McElroy v. Secretary, Department of Corrections et al

Filing 30

OPINION AND ORDER. 1. Grounds Two, Three, and Four of the petition for a writ of habeas corpus 1 are DENIED, and this case is DISMISSED WITH PREJUDICE. 2. The Clerk of the Court shall enter judgment accordingly and is directed to close this case. 3. This court should grant an application for a Certificate of Appealability only if the Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner cannot make this s howing. Accordingly, a Certificate of Appealability is DENIED in this case. And because Petitioner is not entitled to a Certificate of Appealability, he is not entitled to proceed on appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 9/18/2017. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

HERBERT LEWIS McELROY,
Petitioner,
-vs-

Case No. 8:14-cv-1083-T-36AEP

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_________________________________/
ORDER
This matter comes before the Court on Petitioner’s petition for a writ of habeas corpus filed
under 28 U.S.C. § 2254 (“petition”) (Dkt. 1), Respondent’s supplemental response (Dkt. 27), and
Petitioner’s supplemental reply (Dkt.29). Upon consideration, the petition will be DENIED.
I. BACKGROUND
Petitioner was charged by Amended Information with nine drug-related charges (Counts 1
and 3-10), felonious possession of firearms (Count 2), and fleeing or eluding a law enforcement
officer (Count 11) (Respondent’s Ex. 1). On March 10, 2008, Counts 2 and 11 were severed from
the remaining counts (Respondent’s Ex. 11d, p. 11). After a jury trial on March 11, 2008, Petitioner
was found guilty on Counts 1 and 4-10, and guilty of a lesser included offense on Count 3
(Respondent’s Ex. 2). That same day he pleaded guilty to Count 2 (Respondent’s Ex. 11).1 On May
20, 2008, Petitioner filed a motion to withdraw the plea (Respondent’s Ex. 11A), which was denied
on October 7, 2008 (Respondent’s Ex. 11B).

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Count 11 was nolle prossed by the State (Respondent’s Ex. 5, p. 2 of Initial Brief).

On July 22, 2008, Petitioner was sentenced to 15 years on Counts 1 and 8, 10 years on
Counts 4, 6, and 9, and 5 years on Counts 3, 5, 7, and 10 (Respondent’s Ex. 3). He filed an
Amended Notice of Appeal on September 3, 2008 (Respondent’s Ex. 4). On October 22, 2008, he
was sentenced to15 years on Count 2 (Respondent’s Ex. 11C). He did not file a notice of appeal
with respect to Count 2. His trial based convictions and sentences were affirmed on appeal on
November 10, 2010 (Respondent’s Ex. 9). On November 17, 2010, Petitioner provided a Motion
for Rehearing of the appellate court’s decision to prison officials for mailing (Respondent’s Ex. 8).
That motion was received by the Florida Attorney General’s Office on November 22, 2010 (Id., p.
1). The motion, however, does not appear on the appellate court’s docket (Respondent’s Ex. 7).
The appellate court mandate issued December 6, 2010 (Respondent’s Ex. 10).
On November 24, 2010, Petitioner filed a motion for post-conviction relief under Rule 3.850,
Florida Rules of Criminal Procedure (Respondent’s Ex. 11D). That motion was denied in part and
dismissed in part on September 9, 2011 (Id.; Respondent’s Ex. 30). Petitioner did not appeal the
denial of that motion.
On November 27, 2011, Petitioner filed a motion for post-conviction relief under Rule 3.800,
Fla.R.Crim.P. (Respondent’s Ex. 12). That motion was denied (Respondent’s Ex. 13) and affirmed
on appeal (Respondent’s Ex. 18).

The appellate court mandate issued October 4, 2012

(Respondent’s Ex. 18A).
On June 13, 2012, Petitioner filed a second Rule 3.850 motion (Respondent’s Exs. 11D; 29).
The motion was denied on August 2, 2012 (Respondent’s Ex. 29). Petitioner did not appeal the
denial of that motion.
On December 3, 2012, Petitioner filed a third Rule 3.850 motion (Respondent’s Exs. 11D;

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19). The motion was dismissed as successive (Respondent’s Ex. 19). The dismissal of that motion
was affirmed (Respondent’s Ex. 23), and the appellate court mandate issued on March 27, 2014
(Respondent’s Ex. 26).
On January 7, 2013, Petitioner filed a petition for writ of habeas corpus alleging ineffective
assistance of appellate counsel (Respondent’s Ex. 27). The petition was dismissed as untimely on
February 12, 2013 (Respondent’s Ex. 28).
Petitioner filed his federal habeas petition in this court on May 2, 2014 (Dkt. 1). Respondent
filed a limited response arguing that the petition was time-barred (Dkt. 17). The court granted the
motion to dismiss solely to the extent that Ground One of the petition was dismissed as time-barred,
and directed Respondent to file a supplemental response addressing Grounds Two, Three, and Four
of the petition (Dkt. 26). Respondent filed a supplemental response (Dkt. 27), to which Petitioner
replied (Dkt. 29).
II. GOVERNING LEGAL PRINCIPLES
Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th
Cir. 2003). The AEDPA “establishes a more deferential standard of review of state habeas
judgments,” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to “prevent federal
habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible
under law.” Bell v. Cone, 535 U.S. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (recognizing that the federal habeas court’s evaluation of state-court rulings is highly
deferential and that state-court decisions must be given the benefit of the doubt).

