORDER
1.

Before

the

Court

is

Petitioner’s

“Request

to

Take

Judicial Notice” (Doc. 13; Motion for Judicial Notice). In the
Motion for Judicial Notice, Petitioner asks the Court to take
judicial notice of three documents: (a) his “Motion for Rehearing,”
filed in the Fourth Judicial Circuit in and for Clay County,
Florida; (b) his Initial Brief filed in the First District Court
of Appeal on or about February 10, 2017; and (c) a letter he
received from John A. Tomasino, Clerk of the Florida Supreme Court,
dated February 6, 2018. See Motion for Judicial Notice at 2-3.
In their response to Petitioner’s Motion for Judicial Notice
(Doc. 27; Response),1 Respondents state that they have filed as
exhibits in support of their response to the habeas petition (Doc.

Defendants respond to the Motion for Judicial Notice (Doc. 13)
and two additional motions under this Court’s review (Docs. 19,
21). Thus, when the Court addresses the additional motions, it
will continue to cite to the “Response,” as appropriate.
1

1; Petition) two of the documents referenced in Petitioner’s Motion
for Judicial Notice: (a) and (b). See Response at 2. They have not
provided the third document (c), however, because it “was not a
part of the sate court records in this case.” Id.2 Mr. Tomasino’s
letter is a response to Petitioner’s complaint, via letter, that
he believes the state court plea and sentencing hearing transcript
is “flawed.” See Motion for Judicial Notice at 3. Mr. Tomasino
stated, “[t]he Court will not investigate this matter and instead
will rely on the legal system to review any alleged improprieties”
(Doc. 13-3).
Accordingly, Petitioner’s Motion for Judicial Notice (Doc.
13) is DENIED as moot with respect to documents (a) and (b). With
respect to document (c), the Motion for Judicial Notice is DENIED.
The letter is not a part of the state court record, and Petitioner
has not shown that it is relevant to the Court’s consideration of
his habeas claims.
2.

Before the Court is Petitioner’s Motion for Leave to

Engage in Discovery (Doc. 19; Discovery Motion), and a supplement
(Doc. 21; Supplement) supported by two exhibits. In his Discovery
Motion, like in his Motion for Judicial Notice, Petitioner seeks
relief because he believes that the plea and sentencing hearing
transcript is incorrect. See Discovery Motion at 1. He seeks leave

The letter is dated February 6, 2018, after the state proceedings
were concluded.
2

2

to propound interrogatories on court reporter Angela Mathis “to
determine the cause of the current gross transcription [errors],
omissions

and

unfound[ed]

insertions

now

present

in

[the]

transcripts.”3 See Discovery Motion at 1-2. Petitioner states the
interrogatories would be limited to Ms. Mathis’ certification of
the

transcript

and

“any

anomalies

she

encountered

in

her

stenographic notes or the electronic recording of [his] plea and
sentencing hearing.” See id. at 2.
Petitioner does not explain how the transcript is incorrect,
though the two exhibits he filed with his Supplement (Docs. 21-1,
21-2) purportedly demonstrate his need to engage in discovery. One
exhibit is a letter Petitioner wrote to the Florida Supreme Court
Clerk of Court (Mr. Tomasino) asking that his office investigate
“the blatantly false certification of Ms. Mathis,” the court
reporter (Doc. 21-2; Supp. Ex. B). He claims that it would have
been impossible for her to have transcribed the plea and sentencing
hearing because she was not present in the courtroom “and there
was no digital recording of the event.”4 See Supp. Ex. B at 3.

Petitioner references the transcript in the plural, though he
provides as an exhibit only one transcript of the plea and
sentencing hearing, dated October 10, 2016. See (Doc. 21-1). It
appears this is the only transcript at issue, and there was only
one plea and sentencing hearing, which occurred on September 10,
2015. Id.
3

Petitioner does not indicate in his Discovery Motion or Supplement
why he believes the hearing was not recorded. However, in a
subsequent filing (Doc. 25), Petitioner states the following:
4

