Wallace v. Secretary, Department of Corrections et al
Filing
15
OPINION AND ORDER denying 1 Petition for writ of habeas corpus and dismissing case with prejudice. The Clerk shall enter judgment accordingly and close the case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 11/4/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ALFRED OLIVER WALLACE,
Petitioner,
v.
Case No:
5:11-cv-325-Oc-29PRL
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS and FLORIDA
ATTORNEY GENERAL,
Respondents.
/
OPINION AND ORDER
Alfred Oliver Wallace (“Petitioner”) initiated this action
for habeas corpus relief pursuant to 28 U.S.C. § 2254 by filing
a petition (Doc. 1).
Upon consideration of the petition, the
Court ordered Respondents to show cause why the relief sought by
Petitioner
should
not
be
granted
(Doc.
4).
Thereafter,
Respondents filed a response in compliance with this Court’s
instructions and with the Rules Governing Section 2254 Cases in
the United States District Courts (Doc. 6).
Petitioner filed a
reply to the response (Doc. 10).
Petitioner raises one claim in his petition.
He alleges
that the prosecution breached “the express and implied terms of
Petitioner's
plea
agreement
in
violation
of
his
due
process
rights under the United States Constitution.” (Doc. 1 at 5).
Because this Court can “adequately assess [Petitioner's]
claim
without
further
factual
development[,]”
an
evidentiary
hearing will not be conducted. Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003).
Upon due consideration of the petition,
the response, the reply, and the state court record, this Court
concludes that Petitioner's claim should be denied.
I.
Background and Procedural History
On October 18, 2007, Petitioner was charged by information
in Case No. 07-CF-4212 with burglary of a dwelling, grand theft,
attempted burglary of a dwelling, and aggravated assault with a
deadly weapon (Ex. 1).1
On April 2, 2008, pursuant to a written plea agreement,
Petitioner pleaded guilty as charged and was sentenced as a
Prison Releasee Reoffender to concurrent terms of fifteen, five,
five, and five years in prison (Ex. 2; Ex. 3).
The sentences
were to run consecutively to a five year sentence imposed for
Petitioner's violation of probation in Case No. 99-CF-2108 (Ex.
2; Ex. 3). Petitioner also pleaded guilty in Case No. 07-CF-4211
to burglary of a dwelling and grand theft and was sentenced as a
Prison Releasee Reoffender to ten months in prison and five
1
Unless otherwise noted, references to Exhibits are to those
filed by Respondents on September 22, 2011 (Doc. 8).
2
years of probation (Ex. 4; Ex. 5; Ex. 6).
Petitioner did not
file a direct appeal from any of his convictions or sentences.
On February 24, 2009, Petitioner filed a motion pursuant to
Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule
3.850 motion”) disputing his designation as a Prison Releasee
Reoffender and arguing that the State had not abided by the
terms of the plea agreement (Ex. 7).
The postconviction court
denied Petitioner's claim that the State had not abided by the
terms
of
the
plea
agreement,
but
ordered
that
an
amended
judgment and sentence be filed to clarify the court’s original
intention at sentencing (Ex. 8).
Petitioner appealed the order
to the Fifth District Court of Appeal which affirmed the denial
of Petitioner's second claim, but directed the trial court to
correct Petitioner's grand theft judgments to remove the Prison
Releasee Reoffender designation (Ex. 11); Wallace v. State, 25
So. 3d 1269 (Fla. 5th DCA 2010).
On January 12, 2011, Petitioner filed a new Rule 3.850
motion arguing that newly discovered evidence provided an alibi
showing that he could not be guilty in Case No. 07-CF-4211 (Ex.
14).
On January 23, 2011, Petitioner filed a Rule 3.800 motion
contesting the ten month sentence in Case No. 07-CF-4211 (Ex.
15).
The postconviction court denied relief on the Rule 3.850
motion and ordered a response from the State on the Rule 3.800
3
motion (Ex. 16).
The Fifth District Court dismissed the Rule
3.800 motion for lack of jurisdiction and otherwise per curiam
affirmed (Ex. 17); Wallace v. State, 70 So. 3d 602 (Fla. 5th DCA
2011).
Petitioner filed the instant petition in this Court on May
31, 2011.
II.
Governing Legal Principles
a.
