Maynor v. Secretary, Department of Corrections et al
Filing
15
OPINION AND ORDER. Maynor's petition for writ of habeas corpus 1 is hereby DENIED. The Clerk is directed to enter judgment against Maynor and to close this case. It is further ORDERED that Maynor is not entitled to a certificate of appealability and he is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 12/12/2016. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CALVIN MAYNOR,
Petitioner,
v.
Case No. 8:13-cv-3146-T-36TBM
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________/
ORDER
Petitioner Calvin Maynor, an inmate in the Florida Department of Corrections
proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt.
1). He challenges his convictions entered by the Circuit Court for the Sixth Judicial Circuit,
Pinellas County, Florida, in 2008. Respondent filed a response to the petition (Dkt. 10).1
Maynor filed a reply (Dkt. 13). Upon review, the petition must be denied.
PROCEDURAL HISTORY
Maynor entered a negotiated plea of guilty to two counts of robbery with a firearm
(counts one and two), one count of felonious possession of firearms or ammunition (count
three), one count of aggravated assault (count four), and one count of aggravated battery
(count five). (Dkt. 12, Exs. 2-4.) He was sentenced to consecutive terms of ten years in
prison on counts one and two and three years in prison on count three, and concurrent
1
Respondent states that the petition is “arguably timely” but does not expressly challenge the petition
as untimely. The Court treats Maynor’s federal habeas petition as timely filed under 28 U.S.C.
§ 2244(d)(1)(A).
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terms of five years in prison on count four and ten years in prison on count five, for an
overall term of twenty-three years in prison. (Dkt. 12, Ex. 5.) The state appellate court per
curiam affirmed the convictions and sentences. (Dkt. 12, Ex. 8.)
Maynor filed a motion that the state court treated as both a motion to correct illegal
sentence under Florida Rule of Criminal Procedure 3.800(a) and a motion for
postconviction relief under Rule 3.850. (Dkt. 12, Ex. 9.) The state court’s denial of this
motion was per curiam affirmed. (Dkt. 12, Exs. 10, 11.) Maynor next filed a petition for writ
of habeas corpus in the Florida Supreme Court, which transferred the petition to the state
circuit court for consideration under Rule 3.850. (Dkt. 12, Exs. 13, 14.) The state court
later granted Maynor’s motion to withdraw this postconviction motion. (Dkt. 12, Exs. 22,
23.) Maynor filed two more Rule 3.800(a) motions to correct illegal sentence. (Dkt. 12,
Exs. 24, 25, 30.) The state court rejected these motions (Dkt. 12, Exs. 26, 31), and Maynor
did not appeal. Maynor also filed three more petitions for writ of habeas corpus in the state
appellate courts. (Dkt. 12, Exs. 27, 33, 36.) His petitions were either denied or dismissed.
(Dkt. 12, Exs. 28, 35, 37.)
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this
proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert.
denied, 531 U.S. 840 (2000). 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), which sets forth a highly deferential standard for federal court
review of a state court adjudication, states:
An application for a writ of habeas corpus on behalf of a person in custody
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pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
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.
“The focus . . . is on whether the state court’s application of clearly established federal law
is objectively unreasonable . . . an unreasonable application is different from an incorrect
one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Accord Brown v. Head,
272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not the
correctness per se, of the state court decision that [the federal court is] to decide.”). The
phrase “clearly established Federal law” encompasses only the holdings of the United
States Supreme Court “as of the time of the relevant state-court decision.” Williams, 529
U.S. at 412.
The purpose of federal review is not to re-try the case. “The [AEDPA] modified a
federal habeas court’s role in reviewing state prisoner applications in order to prevent
federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the
extent possible under law.” Cone, 535 U.S. at 693. In other words, “AEDPA prevents
defendants–and federal courts–from using federal habeas corpus review as a vehicle to
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second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779
(2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to
meet,’ . . . and ‘highly deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the doubt’ . . . .”) (citations
omitted).
“[T]he summary nature of a state court’s decision does not lessen the deference that
it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc
denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906
(2003). See also Richter, 562 U.S. at 99 (“When a federal claim has been presented to a
state court and the state court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.”).
Review of the state court decision is limited to the record that was before the state
court:
We now hold that review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits. Section
2254(d)(1) refers, in the past tense, to a state-court adjudication that
“resulted in” a decision that was contrary to, or “involved” an unreasonable
application of, established law. This backward-looking language requires an
examination of the state-court decision at the time it was made. It follows
that the record under review is limited to the record in existence at that same
time, i.e., the record before the state court.