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A. Standard of Review Under the AEDPA
Pursuant to the AEDPA, 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 “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
v. Taylor, 529 U.S. 362, 412 (2000).
“[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. Secretary 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 “contrary 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.
If the federal court concludes that the state court applied federal law incorrectly, habeas relief is
appropriate only if that application was “objectively unreasonable.” Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state

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court’s decision “was 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 “fell 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. “Thus, 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 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
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In 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.

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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, “the 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).
C. Exhaustion of State Remedies and Procedural Default
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 post-conviction motion. See § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526
U.S. 838, 842 (1999) (“[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.”). A state prisoner
“‘must give the state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process,’ including review by the state’s
court of last resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355,
1358-59 (11th Cir. 2003) (quoting O’Sullivan, 526 U.S. at 845.)
To exhaust a claim, a petitioner must make the state court aware of both the legal and factual
bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (“Exhaustion of
state remedies requires that the state prisoner ‘fairly presen[t] federal claims to the state courts in
order to give the State the opportunity to pass on and correct alleged violations of its’ prisoners
federal rights.’”) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). 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.”
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Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court
extends to both the broad legal theory of relief and the specific factual contention that supports
relief. Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The requirement of exhausting state remedies as a prerequisite to federal review is satisfied
if the petitioner “fairly presents” his claim in each appropriate state court and alerts that court to the
federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971).
A petitioner may raise a federal claim in state court “by citing in conjunction with the claim the
federal source of law on which he relies or a case deciding such claim on federal grounds, or simply
by labeling the claim ‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32 (2004).
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). To establish 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 (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 error
of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982). The petitioner must
show at least a reasonable probability of a different outcome. Crawford v. Head, 311 F.3d 1288,
1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally defaulted

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claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter,
529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs
in an extraordinary case where a constitutional violation has probably resulted in the conviction of
someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995). “‘[A]ctual innocence’
means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent
the constitutional error. Schlup, 513 U.S. at 327.
III. ANALYSIS3
Ground Two
Petitioner alleges his sentence is illegal under Florida law because he does not meet the
statutory criteria for designation as a habitual felony offender (HFO) under Fla. Stat. § 775.084. In
support of his claim, Petitioner states that the trial court improperly used a prior conviction for
possession of cannabis to enhance his sentence as an HFO. Petitioner raised this claim in his Rule
3.800(a) motion (Respondent’s Ex. 12). The trial court denied the claim, finding that Petitioner
qualified as an HFO because he had at least two prior felony convictions committed within the
preceding five years (Respondent’s Ex. 13). The appellate court affirmed (Respondent’s Ex. 18).
Respondent contends that Petitioner’s claim that he does not qualify as an HFO, simply
involves a state court’s interpretation and application of Florida law. This court agrees. Petitioner
does not expressly allege a federal constitutional violation in Ground Two. Federal habeas relief
may only be granted on the basis that a state prisoner is in custody in violation of the Constitution,
laws, or treaties of the United States. 28 U.S.C. § 2254(a). Therefore, a claim that only involves an
3

Notwithstanding additional argument by Respondent (Dkt. 27, pp. 4-12), the Court’s prior conclusion that
Grounds Two, Three, and Four are not time-barred has not changed.

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issue of state law is not cognizable in a federal habeas proceeding. Branan v. Booth, 861 F.2d 1507,
1508 (11th Cir. 1988). It is well-settled in this circuit that federal courts cannot review a state’s
alleged failure to adhere to its own sentencing procedures. Id.
State courts are the final arbiters of state law, and federal habeas courts should not
second-guess them on such matters. Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997). In this
case, the state appellate court’s affirmance on appeal from the denial of Petitioner’s Rule 3.800
motion settles a matter of state law, namely, that Petitioner meets the statutory criteria for
designation as a HFO.
Moreover, even liberally construing this claim as raising a federal issue, it is unexhausted
because Petitioner failed to bring a federal claim when he raised this claim in state court (see
Respondent’s Exs. 12, 16). His argument relied solely on Florida law (Id.).
Because Petitioner cannot return to state court to present his federal claim, it is procedurally
defaulted. See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001) (“If 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.”).

