Hinton v. Secretary, Department of Corrections et al
Filing
35
ORDER dismissing case. The Amended Petition for Writ of Habeas Corpus filed by Michael D. Hinton (Doc. No. 10) is DENIED, and this case is DISMISSED WITH PREJUDICE. The Clerk of the Court shall enter judgment accordingly.Petitioner is DENIED a Certificate of Appealability Signed by Judge Roy B. Dalton, Jr. on 7/31/2012. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MICHAEL D. HINTON,
Petitioner,
v.
CASE NO. 6:09-cv-697-Orl-37KRS
SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C.
section 2254 (Doc. No. 1). Upon consideration of the amended petition (Doc. No. 10),
the Court ordered Respondents to show cause why the relief sought in the petition
should not be granted.
Thereafter, Respondents filed a response to the amended
petition for writ of habeas corpus in compliance with this Court=s instructions and with
the Rules Governing Section 2254 Cases for the United States District Courts (Doc. No. 14).
Petitioner filed a reply to the response (Doc. No. 24).
Petitioner alleges ten claims for relief in his habeas petition: (1) trial counsel was
ineffective for failing to investigate or present evidence of Petitioner=s medical disability
at the violation of community control (AVCC@) hearing; (2) trial counsel was ineffective
for failing to object to false and misleading testimony of the State's sole witness at the
VCC hearing; (3) trial counsel was ineffective for failing to sever his pending criminal
charges that were unrelated to the VCC hearing; (4) trial counsel was ineffective for
failing to advise Petitioner of his right to withdraw his guilty plea; (5) trial counsel was
ineffective for failing to request transcription of the November 30, 2006, plea and
sentencing hearing; (6) trial counsel was ineffective for failing to object to the
prosecutor=s prejudicial statements and actions; (7) trial counsel was ineffective for
failing to investigate whether Petitioner could properly be placed on drug offender
community control; (8) trial counsel was ineffective for failing to object to the
discrepancy between the orally pronounced sentence and the written sentence; (9)
Petitioner=s due process rights were violated when an incomplete record was provided
on appeal; and (10) trial counsel was ineffective for advising Petitioner to accept an
illegal sentence. For the following reasons, the petition for writ of habeas corpus is
denied.
I.
Procedural History
Petitioner was charged by information with two counts of sale of cocaine.
Petitioner entered guilty pleas to both counts in exchange for a two-year term of drug
offender community control.
On November 30, 2006, the trial court accepted
Petitioner's guilty plea and imposed the agreed-upon sentence.
An affidavit of
violation of community control was filed on December 13, 2006, in which Petitioner's
community control officer attested that Petitioner failed to report to the Probation and
Parole Office within one business day of being sentenced.
The trial court held a
hearing on the violation, after which it revoked Petitioner's community control and
2
sentenced him to two concurrent ten-year terms of imprisonment.
Petitioner
appealed, and appellate counsel filed an Anders1 brief and moved to withdraw from the
case. The Fifth District Court of Appeal granted counsel's motion to withdraw and
affirmed per curiam.
Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the
Florida Rules of Criminal Procedure, in which he alleged nine grounds for relief. The
trial court summarily denied Petitioner's claims.
The appellate court per curiam
affirmed the lower court's denial of Petitioner's post-conviction motion.
Petitioner
then filed a second Rule 3.850 motion for post-conviction relief. The trial court
summarily denied Petitioner's claims on the merits, and the Fifth District Court of
Appeal affirmed per curiam.
Petitioner also filed a Rule 3.800(a) motion to correct illegal sentence, which was
denied by the trial court. The appellate court affirmed per curiam. Finally, Petitioner
filed a third Rule 3.850 motion that raised two claims. Prior to the trial court's ruling
on the motion, Petitioner filed a fourth Rule 3.850 motion which raised eight additional
claims. The trial court denied the motions as untimely and successive. Petitioner
appealed, and the Fifth District Court of Appeal per curiam affirmed.
The instant
amended habeas corpus petition followed.
II.
Legal Standards
A.
1
Standard of Review Under the Antiterrorism Effective Death Penalty Act
Anders v. California, 386 U.S. 738 (1967).
3
(AAEDPA@)
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). The phrase Aclearly established Federal law,@ encompasses only
the holdings of the United States Supreme Court Aas of the time of the relevant
state-court decision.@
Williams v. Taylor, 529 U.S. 362, 412 (2000).
A[S]ection 2254(d)(1) provides two separate bases for reviewing state court
decisions; the >contrary to= and >unreasonable application= clauses articulate
independent considerations a federal court must consider.@
Maharaj v. Sec=y for Dep=t. of
Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed
by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir.