The
Antiterrorism
(“AEDPA”)
Effective
Death
Penalty
Act
Pursuant to the AEDPA, federal habeas relief may not be
granted with respect to a claim adjudicated on the merits in
state court unless the adjudication of the claim:
(1)
resulted in a decision that 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)
resulted in a decision that 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).
A state court’s summary rejection of a
claim, even without explanation, qualifies as an adjudication on
the merits which warrants deference.
Ferguson v. Culliver, 527
F.3d 1144, 1146 (11th Cir. 2008).
“Clearly established federal law” consists of the governing
legal
principles,
rather
than
the
4
dicta,
set
forth
in
the
decisions of the United States Supreme Court at the time the
state court issues its decision. Carey v. Musladin, 549 U.S. 70,
74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
A decision is “contrary to” clearly established federal law if
the state court either: (1) applied a rule that contradicts the
governing
law
set
forth
by
Supreme
Court
case
law;
or
(2)
reached a different result from the Supreme Court when faced
with materially indistinguishable facts.
Ward v. Hall, 592 F.3d
1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12,
16 (2003).
A
state
application”
court
of
the
decision
Supreme
involves
Court’s
an
“unreasonable
precedents
if
the
state
court correctly identified the governing legal principle, but
applied
it
to
the
facts
of
the
petitioner’s
case
in
an
objectively unreasonable manner, Brown v. Payton, 544 U.S. 133,
134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.
2000) or, “if the state court either unreasonably extends a
legal principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.”
234
F.3d
at
unreasonable
531
(quoting
application
Williams,
inquiry
529
U.S.
“requires
at
the
Bottoson,
406).
state
The
court
decision to be more than incorrect or erroneous,” rather, it
5
must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S.
63, 75-77 (2003) (citation omitted); Mitchell, 540 U.S. at 1718; Ward, 592 F.3d at 1155.
Finally, the Supreme Court has clarified that: “a decision
adjudicated
on
the
merits
in
a
state
court
and
based
on
a
factual determination will not be overturned on factual grounds
unless
objectively
unreasonable
in
light
of
the
evidence
presented in the state-court proceeding.” Miller–El v. Cockrell,
537 U.S. 322, 340 (2003) (dictum).
§
2254(d),
a
federal
court
When reviewing a claim under
must
bear
in
mind
that
any
“determination of a factual issue made by a State court shall be
presumed to be correct[,]” and the petitioner bears “the burden
of
rebutting
convincing
the
presumption
evidence.”
28
of
U.S.C.
correctness
§
by
2254(e)(1).
clear
See,
and
e.g.,
Miller–El, 537 U.S. at 340 (explaining that a federal court can
disagree with a state court’s factual finding and, when guided
by AEDPA, “conclude the decision was unreasonable or that the
factual
premise
was
incorrect
by
clear
and
convincing
evidence”).
b.
Statute of Limitations
Pursuant to the requirements set forth in 28 U.S.C. § 2244,
as amended by the AEDPA, a one year period of limitation applies
to
the
filing
of
a
habeas
petition
6
by
a
person
in
custody
pursuant to a state court judgment.
This limitation period runs
from the latest of:
(A)
the date on which the judgment became final
by the conclusion of direct review or the
expiration of the time for seeking such
review;
(B)
the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant
was prevented from filing by such State
action;
(C)
the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if that right has been newly
recognized by the Supreme Court and made
retroactively
applicable
to
cases
on
collateral review; or
(D)
the date on which the factual predicate of
the claim or claims presented could have
been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1).
Here, Petitioner does not allege, nor
does it appear from the pleadings or record, that the statutory
triggers set forth in §§ 2244(d)(1)(B)-(D) apply.
the
statute
statutory
of
limitations
trigger,
which
conviction became final.
Petitioner
was
is
is
measured
the
date
on
from
Therefore,
the
which
remaining
Petitioner's
28 U.S.C. § 2244(d)(1).
initially
sentenced
on
April
2,
2008.
Consequently, that judgment of conviction became final thirty
days later on May 2, 2008. See Gust v. State, 535 So.2d 642, 643
7
(Fla. 1st DCA 1988) (holding that when a defendant does not
appeal his conviction or sentence, the judgment and sentence
become
final
when
appeal expires).
the
thirty-day
time
period
for
filing
an
Respondents assert that because May 2, 2008 is
the pertinent date of finality, the instant petition is untimely
filed and barred from this Court’s consideration (Doc. 6).
