Harmon v. Secretary, Department of Corrections et al (Duval County)
ORDER denying the Petition 1 and dismissing the action with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 9/16/2022. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JAMES HARMON III,
Case No. 3:19-cv-1080-MMH-LLL
DEPARTMENT OF CORRECTIONS,
Petitioner James Harmon III, an inmate of the Florida penal system,
initiated this action on September 27, 2019, 1 by filing a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). 2 In the Petition,
Harmon challenges his 2017 state court (Duval County) sentence of life
imprisonment. He raises two claims. See Petition at 5-7. Respondents have
submitted a memorandum in opposition to the Petition. See Answer in
Response to Order to Show Cause (Response; Doc. 8). They also submitted
exhibits. See Docs. 8-1 through 8-23. Harmon filed a brief in reply. See Reply
See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
For purposes of reference to pleadings and exhibits, the Court will cite the
document page numbers assigned by the Court’s electronic docketing system.
(Doc. 9). He also submitted exhibits. See Docs. 9-1 through 9-16. This action
is ripe for review.
II. Relevant Procedural History
The state court described the nature and circumstances of the criminal
offenses involving Harmon, stating in pertinent part:
It all began as a plan to get money, but
ultimately turned into a week-long crime spree that
terrorized the Riverside community in Jacksonville.
Defendant and his co-defendant kidnapped and robbed
four different individuals over that week in January
1981. Defendant and the co-defendant drove each
victim around Jacksonville, taunting the victims with
threats of violence while robbing them, showing a
wanton disregard for the terror they instilled in each
victim of their impending demise. They attempted to
murder all four victims but were only successful in
their plans as to Mr. Langston and Mr. Kennedy. Mr.
Chadwick escaped with a wound to his knee, leaving
only Mr. Burge physically unharmed.
Docs. 8-1 at 159; 9-9 at 12 (record citations omitted). The United States Court
of Appeals for the Eleventh Circuit provided a brief procedural history, stating
in pertinent part:
In 1981, Harmon, who was then 17 years old, pleaded
guilty to two counts of second degree murder, one
count of armed robbery, and one count of
kidnapping.[ 3] In a separate case, he was convicted by
a jury of one count of armed robbery and one count of
Duval County Case Nos. 81-CF-984 (armed robbery and kidnapping; victim
Robert Chadwick, Jr.), 81-CF-986 (second degree murder; victim Raymond Kennedy),
and 81-CF-987 (second degree murder; victim Clarence Langston, Jr.).
kidnapping.[ 4] In total, Harmon was adjudicated
guilty of committing six felonies, each “punishable by
imprisonment for a term of years not exceeding life
imprisonment” pursuant to Sections 782.04(2),
787.01(2), and 812.13(2)(a), Fla. Stat. (1981). When
the pleas were taken, the court advised Harmon that
the maximum sentence on each count was life
imprisonment, but that there was no plea agreement
as to the sentence. Instead of life sentences, the court
imposed six consecutive terms of one hundred years
each and retained jurisdiction to deny him parole
during the first one-third of the total sentence, or for
two hundred years. Harmon’s attorney objected that
the court could not legally retain jurisdiction over a
period greater than Harmon’s actual lifetime, but did
not move to withdraw the guilty pleas.
Harmon appealed, arguing that the court erred in
sentencing him to six hundred years and retaining
jurisdiction for two hundred years because the
sentence exceeded the statutory maximum. Harmon
requested correction of the sentences, but did not
request withdrawal of the pleas. The appellate court
affirmed and certified the following issue to the
Florida Supreme Court: “[W]hether a sentencing
court, authorized to impose for each of six felonies a
term of years not exceeding life imprisonment, may
impose six consecutive 100-year terms and retain
jurisdiction for one-third of each sentence, aggregating
200 years, to review any parole release order of the
Parole Commission.” The Florida Supreme Court
accepted jurisdiction, answered the question
affirmatively, and upheld the convictions and
sentences. Harmon v. State, 438 So. 2d 369 (Fla. 1983).
Harmon v. Barton, 894 F.2d 1268, 1269 (11th Cir. 1990) (footnotes omitted).
Duval County Case No. 81-CF-985 (armed robbery and kidnapping; victim
On July 19, 2016, Harmon filed a pro se motion to correct illegal sentence
pursuant to Florida Rule of Criminal Procedure 3.800 in Case Nos. 984 and
985. Docs. 8-1 at 24-26; 8-6 at 22-24. In the Rule 3.800 motion, he asserted that
he was entitled to resentencing for the non-homicide offenses under Graham
v. Florida, 560 U.S. 48 (2010), Florida’s 2014 juvenile sentencing legislation,
and Henry v. State, 175 So. 3d 675 (Fla. 2015). That same day, he filed a motion
for postconviction relief in Case Nos. 986 and 987. Docs. 8-11 at 201-03; 8-12
at 1-12; 8-18 at 57-71. In the postconviction motion, Harmon asserted that his
sentences violated the Eighth Amendment and the dictates in Miller v.