Petitioner has neither alleged nor shown either cause or

prejudice that would excuse the default. Moreover, he has neither alleged nor shown the
applicability of the actual innocence exception.
Accordingly, Ground Two does not warrant federal habeas relief.

Ground Three
In Ground Three, Petitioner raises two claims. In his first claim, Petitioner asserts that his

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trafficking, sale, and possession of cocaine convictions are void because the statute 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.
In his second claim, Petitioner contends that counsel was ineffective in failing to argue that
his convictions for sale of cocaine and possession of the same cocaine violate double jeopardy.
Respondent argues that this claim is unexhausted and now procedurally defaulted because although
Petitioner raised it in his June 2012 Rule 3.850 motion, he did not appeal the order denying that
motion. The Court agrees.
Before presenting federal constitutional claims to a federal court in a habeas petition, “state
prisoners must give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review process.” O’Sullivan, 526
U.S. at 845. In Florida, exhaustion requires not only the filing of a post-conviction motion, but an
appeal from its denial. See Leonard v. Wainwright, 601 F.2d 807, 808 (11th Cir. 1979). Petitioner
did not appeal the denial of his June 2012 Rule 3.850 motion (see Respondent’s Ex. 29). Therefore,
this claim is unexhausted. And, because Petitioner may not now return to state court to appeal the
denial of his Rule 3.850 motion, the claim is procedurally defaulted. Petitioner has not overcome

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this procedural default by showing cause and prejudice, or a fundamental miscarriage of justice.4
Accordingly, Ground Three does not warrant federal habeas relief.
Ground Four
Petitioner contends that counsel was ineffective in failing to pursue a defense of subjective
entrapment. Respondent argues that this claim is procedurally defaulted because the state postconviction court applied a state procedural bar finding that Petitioner should have raised the claim
in his initial two Rule 3.850 motions and not an unauthorized successive Rule 3.850 motion (see
Respondent’s Ex. 20). The court agrees.
A federal court must dismiss those claims that have been denied on adequate and
independent procedural grounds under state law. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In state court, Petitioner raised this claim in his third Rule 3.850 motion (Respondent’s Ex. 19). The
state court dismissed the third Rule 3.850 motion, concluding it was successive (Respondent’s Ex.
20). Accordingly, this claim is procedurally barred from review unless Petitioner establishes one of
the two exceptions to the procedural default rule. See Fla. R. Crim. P. 3.850(f) (2012) (“A second
or successive motion may be dismissed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or, if new and different grounds are
alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a
prior motion constituted an abuse of the procedure governed by these rules.”); Jackman v. State, 88

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Even if the claim were not procedurally defaulted, it would fail on the merits. See State v. McCloud, 577 So.
2d 939, 940 (Fla. 1991) (convictions for possession and sale of the same contraband do not violate principles of double
jeopardy); Tyler v. State, 107 So. 3d 547, 551 (Fla. 1st DCA 2013) (“where a defendant has been convicted of simple
possession of a controlled substance and sale of the same substance, in violation of applicable subsections of section
893.13, Florida Statutes (2010), double jeopardy prohibitions have not been violated.”).

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So. 3d 325, 327 (Fla. 4th DCA 2012) (“Successive motions are generally prohibited and should not
be allowed when the grounds alleged were known or could have been known at the time of the first
motion. . . .If a successive motion amounts to an abuse of process, it may be dismissed.”) (citations
omitted); LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1260 n. 25 (11th Cir.2005) (“This
Court has already concluded that the procedural requirements of Florida’s Rule 3.850 constitute
independent and adequate state grounds under the applicable law.”) (citing Whiddon v. Dugger, 894
F.2d 1266, 1267-68 (11th Cir.1990)).
Petitioner has not alleged or shown either cause or prejudice that would excuse the default.
Likewise, he has not shown the applicability of the actual innocence exception. He therefore has
failed to satisfy either of the exceptions to the procedural default bar. Accordingly, Ground Four
is procedurally barred and must be dismissed.
Any of Petitioner’s claims not specifically addressed herein have been determined to be
without merit.
Accordingly, it is ORDERED that:
1. Grounds Two, Three, and Four of the petition for a writ of habeas corpus (Doc. No. 1) are
DENIED, and this case is DISMISSED WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment accordingly and is directed to close this case.
3. This court should grant an application for a Certificate of Appealability only if the
Petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). Petitioner cannot make this showing.5 Accordingly, a Certificate of Appealability is
5

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases In the United States District Courts,

The district court must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant. Before entering the final order, the court may direct the parties to submit arguments

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DENIED in this case. And because Petitioner is not entitled to a Certificate of Appealability, he
is not entitled to proceed on appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida on September 18, 2017.

Copies to: Petitioner pro se; Counsel of Record

on whether a certificate should issue. . . .If the court denies a certificate, a party may not appeal the
denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure
22. A motion to reconsider a denial does not extend the time to appeal.

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