3

The

other

exhibit

is

the

Florida

Supreme

Court

Clerk’s

response to Petitioner’s Letter (Doc. 21-1; Supp. Ex. A). The Clerk
informed Petitioner that Florida Statutes § 25.383 imposes an
obligation on the Florida Supreme Court to oversee court reporters,
though the legislature did not fund the program. See Supp. Ex. A
at 2. Thus, the Clerk was “unable to forward [his] correspondence
to a regulatory body for further review and investigation.” Id.
It appears that because the Florida Supreme Court Clerk was
unable to investigate Petitioner’s assertions that the plea and
sentencing transcript is flawed, Petitioner seeks to engage in his
own investigation by invoking Rule 6 of the Rules Governing § 2254
cases (Rule 6). Rule 6(a) provides that a court “may, for good

“Petitioner and his sister . . . zealously attempted to obtain
copies of Petitioner’s plea and sentencing transcripts (or the
electronic recording) . . . before filing the rule 3.850 motion,
but were informed (in writing) and assured . . . they did not
exist—in any format.” The documentation Petitioner provides to
show that he was informed, in writing, that an electronic recording
does not exist does not in fact support Petitioner’s assertion.
For instance, an assistant state attorney wrote to Petitioner’s
sister, stating that “there are no transcripts from any
prehearings, trial, or sentencing.” See (Doc. 25-2) at 10. There
is no indication in this letter, or the other correspondence
Petitioner provides, that anyone stated that the plea and
sentencing hearing was not electronically recorded. Moreover,
Petitioner’s suggestion that the hearing was not recorded is belied
by his own statement in his motion for rehearing, which he provides
as an exhibit in support of his Motion for Judicial Notice (Doc.
13-1; Rehearing Motion). In his motion for rehearing, dated
November 14, 2016, Petitioner states, “[t]here was not a court
reporter in the courtroom when Adams was sentenced. The only record
was the audio.” See Rehearing Motion at 3 (emphasis added).
4

cause, authorize a party to conduct discovery.” However, the
Supreme Court has made clear that “[a] habeas petitioner, unlike
the usual civil litigant, is not entitled to discovery as a matter
of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
The decision to grant or deny a request to engage in discovery is
vested in the sound discretion of the district court. See Rule
6(a) Advisory Committee Notes. See also Bracy, 520 U.S. at 909.
A

habeas

petitioner

seeking

to

engage

in

discovery

demonstrates “good cause” when the evidence sought “would raise[]
sufficient doubt about [his] guilt.” Arthur v. Allen, 459 F.3d
1310,

1310

(11th

Cir.

2006)

(internal

quotations

omitted)

(alterations in original). It is not sufficient to hypothesize or
speculate that the requested discovery may support his petition or
may be relevant to the claims raised. Id. at 1311 (“[D]iscovery
cannot be ordered on the basis of pure hypothesis.”).
Upon review, the Court finds that Petitioner has not shown
“good cause” to engage in discovery. Petitioner’s assertion that
the transcript of his plea and sentencing hearing contains “gross
. . . err[ors]” is mere speculation. He reaches this speculative
conclusion based on his mistaken belief that the plea hearing was
not audio recorded. See Supp. Ex. B at 3. To the extent Petitioner
asserts that any interrogatories to Ms. Mathis would be limited to
her

certification

encountered”

while

of

the

transcript

preparing

the
5

and

“any

transcript,

anomalies

the

Court

she

finds

persuasive Respondents’ assertion that the transcript of the plea
hearing is “self-authenticating.” See Response at 9 (citing §
90.108(2), Fla. Stat.). “The report of a court reporter, when
certified to by the court reporter as being a correct transcript
of the testimony and proceedings in the case, is prima facie a
correct

statement

of

such

testimony

and

proceedings.”