Alabama, 567 U.S. 460 (2012), and Atwell v. State, 197 So. 3d 1040 (Fla. 2016).
The State conceded that Harmon was entitled to resentencing on both counts
of second degree murder. Docs. 8-12 at 39; 8-18 at 92. On February 15, 2017,
the court granted Harmon’s motions and appointed counsel to represent him.
Docs. 8-1 at 27-39; 8-6 at 51-61; 8-12 at 43-52; 8-18 at 96-106. Harmon filed a
motion for a Faretta 5 inquiry and leave to proceed pro se on July 11, 2017. Doc.
8-1 at 52. After a hearing advising Harmon of the disadvantages of
representing himself, the court granted his motion, found that Harmon
knowingly and intelligently waived his right to court-appointed counsel, and
relieved Harmon’s counsel from further representation, effective July 20, 2017.
Faretta v. California, 422 U.S. 806 (1975).
Id. at 60-63.
On October 26, 2017, the court held a resentencing hearing, Docs. 8-4 at
148-206; 8-5 at 1-33, at which Harmon appeared pro se and testified, Doc. 8-5
at 2-5. On December 6, 2017, the court stated in pertinent part:
All right. Mr. Harmon, I’ve given much thought
to your cases and to you as to what is the appropriate
thing to do since this case came to my attention, and
certainly since October when we had a sentencing
hearing. Instead of going through all the reasons and
findings that I made to the sentence that I’m going to
impose, I’m not going to do that, they were written in
a sentencing order[ 6] that I’m going to give a copy of to
you, the bailiff has that for you now, hopefully it will
set out with clarity, that was my intent, to explain why
I’m doing what I’m doing. There [are] many
attachments to that order to back up the findings.
So, pursuant to those findings as to the six
counts in the four different cases, I’m going to sentence
you to life in prison, give you credit for all the time that
you’ve served, including the jail time…. These
sentences are to run concurrently with one [an]other.
As to case numbers ending in 986 and 987, the
homicide cases, I’m going to let you know that you
have a chance to have the sentence reviewed after 25
As to the cases ending in 984 and 985 [(the nonhomicide cases)], you’re entitled to a 20 year review.
Doc. 8-5 at 36-37.
Docs. 8-1 at 149-70; 9-9.
On December 12, 2017, Harmon filed a pro se motion to correct
sentencing error pursuant to Florida Rule of Criminal Procedure 3.800. Doc. 83 at 208-19. In the motion, he asked for an immediate “sentence review
hearing” and asserted that the trial court was biased and vindictive when it
sentenced him to life imprisonment, violated Eighth Amendment and ex post
facto principles, overlooked rehabilitative evidence provided by Dr. Gregory
Prichard, and denied him a meaningful opportunity for early release. Id. The
court denied the motion on December 21, 2017. Docs. 8-3 at 220-34; 8-4 at 164; 9-11.
On appeal to the First District Court of Appeal (First DCA), Harmon,
with the benefit of counsel, argued that the trial court erred when it: (1) found
that the primary purpose of sentencing is to punish a juvenile offender; (2)
imposed a life sentence; and (3) denied Harmon’s pro se motion to correct
sentencing error. Docs. 8-5 at 64 (First DCA Case No. 1D18-0111); 8-10 at 292
(1D18-0112); 8-17 at 103 (1D18-0113); 8-23 at 207 (1D18-0114). The State filed
answer briefs, Docs. 8-5 at 108; 8-10 at 336; 8-17 at 147; 8-23 at 251, and
Harmon filed reply briefs, Docs. 8-5 at 143; 8-10 at 369; 8-17 at 180; 8-23 at
284. The First DCA affirmed on August 30, 2019, Doc. 8-5 at 162, denied
Harmon’s motion for rehearing, id. at 171, and issued a mandate in each case
on March 9, 2020, Docs. 8-5 at 173; 8-11 at 5; 8-17 at 210; 8-23 at 314.
III. One-Year Limitations Period
This action was timely filed within the one-year limitations period. See
28 U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.
Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider whether such a
hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the
applicant’s factual allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.
The pertinent facts of this case are fully developed in the record before the
Court. Because the Court can “adequately assess [Harmon’s] claim[s] without
further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003), an evidentiary hearing will not be conducted.
V. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal petition for habeas corpus. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions
as a guard against extreme malfunctions in the state criminal justice systems,
and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.