2001):
Under the Acontrary to@ clause, a federal court may grant the writ if the
state court arrives at a conclusion opposite to that reached by [the United
States Supreme Court] on a question of law or if the state court decides a
case differently than [the United States Supreme Court] has on a set of
materially indistinguishable facts. Under the >unreasonable application=
clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the United States
Supreme Court=s] decisions but unreasonably applies that principle to the
facts of the prisoner's case.
4
Even if the federal court concludes that the state court applied federal law incorrectly,
habeas relief is appropriate only if that application was Aobjectively unreasonable.@ Id.
Finally, under ' 2254(d)(2), a federal court may grant a writ of habeas corpus if
the state court=s decision Awas based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.@
A determination of a
factual issue made by a state court, however, shall be presumed correct, and the habeas
petitioner shall have the burden of rebutting the presumption of correctness by clear
and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. ' 2254(e)(1).
B.
Standard for Ineffective Assistance of Counsel
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
established a two-part test for determining whether a convicted person is entitled to
relief on the ground that his counsel rendered ineffective assistance: (1) whether
counsel=s performance was deficient and Afell below an objective standard of
reasonableness@; and (2) whether the deficient performance prejudiced the defense.2
Id. at 687-88. A court must adhere to a strong presumption that counsel=s conduct falls
within the wide range of reasonable professional assistance.
Id. at 689-90.
AThus, a
court deciding an actual ineffectiveness claim must judge the reasonableness of
counsel=s challenged conduct on the facts of the particular case, viewed as of the time of
2In
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the United States Supreme Court
clarified that the prejudice prong of the test does not focus solely on mere outcome
determination; rather, to establish prejudice, a criminal defendant must show that
counsel=s deficient representation rendered the result of the trial fundamentally unfair
or unreliable.
5
counsel=s conduct.@
Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective
assistance of counsel:
has nothing to do with what the best lawyers would have done. Nor is the
test even what most good lawyers would have done. We ask only whether
some reasonable lawyer at the trial could have acted, in the circumstances,
as defense counsel acted at trial. Courts also should at the start presume
effectiveness and should always avoid second guessing with the benefit of
hindsight. Strickland encourages reviewing courts to allow lawyers
broad discretion to represent their clients by pursuing their own strategy.
We are not interested in grading lawyers= performances; we are interested
in whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under
those rules and presumptions, Athe cases in which habeas petitioners can properly
prevail on the ground of ineffective assistance of counsel are few and far between.@
Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
III.
Analysis
A.
Claim One
Petitioner alleges trial counsel was ineffective for failing to investigate or present
evidence of his medical disability, which he claims caused him to violate his community
control (Doc. No. 10 at 5). Petitioner states that had counsel investigated, he would
have ascertained that Petitioner=s failure to appear at the probation office was due to his
disabled status, which affected his mobility.
Id.
Petitioner raised this claim in his first Rule 3.850 motion for post-conviction relief
(App. F).
The trial court denied the claim pursuant to Strickland, finding that
6
Petitioner=s own testimony at the VCC hearing refuted his claim (App. G at 2). The
trial court recognized that Petitioner did have a foot injury at the time he entered his
plea and when he violated community control, but also found there was no evidence
that Petitioner was unable to report to his community control officer due to this injury.
Id. at 2-3.
The Fifth District Court of Appeal per curiam affirmed the trial court=s
rejection of this claim (App. J).
The Court finds that Petitioner=s claim is without merit. At the November 30,
2006, plea and sentencing, the trial court noted that Petitioner appeared to be Adisabled@
(App. EE).3
The trial court ordered Petitioner to report to his community control
officer the day after he was released from jail.
Id.; see also App. A at 86. An affidavit
of VCC was filed on December 13, 2006, in which Petitioner=s community control officer
alleged that Petitioner was released from jail on November 30, 2006, but failed to report
for his community control the following day (App. A at 102).
Instead, Petitioner
waited until December 6, 2006, to report for his community control.
Id.
A VCC hearing was held on March 7, 2007, at which community control officer
Anne Griffin (AGriffin@) testified that she was the on-duty officer at the Community
Control office on December 6, 2006, when Petitioner reported.
Id. at 6.
Griffin
testified that Petitioner did not give any reason as to why he had not appeared on
December 1, 2006, and merely stated that he was at home.
3 Petitioner
Id. On cross-examination,
suffered from a broken ankle which required surgical attention.
Petitioner was using crutches or a cane during the time period in which he entered his
plea and subsequently violated his community control (App. A at 9-12).
7
Griffin stated that Petitioner was walking with the assistance of a cane when he
appeared at her office.
Id. at 7.