See

§

90.108(2), Fla. Stat.
The relevant transcript (Doc. 25-1; Transcript)5 includes the
following introductory language indicating that Ms. Mathis was the
court reporter who transcribed the proceedings:
Proceedings before the Honorable Don H.
Lester, Circuit Judge at the Clay County
Courthouse . . . on Thursday, September 10,
2015,6 commencing at 1:35 p.m., as recorded by
Angela M. Mathis, Registered Professional
Reporter, Florida Professional Reporter, and
Notary Public in and for the State of Florida
at Large.
See

Transcript

at

2.7

Moreover,

the

transcript

contains

the

following certification, signed by Angela M. Mathis:

Petitioner provided only a few pages of the transcript with his
Supplement. He provided the complete transcript as an exhibit with
a later filing (Doc. 25). Thus, the Court will cite to that
document.
5

Page numbers reflect the pagination assigned by the Court’s CM/ECF
docketing system, which are found at the top of each page.
6

The transcript was generated on October 10, 2016. The plea and
sentencing hearing occurred approximately one year before, on
September 10, 2015. Respondents note in their response to
Petitioner’s Discovery Motion that the plea hearing was not
transcribed immediately because Petitioner did not file a direct
7

6

I, Angela M. Mathis, Registered Professional
Reporter and Florida Professional Reporter,
hereby certify that I was authorized to and
did stenographically report the foregoing
proceedings and that the transcript is a true
and complete record of my stenographic notes.
See id. at 17. Petitioner offers no valid basis upon which to
question

the

authenticity

of

the

transcript

or

Ms.

Mathis’

certification. He also does not state, in his Discovery Motion or
Supplement, how or why the transcript is substantively incorrect
such that it would raise doubt about his guilt.
Petitioner, in a later filing, however does itemize the
alleged errors in the transcript (Doc. 26; Petitioner Affidavit).
The ten alleged errors he identifies, however, do not raise doubt
about his guilt. See Arthur, 459 F.3d at 1310. He does not object
to the entire transcript or to the portion where he tenders, under
oath, his plea colloquy. Rather, he identifies as errors only those
portions of the transcript in which the judge asks him to confirm
his understanding that he would be labeled a sexual predator if he
pleaded guilty to the charges. See Petitioner Affidavit at 2-3;
Transcript at 6-7, 8.8 (Petitioner maintains he was not advised,

appeal. See Response at 9. According to the state court docket,
which Respondents filed in support of their response to the habeas
petition (Doc. 22-1; Ex. D), Petitioner filed a motion for postconviction relief on July 20, 2016. The transcript was docketed on
October 12, 2016, and the trial court denied the motion for postconviction relief on October 28, 2016. See Ex. D at 10.
Some of Petitioner’s objections to the contents of the transcript
seem to be about word usage and not necessarily substance. For
8

7

by either the judge or his counsel, that his plea would result in
a sexual predator designation. See Petitioner Affidavit at 2-3.)
However, Petitioner’s written plea agreement (Doc. 22-1; Ex. F),
which

Petitioner

acknowledged

at

the

plea

hearing

bears

his

initials and signature, see Transcript at 8, informs him of the
sexual predator designation. Specifically, it says, “I understand
that as a result of this plea I shall be designated a Sexual
Predator . . . [and] I am Not Eligible to petition this Court to
remove [the] requirement that I register as a . . . sexual
predator.” See Ex. F at 17.
To the extent Petitioner believes he was ill-advised about
the implications of his plea, he fails to demonstrate “good cause”
that he should be granted leave to propound interrogatories on the
court reporter who transcribed the proceedings. Not only is the
“sexual predator designation” referenced elsewhere in the record,
as noted, Petitioner does not identify which ground of his Petition
the

requested

suggestion

that

information
the

would

transcript

support.
is

flawed

In

addition,

is

no

more

his
than

speculation. Thus, he has failed to demonstrate “good cause” to
permit him to propound interrogatories on Ms. Mathis to question

example, the transcript reflects that Petitioner’s attorney stated
that Petitioner’s plea was one “of convenience.” According to
Petitioner, his attorney actually said, “this is a best interest
plea.” See Petitioner Affidavit at 2.
8

the authenticity of the transcript, the certification of which
constitutes prima facie evidence that the transcript is correct.
See § 90.108(2), Fla. Stat. Thus, Petitioner’s request to propound
interrogatories on Ms. Mathis is due to be denied.
Petitioner

also

seeks

leave

to

propound

requests

for

production from “official reporters, inc. [sic] of transcriptions
of two pre-plea hearing [sic] from his state criminal trial court
proceedings
Discovery

of

August

Motion

at

31,
2.