34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of
final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”
Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,
Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need
not issue a written opinion explaining its rationale in order for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,
562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is
unaccompanied by an explanation, the United States Supreme Court has
[T]he federal court should “look through” the
unexplained decision to the last related state-court
decision that does provide a relevant rationale. It
should then presume that the unexplained decision
adopted the same reasoning.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be
rebutted by showing that the higher state court’s adjudication most likely
relied on different grounds than the lower state court’s reasoned decision, such
as persuasive alternative grounds that were briefed or argued to the higher
court or obvious in the record it reviewed. Id. at 1192, 1196.
If the claim was “adjudicated on the merits” in state court, § 2254(d) bars
relitigation of the claim unless the state court’s decision (1) “was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States;” or (2) “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); Richter, 562 U.S. at 97-98.
The Eleventh Circuit describes the limited scope of federal review pursuant to
§ 2254 as follows:
First, § 2254(d)(1) provides for federal review for
claims of state courts’ erroneous legal conclusions. As
explained by the Supreme Court in Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),
§ 2254(d)(1) consists of two distinct clauses: a
“contrary to” clause and an “unreasonable application”
clause. The “contrary to” clause allows for relief only
“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.” Id. at 413, 120 S. Ct. at 1523
(plurality opinion). The “unreasonable application”
clause allows for relief only “if the state court identifies
the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Id.
Second, § 2254(d)(2) provides for federal review for
determinations. Section 2254(d)(2) allows federal
courts to grant relief only if the state court’s denial of
the petitioner’s claim “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)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the
state court’s factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.
Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192
L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual
determination is not unreasonable merely because the
federal habeas court would have reached a different
conclusion in the first instance.’”[ 7] Titlow, 571 U.S. at
---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.
290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016); see Teasley v.
Warden, Macon State Prison, 978 F.3d 1349, 1356 n.1 (11th Cir. 2020). Also,
deferential review under § 2254(d) generally is limited to the record that was
before the state court that adjudicated the claim on the merits. See Cullen v.
Pinholster, 563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)
“requires an examination of the state-court decision at the time it was made”).
The Eleventh Circuit has described the interaction between § 2254(d)(2) and
§ 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3
(11th Cir. 2016).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,
134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a
state court blundered in a manner so ‘well understood and comprehended in
existing law’ and ‘was so lacking in justification’ that ‘there is no possibility
fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.
Richter, 562 U.S. at 102. A district court’s obligation is “to train its attention”
on the legal and factual basis for the state court’s ruling, not to “flyspeck the
state court order or grade it.” Meders v. Warden, Ga. Diagnostic Prison, 911
F.3d 1335, 1349 (11th Cir. 2019) (citing Wilson, 138 S. Ct. at 1191-92). Thus,
to the extent that a petitioner’s claims were adjudicated on the merits in the
state courts, they must be evaluated under 28 U.S.C. § 2254(d).
VI. Findings of Fact and Conclusions of Law
As ground one, Harmon asserts that his “sentences of life without parole,
as applied” to him as a “former juvenile,” violate the Ex Post Facto Clause.
Petition at 5. As ground two, he states that the life sentences violate his Eighth
Amendment right to be free from cruel and unusual punishment. Id. at 7.
According to Harmon, when he asked the state court to resentence him “under
the new juvenile laws,” the court resentenced him to six concurrent life
sentences. Id. at 5, 7. Respondents argue that Harmon did not properly exhaust
his claim in ground two in the state courts, and therefore the claim is
procedurally barred. Response at 14-17. Harmon did sufficiently exhaust the
claims (under grounds one and two) in his December 12, 2017 motion to correct
sentencing error. Doc. 8-3 at 208-19. The state court ultimately denied the
motion with respect to the claims, stating in pertinent part:
On October 26, 2017, this Court held a
resentencing hearing at which Defendant appeared
pro se and testified on his own behalf. Sheila Loizos
represented the State and presented the following
witnesses: (1) Michael Obringer (former Assistant
State Attorney); (2) Laura Tully (Florida Commission
on Offender Review); (3) Beverley Jackson-Severance
(Defendant’s sister); (4) Cheryl Bryan (family member
of [the victim] Mr. Langston); (5) Carter Byrd Bryan
(family member of Mr. Langston); and (6) Julie Smith
(family member of Mr. Langston). On December 6,
2017, this Court resentenced Defendant and entered a
sentencing Order that same day. (Exs. F, G.)[ 8]
In the instant Motion, Defendant raises
numerous claims attacking the sentences imposed by
this Court on December 6, 2017. Specifically,
unconstitutional under the Eighth Amendment; (2)
violate ex post facto principles; (3) violate
proportionality principles; and (4) demonstrate
judicial vindictiveness. Defendant further maintains
this Court denied him the appropriate review under
[section] 921.1402(2), Florida Statutes.
