Riley v. Secretary, Department of Corrections et al
Filing
11
OPINION AND ORDER. The Petition for Writ of Habeas Corpus filed by Joseph T. Riley 1 is DENIED, and this case is DISMISSED WITH PREJUDICE. The Clerk is directed to enter judgment accordingly. Petitioner is DENIED a Certificate of Appealability. The Clerk is directed to CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 8/27/2013. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOSEPH T. RILEY,
Petitioner,
v.
CASE NO. 6:12-cv-828-Orl-36TBS
SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. §
2254 (Doc. No. 1). Upon consideration of the petition, 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 petition in compliance with this Court’s instructions
and with the Rules Governing Section 2254 Cases for the United States District Courts (Doc.
No. 8).
Petitioner filed a memorandum of law in lieu of filing a reply to the response
(Doc. No. 10).
Petitioner alleges one claim for relief in his habeas petition, challenging the
constitutionality of section 893.135, Florida Statutes, based on the reasoning in Shelton v.
Sec’y, Dep’t of Corr., 802 F. Supp. 2d 1289 (M.D. Fla. 2011).1
1In
For the following reasons,
Shelton, the district court determined that due to an amendment of the statute
in 2002, which eliminated the mens rea as an element of the statute, section 893.13,
Florida Statutes, was facially unconstitutional. 802 F. Supp. 2d at 1302-06.
the petition for writ of habeas corpus is denied.
I.
Procedural History
According to the petition, Petitioner was convicted of trafficking in cocaine on
August 18, 2011 (Doc. No. 1 at 1).2
term of imprisonment. Id.
affirmed per curiam.
The trial court sentenced Petitioner to a three-year
Petitioner appealed, and the Fifth District Court of Appeal
Petitioner subsequently filed a motion for post-conviction relief
pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, arguing that
pursuant to Shelton, section 893.13 is unconstitutional and his conviction must be
reversed. Id. at 6.
II.
The Fifth District Court of Appeal affirmed per curiam.
Id.
Analysis
To obtain relief under 28 U.S.C. ' 2254, Petitioner must show “that the state court
decision adjudicating his claims . . . . was contrary to or involved an unreasonable
application of, clearly established Supreme Court precedent . . . .” Philmore v. McNeil,
575 F.3d 1251, 1255 (11th Cir. 2009); 28 U.S.C. ' 2254(d).
Petitioner claims that the trial court erred when it convicted and sentenced him
pursuant to section 893.135, Florida Statutes, because that statute is unconstitutional
similar to section 893.13, Florida Statutes.
Petitioner relies on the district court’s
decision in Shelton as the basis for his challenge.
Petitioner’s challenge to the legality
of his conviction and sentence is foreclosed by the Eleventh Circuit Court of Appeals’
2An
appendix has not been filed in this action; however, the petition may be
resolved without an appendix. The facts set forth in this Order are derived from the
petition and documents attached to the petition.
2
opinion in Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir. 2012), in which the
appellate court reversed the district court’s decision.
Therefore, Petitioner is not
entitled to relief on his claim. See Collins v. Sec’y, Dep’t of Corr., 507 F. App=x 915, 916
(11th Cir. 2013) (affirming the dismissal of a habeas petition based on the Eleventh
Circuit’s decision in Shelton); Johnson v. Sec’y, Dep’t of Corr., No. 6:12-cv-572-Orl-19DAB,
2012 WL 6522750, at *1 (M.D. Fla. Dec. 14, 2012) (holding the petitioner’s claim was
foreclosed by the Eleventh Circuit’s decision in Shelton); State v. Adkins, 96 So. 3d 412
(Fla. 2012) (upholding the constitutionality of section 893.13, Florida Statutes).
Petitioner does not cite to any Supreme Court precedent which has held that
section 893.135, Florida Statutes, is unconstitutional. Consequently, Petitioner cannot
demonstrate that the state court’s denial of his claim was contrary to, or resulted in an
unreasonable application of, clearly established federal law. Accordingly, Petitioner’s
claim is denied pursuant to ' 2254(d).
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 (“COA”).
28 U.S.C. ' 2253(c)(1); Harbison v. Bell, 556 U.S. 180 (2009).
“A [COA] may issue . . . only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. ' 2253(c)(2).
3
To make such a showing,
petitioner “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282 (2004) or, that “the 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 Petition for Writ of Habeas Corpus filed by Joseph T. Riley (Doc. No.
1) 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 27th day of August, 2013.
Copies to:
OrlP-3 8/27
Counsel of Record
Joseph T. Riley
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