Boles v. Secretary, Department of Corrections et al
Filing
21
OPINION AND ORDER. Petitioner's Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED. The Clerk is directed to enter judgment against Petitioner and close this case. It is further ordered that Petitioner IS NOT entitled to a certificate of appealability and IS NOT entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 8/26/2014. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROY GENE BOLES,
Petitioner,
v.
Case No.: 8:11-cv-2736-T-36EAJ
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
________________________________/
ORDER
Petitioner, a state of Florida inmate proceeding pro se, initiated this action by filing a petition
for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1). Petitioner challenges his convictions for
armed burglary of a conveyance with assault or battery, false imprisonment, and possession of
cannabis, entered in 2007 in the Thirteenth Judicial Circuit, Hillsborough County, Florida. Upon
review, the petition must be denied.
PROCEDURAL HISTORY
The State of Florida charged Petitioner with armed burglary of a conveyance with assault
or battery (count one), false imprisonment (count two), battery (count three), and possession of
cannabis (count four). A jury convicted Petitioner of counts one and two but found him not guilty
of count three. Petitioner entered a plea of guilty to count four. Petitioner was sentenced to life
imprisonment on count one, five years’ imprisonment on count two, and 364 days’ imprisonment
on count four.
Petitioner’s convictions and sentences were per curiam affirmed by the Second District
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Court of Appeal on October 26, 2007. Boles v. State, 967 So.2d 913 (Fla. 2d DCA 2007) (table).
Petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850,
as well as several amendments to his motion. After conducting an evidentiary hearing on numerous
claims, the state court entered its final order denying Petitioner’s Rule 3.850 motion on May 20,
2011. (Dkt. 13, Ex. 17.) Petitioner did not appeal the order of denial.
While his Rule 3.850 motion was pending, Petitioner filed two petitions for writ of habeas
corpus in the Second District Court of Appeal. (Dkt. 13, Exs. 10, 18.) That court denied his
petitions. (Dkt. 13, Exs. 11, 19.) Petitioner filed his federal habeas petition when he provided it to
prison officials for mailing on December 9, 2011. Respondent filed its response (Dkt. 12) on May
1, 2012, and Petitioner filed his reply (Dkt. 15) on May 24, 2012.1
Although not addressed in the parties’ pleadings, this habeas petition appears to be timely
under the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). That section provides
a one-year statute of limitations for filing a habeas petition seeking relief from a state court judgment
under 28 U.S.C. § 2254. This one-year period “shall run from the latest of ... the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for seeking
such review....” 28 U.S.C. 2244(d)(1)(A). The statute of limitations is tolled for “[t]he time during
which a properly filed application for State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending ....” 28 U.S.C. 2244(d)(2).
Petitioner’s convictions were affirmed on appeal on October 26, 2007. His convictions
therefore became final on January 24, 2008, at the conclusion of the ninety-day period to petition
1
Petitioner filed a notice of inquiry (Dkt. 20) in which he sought information regarding the effect of this
case’s recent reassignment (see Dkt. 19). The reassignment of his case has no effect on the procedures involved in
this action or Petitioner’s obligations and responsibilities.
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the United States Supreme Court for a writ of certiorari. See Bond v. Moore, 309 F.3d 770 (11th Cir.
2002); Sup. Ct. R. 13.3. Fifty-three days of un-tolled time passed until Petitioner’s first Rule 3.850
motion was filed when he provided it to prison officials for mailing on March 17, 2008. His
postconviction motion remained pending until the state court’s final order denying his Rule 3.850
motion was filed on May 20, 2011. Under state procedural rules, Petitioner had thirty days to appeal
the order of denial. See Fla. R. App. R. 9.110(b); 9.141(b)(1); Fla. R. Crim. P. 3.850(k). He did not
do so. The federal habeas clock therefore began to run again on June 20, 2011. Another 173 days
of un-tolled time passed until Petitioner filed his habeas petition on December 9, 2011, for a total
of 226 days of un-tolled time.