Petitioner also testified at the VCC hearing, and at no point did he state that his
failure to report to his community control officer was due to a medical disability.
Id. at
8-11. Instead, Petitioner indicated that between November 2006 and December 6, 2006,
he suffered from a drug addiction.
Id. at 8. Petitioner told the trial court the following:
I got out on the 30th and I was already on Percocet from a broken ankle.
...
So my so called friend said I didn=t really need to report until Monday. I
could just wait and let the weekend pass. And then Monday turned into
Tuesday and Tuesday turned into Wednesday and I just said, I=m going to
hop up there on my crutches.
...
I mean just a continuous thing with drugs, you know, and I figured after I
-- I didn=t have no clean time to just stop doing drugs and do two years
probation, you know, I had these special provisions written up so I can
change probation and move up to North Carolina to be with the rest of
my family, but I wasn=t strong enough to just stop and do probation, any
kind of probation, you know, but that=s in hindsight . . . .
Id. at 8-9. Petitioner was given the opportunity to tell the trial court that he was
prevented from meeting with his community control officer as ordered due to a medical
disability. Instead Petitioner admitted that he did not appear because he was abusing
his prescription Percocet. Petitioner=s representations to the trial court constitute Aa
formidable barrier in any subsequent collateral proceedings. Solemn declarations in
open court carry a strong presumption of verity.@ Blackledge v. Allison, 432 U.S. 63, 73-74
8
(1977). Petitioner=s statements to the trial court carry a strong presumption of truth,
and Petitioner has not sufficiently demonstrated that this Court should overlook those
statements.
Although Petitioner was suffering from an ankle injury and used crutches to
walk at the time he was to report for community control, he has not shown that this
injury prevented him from reporting to his community control officer within one day of
being released from jail. As such, Petitioner cannot show that any deficiency on the
part of counsel resulted in prejudice because Petitioner has not demonstrated that but
for counsel=s failure to investigate, the result of the VCC hearing would have been
different.
The state court=s denial of this claim was neither contrary to, nor an
unreasonable application of, clearly established federal law. Accordingly, claim one is
denied pursuant to ' 2254(d).
B.
Claim Two
Petitioner alleges that trial counsel was ineffective for failing to object to false
and misleading testimony of the State's sole witness at the VCC hearing (Doc. No. 10 at
7). In support of this claim, Petitioner contends that Griffin=s testimony was in direct
contradiction to her written report and was misleading because it created the
impression that Petitioner was not physically disabled.
Id.
Petitioner raised this
claim in his first Rule 3.850 motion (App. F). The trial court denied the claim pursuant
to Strickland, finding that counsel=s failure to object to Griffin=s testimony did not result
in prejudice (App. G at 3-4). The Fifth District Court of Appeal affirmed per curiam
9
(App. J).
This Court agrees that Petitioner cannot demonstrate prejudice.
Griffin=s
AViolation Report@ provides that Petitioner appeared at the probation office on
December 6, 2006 (App. A at 99). The report also indicates that Petitioner told Griffin
that he did not report because did not have a ride to the office.
Petitioner also stated that he had no excuse for failing to call.
Id.
However,
Id. At the VCC hearing,
Griffin testified that Petitioner had no excuse for failing to report on December 1, 2006.
Id. at 6. Griffin also stated that she believed Petitioner was walking with a cane.
Id. at
7.
Contrary to Petitioner=s assertions, Griffin=s testimony was not in direct
contradiction with the Violation Report. Furthermore, although Petitioner states that
Griffin=s testimony gave the misleading impression that he was not physically disabled,
Griffin did testify that Petitioner used a cane, which leads to the conclusion that he had
some difficulty walking. Additionally, as discussed supra in relation to ground one,
the Court was aware of Petitioner=s ankle injury. However, there was no testimony
presented by Petitioner to substantiate his claim that his medical disability prevented
him from reporting to the community control office.
Moreover, although a conviction obtained through the knowing use of perjured
testimony is fundamentally unfair and a violation of due process, Petitioner has not
shown that Griffin committed perjury.
United States v. Bagley, 473 U.S. 667, 677 (1985);
Giglio v. United States, 405 U.S. 150 (1972). A petitioner can establish a violation by
10
showing that A(1) the prosecutor >knowingly used perjured testimony or failed to correct
what he subsequently learned was false testimony,= and (2) there is a reasonable
probability that the perjured testimony could have affected the judgment.@ United States
v. Elso, 364 F. App=x 595, 599 (11th Cir. 2010) (quoting Davis v. Terry, 465 F.3d 1249, 1253
(11th Cir. 2006)). A petitioner must show that (1) the statements were Aactually@ false,
(2) the statements were material, and (3) the prosecution knew they were false.