Pinholster, 563 U.S. at 181-82. Maynor bears the burden of overcoming by clear and
convincing evidence a state court factual determination. “[A] determination of a factual
issue made by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing evidence.” 28
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U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not
to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.),
cert. denied, 534 U.S. 1046 (2001).
DISCUSSION
Ground One
Maynor alleges a federal double jeopardy violation. He asserts that because his
convictions for robbery with a firearm, felonious possession of firearms or ammunition, and
aggravated assault involved possession of the same firearm, and arose from a single
criminal episode in which “the firearm is the essential element of each charge,” these
crimes are “the same offense.” (Dkt. 1, p. 8.)
The double jeopardy clause of the Fifth Amendment protects “against a second
prosecution for the same offense after acquittal. It protects against a second prosecution
for the same offense after conviction. And it protects against multiple punishments for the
same offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting North Carolina v.
Pearce, 395 U.S. 711, 717 (1969)).
This claim cannot provide relief because Maynor waived it by entering his negotiated
guilty plea. Maynor raises no challenge to the voluntariness of his plea, and the record
confirms that his plea was voluntary. The standard for determining the validity of a guilty
plea is “whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25,
31 (1970). “A reviewing federal court may set aside a state court guilty plea only for failure
to satisfy due process: ‘If a defendant understands the charges against him, understands
the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being
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coerced to do so, the guilty plea . . . will be upheld on federal review.’” Stano v. Dugger,
921 F.2d 1125, 1141 (11th Cir. 1991) (quoting Frank v. Blackburn, 646 F.2d 873, 882 (5th
Cir. 1980)).
At the change of plea hearing, counsel stated on the record that Maynor faced a
possible sentence of life imprisonment. (Dkt. 12, Ex. 4, p. 3.) Maynor’s statements during
the change of plea hearing reflect that he read the plea form, which listed a maximum term
of life in prison, and had no questions about the form. (Id., p. 6; Dkt. 12, Ex. 3.) He
indicated that he had no questions about the factual basis for the charges the State
presented at the hearing. (Dkt. 12, Ex. 4, p. 8.) The colloquy further reflects that Maynor
pleaded guilty because he was in fact guilty. (Id., pp. 8-9.) Maynor stated that he
understood the plea and the rights he was giving up by entering it. (Id., p. 9-10.) He told
the court that no one made him any other promises or forced or coerced him into making
the plea. (Id., pp. 10-11.)
A voluntary plea waives all nonjurisdictional defects in the proceeding. Wilson v.
United States, 962 F.2d 996, 997 (11th Cir. 1992) (“A defendant who enters a plea of guilty
waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an
attack on the voluntary and knowing nature of the plea can be sustained.”). This waiver
applies to an allegation of a double jeopardy violation. Dermota v. United States, 895 F.2d
1324, 1325 (11th Cir. 1990) (“Dermota waived his right to raise a double jeopardy objection
by pleading guilty to two separate offenses as a result of a plea agreement he entered into
freely, voluntarily and accompanied by his attorney.”). See also United States v. Broce,
488 U.S. 563, 574-76 (1989) (defendants could not allege double jeopardy violation after
pleading guilty to indictments that, on their face, alleged separate offenses). Negotiated
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pleas also serve to waive constitutional claims under Florida law. See Novaton v. State,
634 So.2d 607 (Fla. 1994) (a negotiated plea waives a subsequent double jeopardy claim).
However, an exception to the general waiver rule exists “[i]n certain circumstances”
for double jeopardy claims. United States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009).
Specifically, “[w]here the State is precluded by the United States Constitution from haling
a defendant into court on a charge, federal law requires that a conviction on that charge be
set aside even if the conviction was entered pursuant to a counseled plea of guilty.” Menna
v. New York, 423 U.S. 61, 62 (1975) (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974)).
Therefore, “[a] plea of guilty to a charge does not waive a claim that judged on its face the
charge is one which the State may not constitutionally prosecute.” Id. at 62 n.2.
This exception does not apply to invalidate Maynor’s waiver of his double jeopardy
challenge. Maynor challenges his convictions and sentences on counts one, two, three,
and four as having resulted in multiple punishments for the same offense. However,
Maynor pleaded guilty to a charging document alleging four different offenses. The State’s
factual basis provides that Maynor, a convicted felon, entered a convenience store with a
firearm. (Dkt. 12, Ex. 4, pp. 7-8.) He demanded and obtained money from store owner
Merwan Grade. (Id., p. 7.) Maynor pointed the gun at Grade’s wife, who was also in the
store. (Id.) Maynor then demanded and obtained money from Tamas Kiss, a customer.