STANDARD OF REVIEW
AEDPA
This petition is subject to the provisions of the Antiterrorism and Effective Death Penalty
Act (“AEDPA”) effective April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).
Habeas relief can only be granted if a petitioner is in custody “in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) sets forth a highly
deferential standard for federal court review of a state court’s findings of law and fact. It provides
that habeas relief may not be granted on a claim adjudicated on the merits in state court unless such
determination:
(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)(1)-(2).
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The Supreme Court has explained the deferential review of a state court’s findings:
Under the “contrary to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by this Court on a question of
law or if the state court decides a case differently than this 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 this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court’s factual findings must also be given
deference. Specifically, a state court’s determinations of fact “shall be presumed to be correct,” and
the habeas petitioner “shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1); Henderson v. Campbell, 353 F.3d 880, 890-91 (11th
Cir. 2003).
Exhaustion and Procedural Default
In order to pursue federal habeas relief, a state prisoner must exhaust every available state
court remedy for challenging his conviction. 28 U.S.C. § 2254(b)(1). “[T]he state prisoner must
give the state courts an opportunity to act on his claims before he presents those claims to a federal
court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A federal habeas
petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State
... if he has the right under the law of the State to raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c); Pruitt v. Jones, 348 F.3d 1355, 1358 (11th Cir. 2003).
To exhaust state remedies, a petitioner must make the state court aware of both the legal and
factual bases for his claim. A petitioner must “fairly present” his federal claim in state court.
Duncan v. Henry, 513 U.S. 364, 365 (1995). “To present a federal constitutional claim properly in
state court, ‘the petitioner must make the state court aware that the claims asserted present federal
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constitutional issues.’” Zeigler v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003) (quoting Snowden
v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)).
“[T]he prohibition against raising nonexhausted claims in federal court extends not only to
broad legal theories of relief, but also to the specific assertions of fact that might support relief.”
Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004). Exhaustion therefore
requires that the petitioner present the state court with the particular legal basis for relief, as well as
the facts supporting the claim. See Snowden, 135 F.3d at 735.
The doctrine of procedural default provides that “[i]f the petitioner has failed to exhaust state
remedies that are no longer available, that failure is a procedural default which will bar federal
habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice
exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). See also
O’Sullivan, 526 U.S. at 848; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999).
DISCUSSION
Ground One: “Petitioner was unjustly denied redress/answers to the issues and merits of his
amended claim; he was required to resubmit his first petition being dismissed without
prejudice.”
Petitioner argues that the state court erred when it did not rule on the merits of his amended
postconviction claims. He asserts that this violated his due process and equal protection rights. The
record reflects that, after filing his initial Rule 3.850 motion, Petitioner also filed a motion to amend,
as well as an amended Rule 3.850 motion, on October 16, 2008. (Dkt. 13, Ex. 9.) Petitioner next
filed a Supplementation of Amended Motion for Post Conviction Relief on December 28, 2009.
(Dkt. 13, Ex. 12.)
In an order filed August 6, 2010, the state court granted Petitioner’s motion for leave to
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amend and considered his amended Rule 3.850 motion along with his initial Rule 3.850 motion. The
court granted an evidentiary hearing on four of Petitioner’s claims, and reviewed and denied his
remaining four claims. (See Dkt. 13, Ex. 13.)
In the same order, the court denied the claims raised in Petitioner’s December 28, 2009
Supplementation of Amended Motion for Postconviction Relief as untimely in accordance with state
law. Specifically, the court noted that, under Florida law, “a defendant is not permitted to amend
his or her motion for post-conviction relief after expiration of the two-year limitations period, where
the amendment seeks to add new grounds rather than cure a deficiency. See Richardson v. State,
890 So. 2d 1197 (Fla. 5th DCA 2005).” (Dkt. 13, Ex. 13, p. 14.) The court found that because
Petitioner’s supplemental pleading contained only new claims and was filed after the two-year
period to timely file a motion for postconviction relief under Rule 3.850 had expired, the claims
were untimely. 2 (Dkt. 13, Ex. 13, pp. 14-15.) The court also specifically found that the claims did
not fall under any of the exceptions to the time limitation set forth in Rule 3.850. (Dkt. 13, Ex. 13,
p. 15.)