Id.
AThe use of testimony that is inconsistent with a witness=s prior testimony or that of a
codefendant does not suffice to show that the proffered testimony was false.@ Id.
(citing Hays v. Alabama, 85 F.3d 1492, 1499 (11th Cir. 1996) and United States v. Michael,
17 F.3d 1383 (11th Cir. 1994)).
Petitioner states that Griffin=s testimony that he walked using a cane was false
testimony because he used crutches after having extensive surgery to repair his broken
ankle (Doc. No. 24 at 6-7). Petitioner has not shown that Griffin=s testimony regarding
his use of a cane was false, nor has he demonstrated that the prosecutor knew that the
statement was false. Griffin stated she Abelieved@ that Petitioner was using a cane but
was not further questioned on whether Petitioner was instead using crutches. Griffin=s
testimony indicates that Petitioner was not freely walking but instead was walking with
the aid of some device.
Because Petitioner has not demonstrated that Griffin
committed perjury, trial counsel was not ineffective for failing to object to Griffin=s
testimony.
Petitioner has not demonstrated that the state court's determination was contrary
11
to, or involved an unreasonable application of, clearly established federal law.
Accordingly, claim two is denied pursuant to ' 2254(d).
C.
Claim Three
Petitioner alleges trial counsel was ineffective for failing to sever his unrelated
pending criminal charges prior to the VCC hearing (Doc. No. 1 at 8). Petitioner states
that had counsel moved to sever his unrelated charges of burglary and theft, they
would not have been considered during his VCC hearing.
Id. Petitioner raised this
claim in his first Rule 3.850 motion (App. F). The trial court summarily denied this
claim pursuant to Strickland without discussion (App. G). The Fifth District Court of
Appeal affirmed per curiam (App. J).
Florida Rule of Criminal Procedure 3.152(a)(1) provides that A[i]n case 2 or more
offenses are improperly charged in a single indictment or information, the defendant
shall have a right to a severance of the charges on timely motion.@
In the instant case,
Petitioner's unrelated burglary and theft charges were not charged in the same
indictment or information as he suggests but instead were charged in a separate case.
Therefore, counsel did not act deficiently by failing to move to sever the charges.
Moreover, there is no indication that the state court considered the unrelated burglary
and theft during the VCC hearing. At the beginning of the hearing, the trial court
asked whether Petitioner had two VCC cases (App. A at 3). The State informed the
trial judge that both the VCC case and the new burglary case were being handled
together because the State had extended a plea offer encompassing both cases, which
12
Petitioner had rejected.
Id. The trial court proceeded only on the VCC and did not
address the pending burglary and theft charges at the VCC hearing.
Id.
Petitioner has not demonstrated that trial counsel acted in a deficient manner or
that any deficiency resulted in prejudice because the trial court did not consider or
address Petitioner=s unrelated pending criminal charges during the VCC hearing. To
the extent Petitioner suggests that the mere mention of the unrelated burglary and theft
charges tainted the proceeding, Petitioner merely speculates that because the trial judge
was informed of this unrelated case, the outcome of the VCC hearing was prejudiced.
Vague, conclusory, speculative, or unsupported claims cannot support an ineffective
assistance of counsel claim.
Lowery v. Cummings, 255 F. App'x 409, 420-21 (11th Cir.
2007) (citing Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)). Petitioner has not
demonstrated that the state court=s determination of this claim was contrary to, or
resulted in an unreasonable application of, clearly established federal law. Accordingly,
claim three is denied pursuant to ' 2254(d).
D.
Claims Four, Five, Seven, and Eight
Petitioner claims trial counsel was ineffective for (1) failing to advise him of his
right to withdraw his guilty plea; (2) failing to request the transcription of the
November 30, 2006, plea and sentencing hearing that occurred before he violated his
community control; (3) failing to investigate whether he could properly be placed on
drug offender community control; and (4) failing to object to the discrepancy between
the orally pronounced sentenced and the written sentence.
13
Petitioner raised these claims in his third and fourth Rule 3.850 motions (App.
DD & EE). The trial court found that Petitioner=s Rule 3.850 motions were untimely
and successive (App. FF). The Fifth District Court of Appeal affirmed per curiam (App.
HH).
A per curiam affirmance of a trial court's finding of procedural default is a
sufficiently clear and express statement of reliance on an independent and adequate
state ground to bar consideration by the federal courts.