2015

and

Petitioner

September
does

not

3,

2015.”

state

what

See
the

transcripts would demonstrate other than to say that they would
support ground 3 of his Petition. Id. Respondents refer the Court
to the state court docket sheet, which they attach in support of
their habeas response (Doc. 22-1; Ex. D). According to the state
court docket, hearings were held on August 31, 2015 and September
3, 2015, though there is no indication that the hearings were
transcribed. See Ex. D at 11 (docket entries 75, 76); see also
Response at 11. Because the transcripts were not made part of the
state court record, they are not to be considered by this Court in
its review of the Petition. See Pope v. Sec’y, Fla. Dep’t of Corr.,
752 F.3d 1254, 1263 (11th Cir. 2014) (emphasizing that a federal
court’s review in a habeas case brought under § 2254 “is limited
to the record that was presented to the state post-conviction
court”).

9

Accordingly,

Petitioner’s

Discovery

Motion

(Doc.

19),

including the Supplement (Doc. 21), is DENIED.
3.

Petitioner’s

Reply9

to

Respondents’

Response

to

Petitioner’s (1) Request to Take Judicial Notice, (2) Motion for
Leave to Engage in Discovery, and (3) Motion to Supplement Pending
Leave to Engage in Discovery (Doc. 28) is STRICKEN. This Court’s
Local Rules do not permit the filing of replies absent leave of
Court. See M.D. Fla. R. 3.01(c), Local Rules of the United States
District Court for the Middle District of Florida. Petitioner did
not seek leave to file the reply.
4.

Petitioner’s Motion to Correct the Record or Expand the

Record or to Stay the Proceedings (Doc. 25; Motion to Correct) is
DENIED. In the Motion to Correct, Petitioner seeks similar relief
to that sought in the Discovery Motion and Supplement. He seeks
“correction of [the] state court transcript of plea and sentencing
proceedings and entry of transcripts of Petitioner’s pre-plea
hearings of August 31, 2015, and September 3, 2015.” See Motion to
Correct at 1. To the extent Petitioner cites Federal Rule of Civil
Procedure 60(a) (“Corrections Based on Clerical Mistakes”), that
rule is not applicable. Rule 60 provides a means for a district
court to correct its own orders, judgments, or record.

The Court’s docket reflects that document 28 is a reply to the
Response to the Habeas Petition. See (Doc. 28). In fact, document
28 is a reply to Respondents’ Response (Doc. 27). The Court
requests the Clerk to update the docket accordingly.
9

10

Furthermore, Petitioner is not entitled to relief under Rule
7 of the Rules Governing § 2254 cases (Rule 7). As noted above,
this Court’s review is limited to the record before the state
court. See Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011)
(“[T]he record under review is limited to the record . . . before
the state court.”); see also Pope, 752 F.3d at 1263. Thus, the
Court must examine the transcript of the plea and sentencing
hearing that the state court considered and may not consider
additional transcripts that were not provided as evidence in the
state court.
Of note, Petitioner does not indicate how or why the pre-plea
hearing transcripts would demonstrate that his Petition has merit.
The state court record, provided by Respondents, contains the
certified transcript of the plea and sentencing hearing at which
Petitioner pled guilty. Petitioner does not object to portions of
the transcript in which he was sworn by the Clerk, tendered his
“plea of guilt to two counts of . . . Attempted Capital Sexual
Battery,” and recognized that his plea would mean he would not
proceed to trial the following week and would result in a lesser
prison sentence than the minimum to which he would be confined if
convicted at trial. See Transcript at 6-7.
To the extent Petitioner maintains that he was provided
ineffective assistance of counsel, the Court will consider the
relevant facts and arguments when it rules on the merits of the
11

Petition (Doc. 1) based on the Response (Doc. 22) and Reply (Doc.
30). The Petition is now ripe for this Court’s review.
5.

Petitioner’s Motion to Stay the Proceedings (Doc. 24) is

DENIED as moot. Petitioner has filed his Reply. See Petitioner’s
Reply (Doc. 30). A request to stay the proceedings pending the
Court’s ruling on the above-referenced motions is now moot.
DONE AND ORDERED at Jacksonville, Florida, this 31st day of
October, 2018.

Jax-6
c:
Thomas L. Adams, #J53827
Counsel of Record

12