(Id.) Maynor was charged in count one with armed robbery of Grade, in count two with
armed robbery of Kiss, in count three with felonious possession of firearms or ammunition,
and in count four with aggravated assault of Fakiha Abubeker. (Dkt. 12, Ex. 2.)
Maynor fails to demonstrate that the State could not prosecute all of these offenses.
Determining whether the double jeopardy waiver exception applies involves a consideration
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of legislative history, the “same elements” test under Blockburger v. United States, 284
U.S. 299 (1932), and the record.
Bonilla, 579 F.3d at 1241-44.
First, the Florida
Legislature has stated that “[w]hoever, in the course of one criminal transaction or episode,
commits an act or acts which constitute one or more separate criminal offenses, upon
conviction and adjudication of guilt, shall be sentenced separately for each criminal offense”
and that its intent “is to convict and sentence for each criminal offense committed in the
course of one criminal episode.” § 775.021(4)(a)-(b), Fla. Stat.
Second, in evaluating a double jeopardy claim, Blockburger provides that:
The applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.
284 U.S. at 304. “If each offense requires proof of a fact that the other does not, the
Blockburger test is satisfied despite any overlap in the proof necessary to establish the
crimes.” United States v. Moore, 43 F.3d 568, 571 (11th Cir. 1994) (citing Iannelli v. United
States, 420 U.S. 770, 785 n.17 (1975)).
Under Florida law, robbery “means the taking of money or other property which may
be the subject of larceny from the person or custody of another, with intent to either
permanently or temporarily deprive the person or the owner of the money or other property,
when in the course of the taking there is the use of force, violence, assault, or putting in
fear.” § 812.13(1), Fla. Stat. Robbery is reclassified when the offender carries a firearm
during the course of committing the robbery.
§ 812.13(2)(a), Fla. Stat.
Felonious
possession of firearms or ammunition occurs when a person convicted of a felony owns or
has in his care, custody, possession, or control any firearm or ammunition. § 790.23(1)(a),
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Fla. Stat. Finally, an assault is “an intentional, unlawful threat by word or act to do violence
to the person of another, coupled with an apparent ability to do so, and doing some act
which creates a well-founded fear in such other person that such violence is imminent.”
§ 784.011(1), Fla. Stat. An assault with a deadly weapon without intent to kill or with an
intent to commit a felony is aggravated assault. § 784.021(1)(a)-(b), Fla. Stat.
Each offense with which Maynor was charged requires proof of an element that the
others do not.2 Furthermore, each count of robbery with a firearm applied to a different
victim, and the count of aggravated assault applied to an individual who was not a victim
of either of the counts of robbery with a firearm. Thus, Maynor has not demonstrated that
any of his convictions for counts one through four resulted from his twice being placed in
jeopardy. Lastly, based on the state court record at the time of the plea, there is no
indication that the State was prohibited from bringing and prosecuting the offenses charged
in these counts. Accordingly, Maynor’s voluntary negotiated plea has waived his double
jeopardy allegation.
2
The Florida Supreme Court has rejected the argument that armed robbery necessarily subsumes
aggravated assault with a deadly weapon:
In State v. Baker, 452 So.2d 927 (Fla. 1984), this Court specifically held that aggravated
assault with a deadly weapon was not a necessarily lesser included offense of armed robbery
because aggravated assault with a deadly weapon contained a statutory element not
contained in armed robbery. We explained:
In virtually every case of armed robbery, the deadly weapon carried by the
perpetrator is the means by which he induces “force, violence, assault, or
putting in fear,” one of the elements of any robbery, armed or unarmed.
However, the statutory element which enhances punishment for armed
robbery is not the use of the deadly weapon, but the mere fact that a deadly
weapon was carried by the perpetrator. The victim may never even be
aware that a robber is armed, so long as the perpetrator has the weapon in
his possession during the offense.
Taylor v. State, 608 So. 2d 804, 805 (Fla. 1992) (quoting State v. Baker, 452 So.2d 927, 929 (Fla. 1984)).
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Even if the claim was not waived, and assuming Maynor exhausted3 a federal double
jeopardy claim in his first postconviction motion and on appeal from the denial of that
motion (Dkt. 12, Exs. 9-11), he would not be entitled to relief. His double jeopardy claim
fails on the merits for the same reasons that the waiver exception does not apply. He cites
no controlling authority that supports his contention that the offense of felonious possession
of firearms or ammunition precludes prosecution for other offenses in which he used the
firearm.4 Accordingly, Maynor does not demonstrate that he was twice convicted or
punished for the same offense. He has not shown that the state court’s rejection of his
double jeopardy claim was contrary to or an unreasonable application of clearly established
federal law, or was based on an unreasonable determination of the facts.