Constitutionality of Defendant’s Life Sentences
In Graham, the Court held that for a juvenile
who committed a non-homicide offense, the Eighth
Docs. 8-4 at 15-35, Sentencing Order; 36-59, Judgment.
Amendment forbids the sentence of life without parole
unless the State allows the juvenile a meaningful
opportunity for release. Graham, 560 U.S. at 82. The
Florida Supreme Court interpreted Graham to ensure
“juvenile non-homicide offenders will not be sentenced
to terms of imprisonment without affording them a
meaningful opportunity for early release based on a
demonstration of maturity and rehabilitation.” Henry,
175 So. 3d at 680.
The [United States] Supreme Court later
followed with its decision in Miller, holding that for
homicide offenses, “mandatory life-without-parole
sentences for juveniles” violate the Eighth
Amendment’s prohibition against cruel and unusual
punishment. Miller, 567 U.S. at 470. The Court ruled
that the trial court must “follow a ‘certain process –
considering an offender’s youth and attendant
characteristics – before imposing a particular penalty,’
emphasizing that ‘youth matters for purposes of
meting out the law’s most serious punishment.’”
Washington v. State, 103 So. 3d 917, 919 (Fla. 1st DCA
2012) (quoting Miller, 567 U.S. at 483). To sentence a
juvenile offender, the trial court must “take into
account how children are different, and how those
differences counsel against irrevocably sentencing
them to a lifetime in prison.” Miller, 567 U.S. at 470.
Notably, the Supreme Court did not foreclose a court’s
ability to sentence a juvenile to life in prison without
the possibility of parole in homicide cases. Id. at 480.
The Florida Legislature enacted chapter 2014220 of the Laws of Florida, designed to bring Florida’s
juvenile sentencing statutes into compliance with the
United States Supreme Court’s Eighth Amendment
juvenile sentencing jurisprudence. Horsley v. State,
160 So. 3d 393, 395 (Fla. 2015). This statute does not
foreclose the possibility of sentencing a juvenile to life
in prison for homicide and non-homicide offenses, so
long as the juvenile receives a review mechanism
within his or her sentence. § 775.082(3)(a), (b), (c), Fla.
According to Rule 3.781(b),[ 9] a court must allow
the defendant and the State “to present evidence
relevant to the offense, the defendant’s youth, and
attendant circumstances, including, but not limited to
those factors enumerated in section 921.1401(2),
Florida Statutes.” Furthermore, the court is required
to allow the defendant and the State “to present
evidence relevant to whether or not the defendant
killed, intended to kill, or attempted to kill the victim.”
Fla. R. Crim. P. 3.781(b). The amended statutes now
also provide a sentence review mechanism for
juveniles sentenced to substantial prison terms. See §
921.1402, Fla. Stat. (2014).
On October 2, 2017, this Court held a
sentencing hearing in the above-captioned cases and
allowed both Defendant and the State to present
evidence related to the factors enumerated within
section 921.1401(2), Florida Statutes. This Court
considered the information presented during that
hearing and wrote a sentencing Order to support the
sentences it imposed on December 6, 2017. (Ex. F.)
This Court’s sentences comply with the new juvenile
sentencing laws and are, therefore, constitutional. See
§§ 775.082(3)(b)2a, (c), 921.1401(2)(a)-(j), Fla. Stat.
(2017); see also Graham, 560 U.S. at 82 (“The State
need not guarantee the offender eventual release, but
if it imposes a sentence of life it must provide him or
her with some realistic opportunity to obtain release
before the end of that term.”); Miller, 567 U.S. at 480
(“Although we do not foreclose a sentencer’s ability to
[impose a life sentence] in homicide cases, we require
it to take into account how children are different, and
how those differences counsel against irrevocably
Florida Rule of Criminal Procedure 3.781, “Sentencing Hearing to Consider
the Imposition of a Life Sentence for Juvenile Offenders.”
sentencing them to a lifetime in prison.”). Defendant
is not entitled to relief.
Ex Post Facto
The Constitution prohibits States from enacting
ex post facto laws. U.S. Const. Art. I, §10. “The ex post
facto prohibition forbids the Congress and the States
to enact any law ‘which imposes a punishment for an
act which was not punishable at the time it was
committed; or imposes additional punishment to that
then prescribed.’” Weaver v. Graham, 450 U.S. 24, 28
(1981) (citation omitted).
In response to Miller, the Florida Legislature
enacted, and the Governor signed into law, a new
juvenile sentencing law, which provided juveniles
sentenced for non-homicide and homicide offenses
with an opportunity for release. The question
presented to the Florida Supreme Court in Horsley
was the impact of the newly-enacted legislation on
offenders whose offenses predated the new law.
