Schneider v. Secretary, Department of Corrections et al

Filing 22

ORDER denying 1 Petition for writ of habeas corpus filed by Joseph Michael Schneider and this case is DISMISSED WITH PREJUDICE.Petitioner is DENIED a Certificate of Appealability. The Clerk of the Court is directed to enter judgment accordingly and close this case. Signed by Judge Gregory A. Presnell on 2/23/2015. (TKW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOSEPH MICHAEL SCHNEIDER,
Petitioner,
v.

CASE NO. 6:13-cv-746-Orl-31GJK

SECRETARY, FLORIDA 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.)

Respondents filed a response to the petition for writ of habeas corpus in

compliance with this Court’s instructions (Doc. No. 9).

Petitioner was provided an

opportunity to file a reply to the response but did not do so.
Petitioner alleges two grounds for relief.

For the following reasons, the petition

is denied.
I.

Procedural Background
Petitioner was charged in case number 2007-cf-65522 with trafficking in 28 grams

or more of cocaine (count one) and sale of cocaine (count two).

Pursuant to a plea

agreement, Petitioner entered a plea of guilty to the lesser-included offense of possession
of cocaine as to count one and guilty to count two. In addition, as contemplated by the
plea agreement, Petitioner entered a plea of no contest to the lesser-included offenses of
burglary of a structure and battery and to criminal mischief in case number 2007-cf-48704.

The plea agreement provided a maximum concurrent sentence of ten years for the sale of
cocaine conviction and five years for the burglary conviction.

In accordance with the

plea agreement, the trial court sentenced Petitioner to a ten-year term of imprisonment
for the sale of cocaine conviction, to five-year terms of imprisonment for the possession
of cocaine and burglary convictions, and to time served for the battery and criminal
mischief convictions with all sentences to run concurrently.

Petitioner did not appeal.

Petitioner filed a motion to corrct an illegal sentence pursuant to Rule 3.800(a) of
the Florida Rules of Criminal Procedure.

The trial court denied the motion.

Petitioner

did not appeal.
Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the
Florida Rules of Criminal Procedure.

The state court denied the motion.

Petitioner

appealed, and the Fifth District Court of Appeal affirmed per curiam.
Petitioner filed a second Rule 3.850 motion. The state court denied the motion as
successive.

Petitioner appealed, and the Fifth District Court of Appeal affirmed per

curiam.
Petitioner filed a petition for belated direct appeal, which was granted.

The Fifth

District Court of Appeal subsequently affirmed Petitioner’s convictions and sentences per
curiam.
Petitioner filed a state petition for writ of habeas corpus, alleging ineffective
assistance of appellate counsel. The Fifth District Court of Appeal of Florida denied the
petition.
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II.

Analysis
In claim one, Petitioner asserts that the trial court denied his “counsel the

opportunity to object to the introduction of impermissible testimony in the form of victim
impact evidence.”

(Doc. No. 1 at 6.)

In claim two, Petitioner contends that the trial

court violated his constitutional right to due process by allowing the State to introduce
victim impact evidence.

Id. at 9.

Petitioner arguably raised these claims in his pro se initial brief on direct appeal.
(App. 21.)

However, the Fifth District Court of Appeal of Florida struck Petitioner’s pro

se brief. (App. 23.) To the extent claim one alleges a claim of ineffective assistance of
counsel for failing to object to the victim impact testimony, this claim was raised in
Petitioner’s second Rule 3.850 motion. (App. 11.) Nevertheless, the state court denied
the motion as successive and an abuse of process under Florida law.

(App. 12.)

One procedural requirement set forth in the AEDPA precludes federal courts,
absent exceptional circumstances, from granting habeas relief unless the petitioner has
exhausted all means of available relief under state law.

28 U.S.C. ' 2254(b); O=Sullivan

v. Boerckel, 526 U.S. 838, 842-43 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971).
Specifically, the AEDPA provides, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it
appears thatB
(A)

the applicant has exhausted the remedies available in the
courts of the State; or
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(B)

(i)

there is an absence of available State corrective process;
or

(ii)

circumstances exist that render such process
ineffective to protect the rights of the applicant.