Within Ground One, Maynor also argues that the trial court violated his plea
agreement by changing its terms.
The plea agreement called for him to receive
consecutive minimum mandatory terms on counts one, two, and three. (Dkt. 12, Ex. 3.)
However, the court did not impose minimum mandatory terms at sentencing. (Dkt. 12, Ex.
5.) Maynor now alleges that he must be resentenced to minimum mandatory terms but that
3
Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must
exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in
a state postconviction motion. 28 U.S.C. § 2254(b)(1)(A).
4
In his reply, Maynor cites Hall v. State, 752 So.2d 1245 (Fla. 3d DCA 2000), which provides that a
defendant may not be convicted of the crime of unlawful possession of a firearm while engaged in a criminal
offense and the crime of robbery with a firearm. See also Elozar v. State, 872 So.2d 934, 937 (Fla. 5th DCA
2004) (explaining that, when a defendant is convicted of robbery with a firearm, he cannot also be convicted
of the separate offense of possession of a firearm during the commission of a felony based upon the single
act of using the same firearm). However, Maynor was not convicted of the offense described in these cases.
See § 790.07(2), Fla. Stat. (a person who commits or attempts to commit a felony while displaying, using,
threatening, or attempting to use a firearm or carrying a concealed firearm is guilty of a second degree felony).
Rather, count three charged a violation of § 790.23, Fla. Stat. As addressed, subsection (1)(a) of this statute
prohibits a person convicted of a felony from owning or having in his care, custody, possession, or control any
firearm or ammunition.
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Florida sentencing law requires those terms to be imposed concurrently, not consecutively.
Maynor does not present a federal claim as to this argument. Although Maynor
makes a vague statement in his reply that this claim involves a federal issue, he identifies
no specific constitutional violation and presents argument solely involving state sentencing
law. Federal habeas relief can only be granted on the basis that an inmate’s custody
pursuant to a state court judgment violates the Constitution, laws, or treaties of the United
States. 28 U.S.C. § 2254(a). Accordingly, claims like Maynor’s that rest on issues of state
law are not cognizable in a federal habeas petition. See Branan v. Booth, 861 F.2d 1507,
1508 (11th Cir.1988) (“It is clear from [28 U.S.C. § 2254(a)] that a habeas petition grounded
on issues of state law provides no basis for habeas relief.”). Moreover, “[i]n the area of
state sentencing guidelines in particular, we consistently have held that federal courts can
not review a state’s alleged failure to adhere to its own sentencing procedures.” Id.
Maynor’s state law claim that the sentencing court improperly altered the plea agreement
raises no basis for federal habeas relief. Maynor is not entitled to relief on Ground One.
Grounds Two and Three
In Ground Two, Maynor asserts that the “filing of the felony information is null and
void.” (Dkt. 1, p. 12.) He claims that his constitutional rights were violated because the
State filed the charging document without receiving testimony from a material witness as
required by Florida law and procedural rules. In Ground Three, Maynor argues that his
constitutional rights were violated when the prosecutor amended count five from battery to
aggravated battery without leave of court.
In his federal habeas petition, Maynor has not clearly raised a federal claim with
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respect to either Ground Two or Ground Three. His claims amount to allegations that the
Office of the State Attorney failed to comply with Florida law governing the filing and
amending of charging documents. Maynor’s conclusory references to federal constitutional
amendments in his reply with respect to Ground Two are insufficient to raise a federal
claim. The prohibition against granting federal habeas relief on the basis of a state law
claim applies even when the state law claim is “couched” in terms of federal law. See
Branan, 861 F.2d at 1508 (“This limitation on federal habeas review is of equal force when
a petition, which actually involves state law issues, is ‘couched in terms of equal protection
and due process.’”) (quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir. 1976)).
Moreover, the body of Maynor’s reply presents argument about the adequacy of the State’s
actions in accordance with Florida law with respect to Ground Two.
Similarly, the
gravamen of his argument in Ground Three is that the prosecutor improperly amended the
state charging document without permission of the state court. Because Grounds Two and
Three present matters of state law that are not cognizable on federal habeas review, they
cannot afford Maynor relief.
It is therefore
ORDERED that Maynor’s petition for writ of habeas corpus (Dkt. 1) is hereby
DENIED. The Clerk is directed to enter judgment against Maynor and to close this case.
It is further ORDERED that Maynor 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 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
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showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a
showing, Maynor “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)). Maynor has not made this showing. Finally, because Maynor is not entitled to
a COA, he is not entitled to appeal in forma pauperis.
ORDERED in Tampa, Florida, on December 12, 2016.
Copy to:
Calvin Maynor
Counsel Of Record
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