Ferguson v. Sec=y Dep=t of Corr.,
580 F.3d 1183, 1218 (11th Cir. 2009) (citing Harmon v. Barton, 894 F.2d 1268, 1273 (11th
Cir. 1990)). A[T]he clear inference to be drawn from the appellate court's per curiam
affirmance of the trial court's decision explicitly based on procedural default is that the
court accepted not only the judgment but the reasoning of the trial court.@
F.2d at 1273.
Harmon, 894
Therefore, claims four, five, six, seven, and eight are procedurally barred
and cannot be considered unless Petitioner demonstrates cause and prejudice resulting
from the default.
Wright v. Hopper, 169 F. 3d 695, 703 (11th Cir. 1999).
Procedural default will be excused only in two narrow circumstances. First, a
petitioner may obtain federal review of a procedurally defaulted claim if he can show
both Acause@ for the default and actual Aprejudice@ resulting from the default.
ATo
establish >cause= for procedural default, a petitioner must demonstrate that some
objective factor external to the defense impeded the effort to raise the claim properly in
the state court.@
Id. To establish Aprejudice,@ a petitioner must show that there is at
least a reasonable probability that the result of the proceeding would have been
14
different.
Henderson Campbell, 353 F.3d 880, 892 (11th Cir. 2003) (citations omitted).
The second exception, known as the Afundamental miscarriage of justice,@ only
occurs in an extraordinary case, where a Aconstitutional violation has probably resulted
in the conviction of one who is actually innocent.@
Murray v. Carrier, 477 U.S. 478, 496
(1986). Actual innocence means factual innocence, not legal insufficiency.
Bousley v.
United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must Ashow
that it is more likely than not that no reasonable juror would have convicted him@ of the
underlying offense, in light of the new evidence.
Schlup v. Delo, 513 U.S. 298, 327
(1995). In addition, A>[t]o be credible,= a claim of actual innocence must be based on
[new] reliable evidence not presented at trial.@
Calderon v. Thompson, 523 U.S. 538, 559
(1998) (quoting Schlup, 513 U.S. at 324), modified by Martinez v. Ryan, 132 S. Ct. 1309
(2012).
Petitioner appears to allege that he could not have raised these claims in one of
his earlier Rule 3.850 motions because he did not receive the transcript of his initial plea
and sentencing hearing until January 12, 2010.4
The documents attached to Petitioner=s
reply indicate that Petitioner attempted to obtain the transcript of the November 30,
2006 hearing for the first time on October 29, 2009 (Doc. No. 24, Exhibits H & I).
Petitioner=s first Rule 3.850 motion was filed on July 8, 2008 (App. F). Petitioner=s
4Petitioner=s
VCC hearing, held on March 7, 2007, was transcribed for direct
appeal but his initial plea and sentencing hearing, held on November 30, 2006, at which
he entered a guilty plea and was sentenced to a term of community control, was not
transcribed.
15
second Rule 3.850 motion was filed on May 13, 2009 (App. N). Petitioner has not
explained why he waited until both of those motions were denied by the state court
before he attempted to obtain a copy of the plea and sentencing transcript.
Petitioner
notes that appellate counsel failed to have the hearing transcribed for his direct appeal.
Therefore, Petitioner was aware, or should have been aware, that the hearing was not
transcribed as early as October 23, 2007, when Petitioner=s direct appeal was affirmed
(App. D). Petitioner gives no explanation as to why he waited more than two years to
request the transcription of this hearing. As such, the Court finds that this does not
constitute cause and prejudice for the procedural default.
However, the Supreme Court of the United States recently held, in Martinez, 132
S. Ct. at 1318-19, that a prisoner may establish cause for an ineffective assistance counsel
claim that was procedurally defaulted because it was not raised in an initial or first
post-conviction motion if: (1) the state court did not appoint counsel in the
initial-review collateral proceeding or (2) if counsel was appointed in the initial-review
proceeding but failed to raise the claim. It is arguable that Petitioner=s failure to raise
grounds four, five, seven, and eight was because the state court did not appoint counsel
in his first Rule 3.850 proceeding.
As such, the Court finds that Petitioner has
demonstrated cause for the procedural default of these claims pursuant to Martinez.
However, Petitioner must also show that the defaulted claims are substantial, or in
other words, that the claims have some merit.
Id. at 1319.
Turning to the merits of Petitioner=s claims, the Court concludes that he cannot
16
demonstrate that prejudice resulted from the procedural default of these claims because
they are not substantial.
1.
Claim Four
Petitioner argues that trial counsel was ineffective for failing to advise him of his
right to withdraw his guilty plea (Doc. No. 10 at 10). Petitioner asserts that pursuant
to Florida Rule of Criminal Procedure 3.170(l), he could have moved to withdraw his
plea within thirty days of being sentenced to drug offender community control, and
thus, counsel should have informed him of this right.