28 U.S.C. ' 2254(b)(1). Thus, a federal court must dismiss those claims or portions of
claims that have been denied on adequate and independent procedural grounds under
state law. Coleman v. Thompson, 501 U.S. 722, 750 (1991), holding modified by Martinez v.
Ryan, 132 S. Ct. 1309 (2012).
Procedural default will be excused in two narrow circumstances.

First, a

petitioner may obtain federal review of a procedurally defaulted claim if he can show
both “cause” for the default and actual “prejudice” resulting from the default.

“To

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.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). Finally, to show
“prejudice” so as to warrant review of a procedurally defaulted claim, a petitioner must
show that there is at least a reasonable probability that the result of the proceeding would
have been different.

Henderson, 353 F.3d at 892 (citations omitted).

The second exception, known as the “fundamental miscarriage of justice,” only
occurs in an extraordinary case, in which a “constitutional violation has probably resulted
in the conviction of one who is actually innocent.”
(1986).

Murray v. Carrier, 477 U.S. 478, 496

Actual innocence means factual innocence, not legal insufficiency. Bousley v.

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United States, 523 U.S. 614, 623 (1998).

To meet this standard, a petitioner must “show

that it is more likely than not that no reasonable juror would have convicted him” of the
underlying offense.

Schlup v. Delo, 513 U.S. 298, 327 (1995).

In addition, “’[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).
The state courts either struck Petitioner’s claims or found them to be procedurally
barred from review. Thus, these claims are procedurally defaulted.

Petitioner has not

established either cause or prejudice or actual innocence to overcome the procedural
default of these claims. Consequently, Petitioner’s claims are procedurally barred from
review by this Court.
Alternatively, Petitioner has not demonstrated that either of his claims warrant
habeas relief.

“Victim impact evidence is simply another form or method of informing

the sentencing authority about the specific harm caused by the crime in question,
evidence of a general type long considered by sentencing authorities.”

Payne v.

Tennessee, 501 U.S. 808, 824-25 (1991). Petitioner has not shown that the admission of the
victim impact testimony “‘so infused the trial with unfairness as to deny due process of
law.’”

Colon v. Burnett, 317 F. App’x 922, 924 (11th Cir. 2009) (quoting Felker v. Turpin,

83 F.3d 1303, 1311-12 (11th Cir. 1996)).
accordance with the plea agreement.

The state court sentenced Petitioner in

Additionally, Petitioner has not shown that a

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reasonable probability exists that he would not have entered the plea or received the same
sentence had counsel objected to the victim impact testimony.

See Hill v. Lockhart, 474

U.S. 52, 59 (1985) (To satisfy the prejudice requirement in claims arising from the entry of
a guilty plea, “the defendant must show that there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.”).

Accordingly, claims one and two are procedurally barred from review or are

otherwise without merit.
Any of Petitioner’s allegations not specifically addressed herein have been found
to be without merit.
IV.

Certificate of Appealability
This Court should grant an application for certificate of appealability only if the

Petitioner makes “a substantial showing of the denial of a constitutional right.”
U.S.C. ' 2253(c)(2).

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To make such a showing “the petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec’y,
Dep’t of Corr., 568 F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal
habeas petition on procedural grounds without reaching the underlying constitutional
claim, a certificate of appealability should issue only when a petitioner shows “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

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district court was correct in its procedural ruling.” Id.; Lamarca, 568 F.3d at 934.
However, a prisoner need not show that the appeal will succeed.

Miller-El v. Cockrell,

537 U.S. 322, 337 (2003).
Petitioner has not demonstrated that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.

Moreover,

Petitioner cannot show that jurists of reason would find this Court’s procedural rulings
debatable.

Petitioner has failed to make a substantial showing of the denial of a

constitutional right.

Thus, the Court will deny Petitioner a certificate of appealability.

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1.

The Petition for Writ of Habeas Corpus (Doc. No. 1) filed by Joseph Michael

Schneider is DENIED, and this case is DISMISSED WITH PREJUDICE.
2.

Petitioner is DENIED a Certificate of Appealability.

3.

The Clerk of the Court is directed to enter judgment accordingly and close

this case.
DONE AND ORDERED in Orlando, Florida, this 23rd day of February, 2015.

Copies to:
Joseph Michael Schneider
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Counsel of Record

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