Horsley v. State, 160 So. 3d 405 (Fla. 2015). The court
held that the new law applied to offenders whose
crimes predated its enactment, concluding that
because the Legislature had cured the constitutional
infirmity, applying the new law was “most consistent
with the legislative intent regarding how to comply
with Miller.” Id. at 406.
As stated by the Fifth District Court of Appeal,
the Florida Supreme Court’s decision in Hors[le]y
“indicate[s] that ex post facto principles generally do
not bar applying procedural changes to pending
criminal proceedings.” State v. Perry, 192 So. 3d 70, 75
(Fla. 5th DCA 2016), reh’g denied (Apr. 20, 2016),
review granted, SC16-547, 2016 WL 1399241 (Fla.
Apr. 6, 2016), and certified question answered, 210 So.
3d 630 (Fla. 2016).
This Court finds the Fifth District Court of
Appeal’s reasoning persuasive. It is clear that this new
legislation impacts the procedural nature in which
sentences for juveniles are imposed – it does not
impose a punishment for an act which was not
punishable at the time it was committed[,] nor does it
impose additional punishment to that which was
already prescribed. Accordingly, this Court finds the
new juvenile sentencing laws do not violate ex post
facto principles. Defendant is not entitled to relief.
Proportionality analysis is objective and guided
by “(i) the gravity of the offense and the harshness of
the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the
sentences imposed for commission of the same crime
in other jurisdictions.” Jean-Michel v. State, 96 So. 3d
1043, 1045 (Fla. 4th DCA 2012).
As detailed by this Court’s sentencing Order,
Defendant engaged in a week-long crime spree that
terrorized the Riverside community of Jacksonville.
(Ex. F.) Defendant’s actions resulted in the deaths of
Mr. Kennedy and Mr. Langston, and a life-long injury
to Mr. Chadwick. The violent nature of Defendant’s
crimes do[es] not offend the Constitution as
“disproportionate.” Accordingly, Defendant is not
entitled to relief.
Bias and Vindictive Sentencing
Initially, this Court finds Defendant’s
allegations of vindictive sentencing are not cognizable
in a motion to correct sentencing error. Baxter v. State,
127 So. 3d 726, 732 (Fla. 1st DCA 2013) (“We align
ourselves, however, with the Second District, which
likewise rejects the use of a Rule 3.800(b) motion as a
means for raising a judicial vindictiveness claim . . . .”
(citing Mendez v. State, 28 So. 3d 948, 950 (Fla. 2d
DCA 2010) (“imposition of a vindictive sentence is
fundamental error that may be raised for the first time
on appeal.”))). In an abundance of caution, however,
this Court briefly addresses these claims.
Defendant maintains there is inherent bias and
vindictiveness because his sentences violate ex post
facto and proportionality principles. As discussed
above, this Court finds Defendant’s sentences do not
violate ex post facto or proportionality principles. As to
vindictiveness and bias with regard to mitigation, this
Court considered all of the mitigation Defendant
presented at the sentencing hearing in the abovecaptioned case numbers. Defendant specifically
alleges this Court did not consider a report by Dr.
Gregory Prichard. While this Court granted the State
funding for an evaluation completed by Dr. Prichard,
the State neither admitted this report during the
sentencing hearing nor was the report ever provided
to this Court by Defendant. (Ex. H.)[ 10] Thus, this
Court did not review Dr. Prichard’s report because it
was not before this Court for consideration. As a
result, the only information on which this Court could
rely to assess the factors within section 921.1401(2)(a)(j), Florida Statutes, was the information admitted
into evidence during the 2017 sentencing hearing,
which was comprised of mostly documentation from
Defendant alleges he filed a Motion on or about
September 20, 2017,[ 11] requesting a review of his
sentence, and subsequently asked for a modification of
his sentence after this Court pronounced Defendant’s
sentence on December 6, 2017. At the December 14,
2017 status hearing, this Court noted that it never
received Defendant’s alleged September 20, 2017
Doc. 8-4 at 60, Consent Order Granting State’s Evaluation of the Defendant.
Doc. 8-3 at 207.
Motion for Sentence Review, and the Clerk’s docket
shows no record of this motion.[ 12]
This Court finds, however, that any allegations
related to Defendant’s request for a sentence review
are moot. As stated at the December 14, 2017 status
hearing, this Court will move forward with a sentence
review per Defendant’s written request received on
December 12, 2017. (Ex. I.)[ 13]
Docs. 8-3 at 222-27 (footnote and selected emphasis deleted); 9-11 at 4-9. The
First DCA affirmed the postconviction court’s denial of relief per curiam
without issuing a written opinion, Doc. 8-5 at 162, and denied Harmon’s motion
for a written opinion and rehearing on February 17, 2020, id. at 171.