Id.
Rule 3.170(l) provides that A[a] defendant who pleads guilty or nolo contendere
without expressly reserving the right to appeal a legally dispositive issue may file a
motion to withdraw the plea within thirty days after rendition of the sentence, but only
upon
the
grounds
specified
9.140(b)(2)(A)(ii)(a)-(e) . . . .@
in
Florida
Rule
of
Appellate
Procedure
Florida Rule of Appellate Procedure 9.140 provides that a
defendant who pleads guilty or nolo contendere may appeal (1) the lower tribunal=s
lack of subject matter jurisdiction; (2) a violation of the plea agreement; (3) an
involuntary plea; (4) a sentencing error; or (5) as otherwise provided by law. Fla. R.
App. P. 91.40(b)(2)(A)(ii).
Petitioner does not allege what grounds he had for withdrawing his guilty plea
to the two counts of sale of cocaine. The Court notes that there is no indication that the
trial court lacked jurisdiction, the plea agreement was violated, the plea was
involuntarily entered, or that any sentencing error occurred. Therefore, there was no
17
basis upon with counsel could move to withdraw Petitioner=s plea.
In his fourth Rule 3.850 motion filed in the state court, Petitioner alleged that
counsel should have advised him that he could move to withdraw his plea based on the
illegality of his sentence (App. EE at 8). It appears that Petitioner is attempting to
challenge whether he could properly be sentenced to community control.
Section
948.10, Florida Statutes, provides that the Department of Corrections shall develop and
administer a community control program in the State of Florida. Furthermore, section
948.101(1) allows a trial court to determine the terms and conditions of community
control, which may include those standard conditions of probation as set forth in
section 948.03, Florida Statutes. Section 948.03 includes, among other provisions, that
a court may require a defendant to submit to random drug testing, that a defendant be
prohibited from using intoxicants, drugs, narcotics, or alcohol, or any other term the
court considers necessary. Additionally, section 948.101(2) provides that a trial court
may add additional terms to the community control sentence not listed in the statute,
such as a drug treatment program. Although the statutes do not specifically define
Adrug offender community control,@ there is no provision in the Florida statutes, nor has
Petitioner cited to any case law, that prevents the imposition of such a sentence. Thus,
it appears that Petitioner=s sentence of drug offender community control was legal.
Petitioner has not shown that trial counsel acted deficiently with regard to this
claim and any deficiency did not result in prejudice. Petitioner had no valid basis
upon which he could move to withdraw his plea. As such, claim four is without merit.
18
2.
Claim Five
Petitioner claims in ground five that trial counsel was ineffective for failing to
request the transcription of the November 30, 2006, plea and sentencing hearing(Doc.
No. 10 at 13). Petitioner maintains that because counsel did not have this hearing
transcribed, he was prevented from meaningful appellate review of his initial guilty
plea and sentence.
Id.
The Court finds that Petitioner=s claim is without merit. As noted supra, on
November 30, 2006, Petitioner entered a guilty plea and was sentenced to drug offender
community control. An affidavit of VCC was filed on December 13, 2006. A VCC
hearing was held on March 7, 2007, after which Petitioner appealed the court=s finding
that he violated community control and the imposition of two ten-year terms of
imprisonment. Petitioner=s initial entry of a guilty plea and sentence to community
control was not before the appellate court on direct appeal because Petitioner did not
appeal the plea and original sentence within thirty days. Fla. R. App. P. 9.140(b)(3).
Thus, counsel=s failure to have the November 30, 2006, plea and sentencing hearing
transcribed did not result in prejudice because any issues arising prior to the VCC were
not properly before the appellate court.
Furthermore, as stated above, Rule 9.140(b)(2)(A) allows a defendant to appeal
from a guilty plea only in certain circumstances, none of which were present in this
case. Petitioner did not reserve the right to appeal any dispositive issue, nor could he
properly challenge the trial court=s jurisdiction, the plea agreement, the voluntariness of
19
his plea, or a sentencing error. Accordingly, claim five is without merit.
3.
Claim Seven
Petitioner claims that trial counsel was ineffective for failing to investigate
whether he could properly be placed on drug offender community control (Doc. No. 10
at 17). As the Court noted supra, Petitioner was properly sentenced to drug offender
community control. Thus, counsel was not deficient for failing to investigate, and any
deficiency on the part of counsel did not result in prejudice because Petitioner=s
sentence was legal. Thus, claim seven provides no basis for relief.
4.