Petitioner counters that his sentence was corrected on June
24, 2010, and pursuant to Ferreira v. Sec’y, Dep’t of Corr., 494
F.3d 1286 (11th Cir. 2007), this is the operative date from
which his sentence should be calculated (Doc. 10 at 1-2).
Ferreira,
the
Eleventh
Circuit
addressed
the
issue
of
In
what
constitutes a judgment for purposes of the AEDPA’s statute of
limitations when a petitioner is resentenced in state court,
but,
like
original
concluded
Petitioner,
conviction.
that
the
raised
claims
Id.
1293.
at
judgment
on
relating
The
only
Eleventh
resentencing
is
to
the
Circuit
the
proper
judgment to trigger the federal limitations period because a
judgment is based on both a conviction and a sentence.
Id.
Under the reasoning in Ferreira, Petitioner's corrected judgment
became final on July 24, 2010, and he had until July 24, 2011 to
8
file a habeas petition.2
The instant petition was filed on May
31, 2011, and the Court concludes that it was timely.
III.
Analysis
Petitioner asserts that the guilty pleas he entered in Case
Nos. 2007-CF-4211 and 2007-CF-4212 were not knowing, voluntary,
and
intelligent,
promises
in
but
were
violation
of
instead,
clearly
“induced
established
by
unfulfilled
federal
law
as
determined by the United States Supreme Court and in violation
of
the
United
States
Constitution[.]”
(Doc.
1
at
7-8).
Specifically, Petitioner alleges that Assistant State Attorney
Peter Brigham (“Brigham”) promised Petitioner that if he pleaded
guilty, Brigham would conduct an investigation into Petitioner's
alibi defense and would investigate an alternate suspect whom
Petitioner believed to be the actual perpetrator of the crimes
(Doc.
1
at
7).
Petitioner
asserts
that,
if
Brigham
had
fulfilled the promise and investigated, he would have eventually
been exonerated and released from prison. Id. at 8.
2
The state court record does not appear
corrected judgment, but the order from
an amended judgment was issued on June
will use this date as the date of his
13).
9
to contain
the trial
24, 2010,
corrected
a copy of the
court to file
and the Court
judgment (Ex.
Petitioner
motion,
and
raised
the
this
claim
postconviction
in
his
court
first
denied
Rule
the
3.850
claim
as
conclusively refuted by the record:
In ground two, Defendant claims that the
State has not abided by all of the terms of
the plea agreement.
Defendant claims that
the
State
promised
Defendant
that
an
investigation
would
be
conducted
after
Defendant entered his plea, into possible
suspects who may have committed the crimes
Defendant was accused of.
Although the
State and Defendant may have discussed other
suspects, there was no agreement or promise
by
the
State
to
conduct
any
further
investigation mentioned at the sentencing
hearing or in the written plea agreement.
See attached Waiver of Rights and Plea
agreement, signed by Defendant on April 2,
2008; Transcript of Change of Plea and
Sentencing dated April 2, 2008.
Therefore
Defendant's
claim in ground two is refuted
by the record and without merit.
(Ex. 8).
A review of the record supports the postconviction
court’s conclusions.
At his plea colloquy, Petitioner repeatedly agreed that he
was
giving
up
all
defenses
to
the
charges
against
him
in
exchange for a fifteen year sentence (Ex. 8 at 6, 9, 19, 20).3
The
court
specifically
inquired
as
to
Petitioner's
understanding:
3
Petitioner's decision to plead guilty, despite his alleged
alibi, was not unreasonable. He faced at least sixty years in
prison if convicted at trial (Ex. 8 at 4).
In addition, the
prosecution agreed to drop another charge in pending Case No.
2008-CF-1068 in exchange for the plea. Id.
10
And I think Mr. Brigham eluded to the fact
you might have some defenses to these
charges and – you know, if you went to trial
you may be found not guilty.
You may be
found guilty, you know, that’s a right that
you have, and by pleading guilty you’re
giving up that right.