In Ground One of his habeas petition, Petitioner appears to reference both his amended
postconviction motion, as well as his Supplementation of Amended Motion for Postconviction
Relief. Based on the state court’s consideration of the claims raised in Petitioner’s amended Rule
3.850 motion, however, it appears that Ground One concerns the arguments raised in his
Supplementation of Amended Motion for Postconviction Relief, which the state court did not review
2
A motion filed under Florida Rule of Criminal Procedure 3.850 must be filed within two years of the date
the judgment and sentence become final. Under Florida law, the judgment and sentence are deemed final for
purposes of timeliness under Rule 3.850 when the mandate issues following an affirmance on direct appeal. See
Anton v. State, 976 So.2d 6, 8 (Fla. 2d DCA 2008). Here, the mandate on direct appeal was issued on November 19,
2007. (Dkt. 13, Ex. 6.) Petitioner’s Supplementation of Amended Motion for Postconviction Relief was deemed
filed when he provided it to prison officials for mailing on December 28, 2009. (Dkt. 13, Ex. 12, p. 21.)
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on the merits.3
In denying the postconviction claims as untimely, the state court relied on Florida law
providing that a Rule 3.850 motion cannot be supplemented with new claims after the two-year
period to file a motion under that rule has expired. Thus, the state court’s disposition of the
postconviction claims upon an independent and adequate state procedural ground renders the
argument presented in Ground One procedurally defaulted. See Coleman v. Thompson, 501 U.S.
722, 750 (1991) (“In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review of the claims
is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.”). Petitioner does not argue or demonstrate that either the
cause and prejudice or fundamental miscarriage of justice exception would apply to excuse his
procedural default.4 Consequently, Petitioner is not entitled to relief on Ground One.
Ground Two: “First time on appeal, court violated Petitioner’s constitutional writs [sic] by its
sentencing of Petitioner for unfounded aggravators for enhancement that was not found by
jury nor specified by verdict form.”
Petitioner argues that the state court violated his constitutional rights when it erroneously
enhanced his sentence for count one based upon “unfounded aggravators.” He further asserts that
this subjected him to double jeopardy. Petitioner was found not guilty of count three, battery. He
3
Petitioner appears to support his argument with the position that he was required to resubmit his first
motion after it was denied without prejudice. The record does not contain any state court order to this effect. The
first state court order in response to any of Petitioner’s postconviction filings was the August 6, 2010 order, which
considered the claims brought in his initial and amended Rule 3.850 motions.
4
Furthermore, any of Petitioner’s claims raised in his Rule 3.850 motion would also be procedurally
defaulted because, by not appealing the order denying that motion, Petitioner failed to invoke one complete round of
the established appellate review process in the state courts. See O’Sullivan, 526 U.S. at 845.
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was found guilty of count one, armed burglary of a conveyance with assault or battery. Petitioner
argues that because he was found not guilty of battery as to count three, he could not have been
found guilty of having committed a battery as to count one. He appears to assert that the battery
charged as part of count one was an aggravating factor for purposes of sentencing on that count.5
However, the claim that the trial court unconstitutionally enhanced Petitioner’s sentence is
unexhausted because it was not raised in state court proceedings. Claims asserting trial court error
are properly raised on direct appeal. See Henry v. State, 933 So.2d 28, 29 (Fla. 2d DCA 2006).
Petitioner did not bring this argument on direct appeal. (Dkt. 13, Ex. 2.) Because the claim has not
been raised in state court, it is unexhausted. State procedural rules do not provide for a second direct
appeal. See Fla. R. App. P. 9.110; 9.140. Accordingly, this claim is procedurally defaulted.