Claim Eight
In his eighth claim Petitioner alleges that trial counsel was ineffective for failing
to object to the discrepancy between the orally pronounced sentence and the sentence
provided for in the written plea agreement (Doc. No. 10 at 19). Petitioner=s claim is
refuted by the record. The written plea agreement states that Petitioner will enter a
guilty plea to two counts of sale of cocaine in exchange for concurrent two-year terms of
drug offender community control (App. A at 76). Petitioner admits that the trial court
orally pronounced a two-year sentence for drug offender community control (Doc. No.
10 at 19). See also Appendix EE at 14 (trial court sentences Petitioner to concurrent terms
of drug offender community control). Because there was no discrepancy between the
plea agreement and the orally pronounced sentenced, counsel had no basis to object
and accordingly, was not deficient.
As such, claim eight is without merit.
In conclusion, the Court finds that Petitioner is unable to show that prejudice will
20
result if the Court does not consider the defaulted claims. Therefore, the Court is
barred from reviewing claims four, five, seven, and eight.
E.
Claim Six
Petitioner claims that trial counsel was ineffective for failing to object when the
prosecutor acted as a witness at the VCC hearing and made prejudicial statements
which were not supported by the evidence (Doc. No. 10 at 15). In support of this
claim, Petitioner argues that the prosecutor made several disparaging and prejudicial
comments regarding his drug use and medical disability.
Id. Petitioner raised this
claim in his first Rule 3.850 motion (App. F), and the trial court denied the claim
pursuant to Strickland, finding the prosecutor=s comments amounted to Afair comment
on the evidence . . . .@ (App. G at 4). The Fifth District Court of Appeal affirmed per
curiam (App. J).
Petitioner does not specifically cite to the alleged disparaging and prejudicial
remarks made by the prosecutor during the VCC hearing. However, in his first Rule
3.850 motion for post-conviction relief, Petitioner cites to the following comments:
Mr. Doyle [prosecutor]: Judge, Mr. Hinton=s own testimony was that he=s
a drug addict. He got out and he got -- he didn=t say it, but he got on
drugs. One day led to another and one day led to another and I guess I=ll
get there when I want to. Not when the Judge told me to, but when I
want to. Judge, he was violated immediately. We can=t have someone
supervised under these circumstances. By his own testimony it=s a
clear-cut violation. He can=t go when he wants to. He goes when the
Court tells him to. And if he -- six days later, it=s six days late, you know,
I guess I=ll go. It=s a clear-cut violation.
All this other stuff about his medical condition, I see a guy with a
foot apparatus and a cane and apparently that=s the same situation that got
21
him there eventually six days later. He should have gone the very first
day as the Court ordered him to. I don=t think he wants to be supervised
in the community. I think it=s a clear-cut violation.
(App. A at 12-13).
The prosecutor=s statements constituted fair comments on the evidence
presented. As noted supra, Petitioner admitted to the trial court that he had a drug
problem and had no reason for failing to report for his community control other than
the fact that he was taking drugs and listening to the poor advice given by his Aso-called
friend.@
Although Petitioner did suffer from a medical condition or injury, at no point
did Petitioner allege that his medical condition prevented him from reporting to his
community control officer. Because the prosecutor=s comments were based on the
testimony presented at the VCC hearing, counsel will not be deemed ineffective for
failing to object.
See Buzia v. State, 82 So. 3d 784, 796 (Fla. 2011) (citing Spann v. State,
985 So. 2d 1059, 1068 (Fla. 2008) (noting in Florida that when a prosecutor makes a fair
comment on the evidence counsel cannot be deemed ineffective for failing to object)).
The state court=s denial of this claim is not contrary to, or an unreasonable
application of, clearly established federal law. As such, claim six is denied pursuant to
' 2254(d).
F.
Claim Nine
Petitioner asserts that his Fifth and Fourteenth Amendment rights were violated
when the appellate court did not have a complete record on appeal (Doc. No. 10 at 21).
Petitioner raised this claim in his fourth Rule 3.850 motion (App. EE). The trial court
22
found that the motion was untimely and successive and declined to address the merits
of the claim (App. FF). The Fifth District Court of Appeal affirmed per curiam (App.
HH).
Although it appears that the instant claim was procedurally defaulted in the state
court, Respondents did not argue that this Court is procedurally barred from
addressing the merits of the claim (Doc. No. 14 at 10-11).5
that this claim only raises a state law issue.
of the claim.
Instead, Respondents argue
Id. Respondents also address the merits
Id. at 12-14. This Court declines to sua sponte invoke the procedural bar.
See Esslinger v. Davis, 44 F.3d 1515, 1524 (11th Cir. 1995) (a Adistrict court may invoke
the [procedural default] bar sua sponte [only] where . . . requiring the petitioner to return
to state court to exhaust his claims serves an important federal interest@); Moreno v.