Id. at 20.
court
Petitioner affirmed that he understood. Id.
inquired
about
the
nature
of
Petitioner's
The
alleged
defenses, and Brigham explained that Petitioner claimed to be
working in Indiana at the time of the burglaries and that a man
named Glenn Kessing was the actual burglar. Id. at 23.
Brigham
said that he interviewed Kessing, but did not find him credible.
Id.
Brigham noted that Petitioner had not provided contact
information for any of his alleged alibi witnesses in Indiana.
Id. at 23-24.
Petitioner was asked whether he wanted to say
anything to the court before the imposition of sentence, but he
indicated that he did not wish to do so. Id. at 25.
Petitioner's own representations to the trial court during
his
plea
colloquy
constitute
"a
subsequent collateral proceedings.
formidable
barrier
in
any
Solemn declarations in open
court carry a strong presumption of verity."
Blackledge v.
Allison, 431 U.S. 63, 73-74 (1977); see also Stano v. Dugger,
921
F.2d
understands
1125,
the
1141
(11th
charges
Cir.
against
1991)
him,
(“If
a
defendant
understands
the
consequences of a guilty plea and voluntarily chooses to plead
11
guilty, without being coerced to do so, the guilty plea will be
upheld on federal review.”). Petitioner clearly indicated to the
trial court that he knew he waived all defenses to the counts
against him by entering a plea and that he was willing to do so
in exchange for a fifteen year sentence (Ex. 8 at 9).
In addition to Petitioner's assertions at trial that he
understood that he waived all defenses, Petitioner signed a plea
agreement which stated:
I have not been promised any reward nor has
it been suggested that I will be rewarded in
any manner, or that I will be given any
leniency other than the terms set forth in
this document, in return for my entering
this plea.
No person has used any threats,
force, pressure or intimidation to induce me
to make this plea.
No promises concerning
gain time or potential release dates have
been made to me.
(Ex. 2) (emphasis added).
The plea agreement did not indicate
that the state attorney’s office would continue to investigate
Petitioner's
colloquy
and
crime
the
after
plea
he
entered
agreement
a
plea.
support
the
Both
the
plea
postconviction
court’s conclusion that “there was no agreement or promise by
the State to conduct any further investigation mentioned at the
sentencing hearing or in the written plea agreement.” (Ex. 8).
Petitioner asserts that the postconviction court erred by
relying solely upon the plea colloquy and the plea agreement to
reject this claim (Doc. 10).
He suggests that Respondents have
12
purposefully
omitted
relevant
evidence
from
the
record
by
failing to include with their response a transcript of the plea
negotiations
Petitioner
between
notes
that
Brigham
the
and
Petitioner.
transcript
was
“made
Id.
at
5.
part
of
the
record in the state trial court” and that the transcript shows
that he was “led to believe that even if he plead guilty, an
investigation would continue into his alibi, and if verified,
would
result
in
withdrawal
exoneration.” Id. at 7-8.
of
the
plea
and
subsequent
Indeed, at the plea colloquy, Brigham
informed the court that he had recorded the plea negotiations
and that “those plea negotiations are a matter of record.” (Ex.
8 at 4).4
4
Although they were recorded, it does not appear that the State
had the plea negotiations transcribed for the record on appeal.
Petitioner had the recording of the meeting transcribed for the
purposes of his federal habeas petition and included it as an
attachment to his reply (Doc. 10).
This Court concludes that
consideration of the transcript is not barred by Cullen v.
Pinholster, 131 S. Ct. 1388 (2011)(review under § 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the claim on the merits). Unlike the petitioner in
Pinholster, Petitioner is not seeking to introduce new evidence
in a federal habeas corpus proceeding. Rather, he is seeking to
augment the record to include the transcript of a meeting that
was discussed at his plea colloquy and was the subject of his
second claim in his Rule 3.850 motion (Ex. 7 at 8) (referencing
the “county jail recorded interview”).
Moreover, although it
does not appear that the recording was transcribed before
Petitioner had it done, there is nothing in the record to
suggest that the postconviction court did not listen to the
recording; it was brought to the court’s attention at the plea
colloquy (Ex. 8 at 4).
13
The
transcript
does
not
convince
this
Court
that
the
postconviction court’s rejection of this claim was unreasonable.