Petitioner claims that he asked appellate counsel to raise this matter on direct appeal, but that
appellate counsel informed him that the issue had not been preserved for appellate review. To the
extent that this assertion can be construed as an argument that the cause and prejudice exception
applies to allow a review of this claim, Petitioner is not entitled to relief. To show cause for a
procedural default, a petitioner “must demonstrate that some objective factor external to the defense
impeded the effort to raise the claim properly in state court.” Wright v. Hopper, 169 F.3d 695, 703
(11th Cir. 1999.) See also Murray v. Carrier, 477 U.S. 478, 488 (1986). To show prejudice, a
petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice
but that they worked to his actual and substantial disadvantage and infected the entire trial with
errors of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982).
5
Section 810.02(2)(a), Fla. Stat. (2005), provides that burglary is punishable by a term of years not
exceeding life imprisonment if, in the course of committing burglary, an individual “makes an assault or battery
upon any person.”
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First, to the extent that Petitioner’s allegation that this claim was not preserved for appeal
suggests an allegation of ineffective assistance of trial counsel, Petitioner has not shown cause and
prejudice for the default. While ineffective assistance of counsel may constitute cause for a default,
under the exhaustion doctrine, the ineffective assistance of counsel claim must be “presented to the
state courts as an independent claim before it may be used to establish cause for a procedural
default.” Murray, 477 U.S. at 489. Petitioner asserts that he was aware of this potential claim. But
Petitioner did not assert that counsel was ineffective in regard to an allegedly enhanced sentence
imposed on count one in his Rule 3.850 motion. (Dkt. 13, Exs. 6, 7, 9, 12.) Similarly, Petitioner
cannot show cause and prejudice for the default to the extent his claim can be construed to assert
ineffective assistance of appellate counsel for failing to raise this matter on direct appeal. Petitioner
did not present any argument regarding an enhanced sentence in his state habeas petition that alleged
ineffective assistance of appellate counsel. (Dkt. 13, Ex. 10.) Accordingly, any ineffective
assistance of counsel claims are themselves procedurally defaulted. Furthermore, Petitioner has not
presented any evidence of ineffective assistance of trial or appellate counsel.6
Accordingly, Petitioner has not shown that the cause and prejudice exception applies here
to allow review of his procedurally defaulted claim. He is therefore not entitled to relief on Ground
Two.
Ground Three:7
Petitioner asserts that his conviction for possession of cannabis is void because the statute
6
Petitioner has not demonstrated that he would be entitled to relief on the merits. The victims of counts one
and three were different individuals. (Dkt. 13, Ex. 20, Vol. I, Superseding Information.) Therefore, the fact that the
jury acquitted Petitioner of battery on count three would not have prevented the jury from finding that Petitioner
committed battery of a different victim on count one.
7
Petitioner did not title Grounds Three and Four of his habeas petition.
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under which this charge was filed, § 893.13, Fla. Stat., was subsequently declared unconstitutional
by the district court decision in Shelton v. Sec’y, Dep’t of Corr., 802 F.Supp.2d 1289 (M.D. Fla.
2011). Petitioner is not entitled to relief. His claim is foreclosed by the Eleventh Circuit Court of
Appeals’ opinion in Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir. 2012), which reversed
the district court decision upon which Petitioner relies. Because Petitioner’s argument is based on
a decision that has been vacated, this claim must fail. Accordingly, Petitioner is not entitled to relief
on Ground Three.
Ground Four:
Petitioner appears to raise two arguments within Ground Four.8 First, Petitioner contends
that the superseding information filed by the State, as well as the second superseding information
that he asserts was filed, violated double jeopardy by charging two counts of battery. However,
Petitioner did not specifically assert, either on direct appeal or in his Rule 3.850 motion,9 that the
amended charging documents violated double jeopardy by charging two counts of battery. State
procedural rules would prevent Petitioner from filing a second direct appeal or Rule 3.850 motion.