Sec=y, Dep=t of Corr., No. 2:09-cv-336-FtM-29DNF, 2012 WL 2282552, at *5 (M.D. Fla. Jun.
18, 2012) (declining to sua sponte find claims procedurally defaulted).
Turning to the merits of Petitioner=s claim, the Court concludes that his due
process rights were not violated. As this Court noted supra, Petitioner=s guilty plea
and sentence were not properly before the appellate court because Petitioner did not
appeal within thirty days. As such, Petitioner cannot prevail on his claim that the
incomplete transcript resulted in actual prejudice.
See Songer v. Wainwright, 733 F.2d
788, 792 (11th Cir.) (holding that the Alack of transcript@ of the charge conference in a
5Respondents
argued grounds four through eight are procedurally barred and
ground ten is unexhausted (Doc. No. 14).
23
death penalty case did not warrant issuance of a writ where petitioner Afailed to
demonstrate that the lack of a transcript@ precluded review or that he was Aactually
prejudiced by the absence of the transcript@), vacated, 758 F.2d 552 (11th Cir. 1984),
reinstated, 769 F.2d 1497 (11th Cir. 1985).
Furthermore, Petitioner did not reserve the right to appeal any dispositive issue,
nor could he properly challenge the lower court=s subject matter jurisdiction, a violation
of the plea agreement, the voluntariness of his plea, or a sentencing error pursuant to
Rule 9.140 (b)(2)(A).
Because Petitioner has not demonstrated that the incomplete
record on direct appeal resulted in a violation of due process, the instant claim is
denied.
J.
Claim Ten
Petitioner claims that trial counsel was ineffective for advising him to accept an
illegal sentence (Doc. No. 10 at 23). In support of this claim, Petitioner maintains that
two years of drug offender community control was not an authorized sentence
pursuant to section 948.10(2) of the Florida Statutes.
Id. Although Respondents argue
that this claim was unexhausted because it was not raised in the state court, the Court
notes that Petitioner raised the instant claim in his fourth Rule 3.850 motion (App. EE at
13).
The trial court found that the fourth Rule 3.850 motion was untimely and
successive (App. FF). The Fifth District Court of Appeal affirmed per curiam (App.
HH).
Respondents also argue that this claim is procedurally barred.
24
The Court
agrees. As noted supra, a per curiam affirmance of a trial court=s finding of procedural
default is a sufficiently clear statement of reliance on an independent and adequate state
ground to bar consideration by the federal courts. Ferguson, 580 F.3d at 1218. Thus, the
instant claim is procedurally barred and cannot be considered unless Petitioner
demonstrates cause and prejudice resulting from the default. Wright, 169 F.3d at 703.
To the extent that Petitioner=s failure to raise this ground was because the state
court did not appoint counsel in his first Rule 3.850 proceeding, Petitioner has
demonstrated cause for the procedural default of this claim.
1318-19.
Martinez, 132 S. Ct. at
However, Petitioner cannot demonstrate prejudice resulting from the
procedural default because he has not shown that this claim is substantial or has some
merit.
Id. This Court found, supra, that Petitioner=s initial sentence of two years of
drug offender community control was an authorized or legal sentence.
As such,
counsel had no basis to advise Petitioner that he should not accept the plea.
Accordingly, the Court is barred from reviewing this claim.
Any of Petitioner=s allegations not specifically addressed herein have been found
to be without merit.
IV.
Certificate of Appealability
A prisoner seeking to appeal a district court's final order denying his petition for
writ of habeas corpus has no absolute entitlement to appeal but must obtain a certificate
of appealability (ACOA@). 28 U.S.C. ' 2253(c)(1); Harbison v. Bell, 556 U.S. 180 (2009).
AA [COA] may issue . . . only if the applicant has made a substantial showing of the
25
denial of a constitutional right.@
28 U.S.C. ' 2253(c)(2). To make such a showing,
petitioner Amust 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) or, that Athe issues presented were adequate to deserve encouragement
to proceed further.@
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Petitioner has
not made the requisite showing in these circumstances. The Court will deny Petitioner a
certificate of appealability.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
The Amended Petition for Writ of Habeas Corpus filed by Michael D.
Hinton (Doc. No. 10) is DENIED, and this case is DISMISSED WITH PREJUDICE.
The Clerk of the Court shall enter judgment accordingly.
2.
Petitioner is DENIED a Certificate of Appealability.
3.
The Clerk of the Court is directed to close this case.
DONE AND ORDERED in Orlando, Florida, this 31st day of July, 2012.
Copies to:
OrlP-3 7/31
Counsel of Record
Michael D. Hinton
26
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