To
the
contrary,
the
transcript
makes
clear
that
Brigham
explained to Petitioner that he could have a public defender
look into his defenses and that Brigham would hold open the plea
offer until the public defender had a chance to investigate
(Doc. 10 at 20).5
Brigham offered to ask the judge to appoint a
public defender to look into Petitioner's alleged alibis. Id. at
23-24.
After
Petitioner
attempted
to
explain
to
Brigham
his
innocence and the witness’ mistaken identification of him as the
burglar, the following exchange occurred:
PETITIONER:
And he kept saying – he didn’t say, you’re
the man.
He says, this is the truck that
was at my house trying to burglarize my
house. This girl had this truck and came to
my house.
BRIGHAM:
Okay. Well, here’s – here’s what I suggest
you do, Mr. Wallace, and you – I’m not your
attorney, but this is life advice. I think
you ought to go to the judge and ask for a
public defender, if you can’t hire another
private attorney because, you know –
PETITIONER:
I mean –
BRIGHAM:
-- we’re talking about fifteen years here.
5
Prior to his negotiations with Brigham, Petitioner had fired
his attorney and was representing himself (Doc. 1 at 6).
14
(Doc. 10 at 26-27).
After Petitioner vacillated on whether he
should plead, Brigham told him to “[t]hink about a PD because
whoever they give me in Indiana, I will talk to them” and “[i]f
you get yourself a new lawyer, I’ll keep [the plea agreement]
open.” Id. at 45-46.
Petitioner expressed his understanding,
noting, “but I have to get a PD and let it be investigated, and
then if it goes to the point where we’re at now, the offer’s
still on.” Id. at 49.
Brigham stressed to Petitioner that he
could wait to sign the plea agreement until after his public
defender had investigated the alibi defenses, but once he was
sentenced,
years.
Petitioner
would
have
to
give
the
state
fifteen
Id. at 50.
At no point in the plea negotiations did Brigham offer to
undertake the investigation himself or to further investigate
Petitioner's alibi defenses after he signed the plea agreement.
Rather, Brigham repeatedly urged Petitioner to have a public
defender look into the plea agreement and the alibi defenses,
and indicated that he would consider evidence brought forth by
the public defender.
However, Brigham made it clear that if
Petitioner accepted the plea offer, he would receive at least
fifteen years in prison (Doc. 10 at 19, 20, 23, 24, 26, 28, 30,
45, 46, 49).
15
Accordingly,
in
addition
to
being
refuted
by
the
plea
colloquy and the plea agreement, the transcripts of the plea
negotiations compels a conclusion that Brigham did not offer to
investigate Petitioner's alibi in exchange for a guilty plea.
Therefore, Petitioner's assertion that the postconviction denial
of this claim was based upon an unreasonable determination of
the facts is conclusively refuted by the record, and this claim
is denied. 28 U.S.C. § 2254(d).
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
IV.
Certificate of Appealability
Petitioner
appealability.
is
not
entitled
to
a
certificate
of
A prisoner seeking a writ of habeas corpus has
no absolute entitlement to appeal a district court's denial of
his petition. 28 U.S.C. § 2253(c)(1).
Rather, a district court
must first issue a certificate of appealability (“COA”).
[COA]
may
issue
.
.
.
only
if
the
applicant
has
“A
made
a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To make such a showing, Petitioner must
demonstrate
court's
that
“reasonable
assessment
of
the
jurists
would
constitutional
find
claims
the
district
debatable
or
wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack
v.
McDaniel,
529
U.S.
473,
16
484
(2000)),
or
that
“the
issues
proceed
presented
were
further,’”
‘adequate
Miller–El,
to
537
deserve
U.S.
encouragement
at
336
to
(citations
omitted). Petitioner has not made the requisite showing in these
circumstances.
Because
Petitioner
is
not
entitled
to
a
certificate
of
appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. The Petition for Writ of Habeas Corpus filed by Alfred
Oliver
Wallace
is
DENIED,
and
this
case
is
DISMISSED
WITH
PREJUDICE.
2.
Petitioner is DENIED a Certificate of Appealability and
leave to proceed in forma pauperis.
3. The Clerk of the Court is directed to terminate all
pending
motions,
enter
judgment
accordingly,
and
close
this
case.
DONE AND ORDERED at Fort Myers, Florida, this
of November, 2013.
SA: OrlP-4 10-29
Copies to: All parties of record
17
4th
day
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