To the extent that the appellate court decided Harmon’s claims on the
merits, the Court will address the claims in accordance with the deferential
standard for federal court review of state court adjudications. After a review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of the claims 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 light of the
evidence presented in the state court proceedings. Thus, Harmon is not
entitled to relief on the basis of these claims.
Doc. 8-5 at 45.
Doc. 8-4 at 61.
Nevertheless, even if the appellate court’s adjudication of the claims is
not entitled to deference, Harmon’s claims are without merit because the
record supports the postconviction court’s conclusion. In the aftermath of
Graham and Miller, the Florida Legislature enacted section 921.1401, titled
“Sentence of life imprisonment for persons who are under the age of 18 years
at the time of the offense; sentencing proceedings,” which became effective July
1, 2014. It provides that “the court may conduct a separate sentencing hearing
to determine if a term of imprisonment for life or a term of years equal to life
imprisonment is an appropriate sentence.” Fla. Stat. § 921.1401(1). Section
921.1401(2) sets forth a non-exhaustive list of ten factors that take into account
aspects of the defendant’s youth,
participation. That section provides:
In determining whether life imprisonment or a term of
years equal to life imprisonment is an appropriate
sentence, the court shall consider factors relevant to
the offense and the defendant’s youth and attendant
circumstances, including, but not limited to:
(a) The nature and circumstances of the offense
committed by the defendant.
(b) The effect of the crime on the victim’s family and
on the community.
(c) The defendant’s age, maturity, intellectual
capacity, and mental and emotional health at the time
of the offense.
(d) The defendant’s background, including his or her
family, home, and community environment.
(e) The effect, if any, of immaturity, impetuosity, or
failure to appreciate risks and consequences on the
defendant’s participation in the offense.
(f) The extent of the defendant’s participation in the
(g) The effect, if any, of familial pressure or peer
pressure on the defendant’s actions.
(h) The nature and extent of the defendant’s prior
(i) The effect, if any, of characteristics attributable to
the defendant’s youth on the defendant’s judgment.
(j) The possibility of rehabilitating the defendant.
Fla. Stat. § 921.1401(2)(a)-(j).
In the instant action, the trial court held a hearing in October 2017, at
which Harmon testified. After the State’s argument, Doc. 8-5 at 6-30, Harmon
argued as follows:
It is the defendant’s position that a life sentence would
be an ex post facto application of the statute for
juvenile sentencing as being harsh, mean, and
With all due respect to the State, the defendant
has chosen to remain silent and do[es] not contest
anything that’s being proffered.
Again, I do apologize for my actions as a child, a
juvenile. I was not -- I was anything but -- I’m not a
killer, I don’t kill women. I never hit my sister. I never
threatened my sister.
But it is the defendant’s position that he is
entitled to receive, okay, 40 years per sentence [to] run
concurrent[ly], and for the Court to immediately give
a sentence review hearing after that. I’ve proffered
motions to that effect. Again, a life sentence would be
just that, cruel and unusual punishment.
As far as what the State presented, they’re not
the foundation that the defendant is incorrigible,
uncommon and rare, that rare individual that is
worthy of a life sentence. That is unfounded because
the last DR [(disciplinary report)] or charge that the
defendant received was 31 years ago for an assault or
a weapon, and I miraculously went through 31 years
without having to repeat that.
I’m not a violent person. I was at one time, and
I was a child at one time. I am not a violent person
now. I’m not a child now. I have changed. Thank you,
Id. at 30-31.
The court resentenced Harmon a few months later. In a sentencing
order, the court described the circumstances of each criminal offense and
separately addressed each statutory factor listed in Florida Statutes section
921.1401(2)(a)-(j). Docs. 8-1 at 150-154, 159-68; 9-9 at 3-7, 12-21. The court
announced the sentence, stating in pertinent part:
Based on the information described in each
factor above, this Court finds that Defendant did
intend to kill Mr. Kennedy and Mr. Langston. While
Defendant may not have pulled the actual trigger, this
Court finds his active participation in these crimes, as
described throughout this Order, demonstrates intent
to kill Mr. Kennedy and Mr. Langston. Accordingly, in
case numbers 1981-CF-00986 and 1981-CF-00987,
Defendant is hereby sentenced to a term of life
imprisonment. § 775.082(3)(b)2, Fla. Stat. (2014). As
dictated by the new juvenile sentencing laws,
Defendant is entitled to a twenty-five-year review of
this sentence. §§ 775.082(3)(b)2a, 921.1402(2)(b), Fla.