See Fla. R. App. P. 9.110; 9.140; Fla. R. Crim. P. 3.850(b). Therefore, this claim is unexhausted
and procedurally defaulted. Petitioner does not argue or show that the cause and prejudice or
fundamental miscarriage of justice exception applies.
Second, Petitioner claims that the second superseding information was invalid and the trial
court thus lacked jurisdiction over his case. Petitioner raised substantially the same claim as ground
8
Petitioner also filed two additional pleadings (Dkts. 16, 17) in which he appears to raise further argument
concerning the jurisdictional claim presented in Ground Four.
9
In addition to being cognizable on direct appeal, a claim asserting a violation of double jeopardy may be
cognizable in a Rule 3.850 motion. See Kerrin v. State, 8 So.3d 395, 396 (Fla. 1st DCA 2009).
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two of his Supplementation to Amended Motion for Postconviction Relief, where he argued that the
State filed a second superseding information that divested the trial court of jurisdiction, thereby
resulting in fundamental error and violation of his constitutional rights. (Dkt. 13, Ex. 12.) As
discussed in Ground One, the state court found this claim to be untimely under applicable Florida
law. For the same reasons addressed in Ground One, the state court’s disposition of his claim on
an independent and adequate state procedural ground renders his claim unexhausted and
procedurally defaulted. Petitioner neither asserts nor demonstrates that the cause and prejudice or
fundamental miscarriage of justice exception applies to his claim. Accordingly, Petitioner is not
entitled to relief on Ground Four.10
Accordingly, it is ORDERED AND ADJUDGED that Petitioner’s Petition for Writ of
Habeas Corpus (Dkt. 1) is DENIED. The Clerk is directed to enter judgment against Petitioner and
close this case.
It is further ordered that Petitioner is not entitled to a certificate of appealability. A petitioner
does not have absolute entitlement to appeal a district court’s denial of his habeas petition. 28
10
Petitioner’s reply includes two assertions that potentially could be construed as additional claims. First,
he contends that counsel was negligent for not objecting to the charging document and that counsel should have
objected “at every stage” of the proceedings. (Dkt. 15, p. 8) Second, he asserts that the State “provided nothing in
support of the Petitioner’s liability.” (Dkt. 15, p. 10.) To the extent the reply could be treated as an amendment to
his petition, Petitioner is not entitled to relief as these potential additional claims are time-barred. Because a federal
petition does not toll the one-year time limitation, Duncan v. Walker, 533 U.S. 167 (2001), an additional claim might
be untimely even though the original petition is timely. If the one-year period to file a habeas petition has expired
before an amended petition is filed, any additional claim is untimely unless it relates back to the original petition.
See Fed. R. Civ. P. 15(c)(1)(B); Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000).
Petitioner’s first claim asserts that counsel was ineffective for not objecting to the charging document and
during the proceedings generally. His second claim essentially challenges the sufficiency of the evidence offered
against him at trial. These proposed additional claims are separate from any grounds for relief raised in the petition.
Therefore, the claims can only be considered if they are timely independent of the original petition. In determining
that the original petition was timely, this Court noted that 226 days of un-tolled time passed before Petitioner filed
his habeas petition on December 9, 2011. Petitioner had 139 days remaining on the one-year period to file his
federal habeas petition, meaning that his federal filing limitation was April 26, 2012. He mailed his reply on May
24, 2012. (Dkt. 15, p. 12.) Consequently, any new claims raised in the reply are untimely.
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U.S.C. § 2253(c)(1). A district court must first issue a certificate of appealability (COA). Id. “A
[COA] may issue ... only if the applicant has made a substantial showing of the denial of a
constitutional right.” Id. at § 2253(c)(2). 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) (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 v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made this showing. Because Petitioner is not
entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida, on August 26, 2014.
SA:mcl
Copy furnished to:
Pro se Plaintiff
Counsel of Record
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