As to case numbers 1981-CF-00984 and 1981CF-00985, Defendant is hereby sentenced to a term of
life imprisonment as to each count. § 775.082(3)(c),
Fla. Stat. (2014). As dictated by the new juvenile
sentencing laws, Defendant is entitled to a twentyyear review of this sentence. §§ 775.082(3)(c),
921.1402(2)(d), Fla. Stat. (2014).
Docs. 8-1 at 168; 9-9 at 21.
As to ex post facto principles, the Eleventh Circuit has stated:
Article I, Section 9, clause 3 of the United States
Constitution states, “No ... ex post facto law shall be
passed.” The Ex Post Facto Clause prohibits Congress
from enacting a law that “appl[ies] to events occurring
before its enactment ... [and] disadvantage[s] the
offender affected by it[.]” Lynce v. Mathis, 519 U.S.
433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997)
(internal quotation marks and citations omitted). An
“ex post facto inquiry ... [focuses] not on whether a
legislative change produces some ambiguous sort of
‘disadvantage,’ ... but on whether any such change
alters the definition of criminal conduct or increases
the penalty by which a crime is punishable.” Morales,
514 U.S. at 506 n.3, 115 S.Ct. 1597.[ 14] The Clause
does not “forbid any legislative change that has any
conceivable risk of affecting a prisoner’s punishment.”
Id. at 508, 115 S.Ct. 1597. Instead, the Clause
prohibits only those retroactively applied laws that
“produce a sufficient risk of increasing the measure
of punishment attached to the covered crimes,” id. at
509, 115 S.Ct. 1597, or affects “the quantum of
punishment” imposed, Dobbert v. Fla., 432 U.S. 282,
294, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). That
prohibition “operates not to protect an individual’s
right to less punishment, but rather as a means of
assuring that an individual will receive fair warning
of criminal statutes and the punishments they carry.”
Hock v. Singletary, 41 F.3d 1470, 1472 (11th Cir. 1995)
(citing Dobbert, 432 U.S. at 298, 97 S.Ct. 2290, and
California Dep’t of Corr. v. Morales, 514 U.S. 499 (1995).
Weaver v. Graham, 450 U.S. 24, 28–30, 101 S.Ct. 960,
67 L.Ed.2d 17 (1981)).
United States v. Rosello, 737 F. App’x 907, 908 (11th Cir. 2018). Here,
Harmon’s assertion that the trial court’s imposition of life sentences is a
violation of ex post facto principles is meritless. See Horsley v. State, 160 So.
3d 393, 405 (Fla. 2015) (“We conclude that applying chapter 2014-220, Laws of
Florida, to all juvenile offenders whose sentences are unconstitutional under
Miller is the appropriate remedy.”). As such, Harmon is not entitled to federal
habeas relief as to ground one.
Nor is Harmon entitled to federal habeas relief with respect to his
assertion that his life sentences amount to cruel and unusual punishment
under the Eighth Amendment. Harmon asserts that his legal arguments are
“consistent” with Montgomery v. Louisiana, 577 U.S. 190 (2016), 15 and that life
imprisonment “poses a danger of becoming a death sentence” because he is an
elderly inmate who feels threatened by “the actual presence of COVID-19” at
Union Correctional Institution. Reply at 10. The resentencing court properly
applied Florida Statutes section 921.1401 by holding an individualized
The United States Supreme Court stated that “Miller drew a line between
children whose crimes reflect transient immaturity and those rare children whose
crimes reflect irreparable corruption” and that Miller “rendered life without parole
an unconstitutional penalty” for “juvenile offenders whose crimes reflect the transient
immaturity of youth.” Montgomery, 577 U.S. at 208-09.
sentencing hearing to determine whether a sentence of life in prison or a term
of years equal to life imprisonment was an appropriate sentence for Harmon,
an offender who was under eighteen years old at the time he committed the
crimes. The court made findings relevant to Harmon’s youth and attendant
circumstances, undoubtedly reflecting that the resentencing court performed
the appropriate analysis.
As to the factor concerning the effect of immaturity, impetuosity, or
failure to appreciate the risks and consequences on Harmon’s participation in
the offenses, the court stated:
While Defendant did not present any evidence
as to the science of adolescent brains, this Court is
aware of the science and has fully and thoughtfully
considered the science on adolescent brain
development in deciding an appropriate and
constitutional sentence. Higher courts have stated
that children are constitutionally different[ 16] and this
Court agrees. Adolescent brain science sheds light on
some of the underlying causes of poor judgment and
impulsive decision making in youth. Adolescents are
more likely to be impulsive, emotional, and unable to
appreciate the long-term consequences of their
actions. Adolescents are also more likely to give into
their impulsive thoughts and engage in risky behavior
in order to satisfy their short-term goals.
This Court initially considered the crime against
Mr. Chadwick to be more impulsive than the
See Miller, 567 U.S. at 480 (stating “we require [the sentencing court] to take
into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison”) (footnote omitted); Horsley, 160
So. 3d at 399.
remaining three incidents. There is some evidence in
the record that Mr. Chadwick called Defendant and
the co-defendant a derogatory term when they asked
for a ride home, which may have ignited an impulsive
response to the situation as Defendant and the codefendant did not have a plan once they had Mr.
Chadwick in the car. However, Defendant and the codefendant brought a firearm to the interaction with
Mr. Chadwick indicating some thought as to what they
wanted to do, which belies the argument that this
crime was the impulsive action of an adolescent
As to the remaining crimes, however, it is clear
that Defendant and co-defendant planned and
calculated their actions. For each offense, Defendant
and co-defendant approached their victim with the
pretense of asking for directions. Defendant and the
co-defendant, with the exception of the first victim,
chose a vulnerable, older male. Defendant and the codefendant brought a firearm to each crime and
attempted to drive the victims to an isolated area on
the Northside with the intent to execute them.
Defendant and his co-defendant also went to great
lengths to cover-up their involvement in the crimes;
backing Mr. Kennedy’s car into a parking spot so that
the tags would be concealed, fleeing to Miami to avoid
detection, and fabricating a story about Giddieup to
avoid prosecution for Mr. Kennedy’s murder.
While this Court has given adolescent brain
science great weight, it finds that Defendant’s actions
go well beyond the immaturity and impetuosity
expected of a juvenile brain. Nothing in the record
before this Court supports a conclusion that Defendant
was caught up in the moment, or lacked time to
thoroughly think about the consequences of his
actions. Defendant could have stopped his
involvement with his co-defendant after the first
incident with Mr. Chadwick. Yet, after the first crime
with Mr. Chadwick, Defendant and the co-defendant
met and decided they would continue down a
treacherous path. Defendant made the conscious
decision to continue his crime spree and ended or
forever changed the lives of the victims.
This Court finds the level of detail and
sophistication that went into committing this crime
spree in 1981 goes beyond the rash and impulsive
nature expected of a juvenile mind, and instead
demonstrates how little influence Defendant’s youth
had on his actions. Indeed, his actions show something
more sinister than mere transient youth.
Docs. 8-1 at 164-65; 9-9 at 17-18. After concluding that the statutory factors
weighed in favor of imposing life imprisonment, the trial court resentenced
Harmon to life in prison.
Notably, Harmon “has not received an inescapable, irrevocable life
sentence” because he has a meaningful opportunity for review under Florida
Statutes section 921.1402. Bell v. State, 313 So. 3d 1183, 1189 (Fla. 1st DCA
2021) (“Because section 1402 provides a meaningful opportunity for release, a
life sentence which is subject to its review does not violate the Eighth
Amendment, and a court sentencing a juvenile offender to life under these
circumstances need not make any findings of ‘irreparable corruption.’”) (citing
Phillips v. State, 286 So. 3d 905, 909 (Fla. 1st DCA 2019)); see Calabrese v.
State, 325 So. 3d 938 (Fla. 5th DCA 2021) (stating “a sentence imposed after
proper consideration of the section 921.1401 factors, with the opportunity for
a judicial review of the sentence at twenty-five years pursuant to section
921.1402, is constitutional under the Eighth Amendment”). Insofar as Harmon
challenges the state court’s determination as to the weighing of the statutory
factors, “it is the province of the sentencing court to determine how much
weight should be given to each” factor during juvenile resentencing. Bell, 313
So. 3d at 1189. Thus, Harmon is not entitled to federal habeas relief as to his
assertions under ground two.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Harmon seeks issuance of a certificate of appealability, the
undersigned opines that a certificate of appealability is not warranted. 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, Harmon “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, 537 U.S. at 335-36 (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)).
Where a district court has rejected a petitioner’s constitutional claims on
the merits, the petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.
See Slack, 529 U.S. at 484. However, when the district court has rejected a
claim on procedural grounds, the petitioner must show that “jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, the Court will deny a certificate of
Therefore, it is now
ORDERED AND ADJUDGED:
The Petition (Doc. 1) is DENIED, and this action is DISMISSED
The Clerk of the Court shall enter judgment denying the Petition
and dismissing this case with prejudice.
If Harmon appeals the denial of the Petition, the Court denies a
certificate of appealability. Because the 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.
The Clerk of the Court is directed to close this case and terminate
any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 16th day of
James Harmon III, FDOC #080164
Counsel of Record
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