Crayton v. Secretary, Department of Corrections et al
Filing
44
OPINION AND ORDER. The Respondent's motion to dismiss the petition as untimely is DENIED. (Doc. 10.) The amended petition for the writ of habeas corpus is DENIED. (Doc. 6.) Crayton's request for a hearing on the timeliness of the pe tition or, in the alternative, a hearing on the merits of the petition is DENIED as moot. (Doc. 29 at 6.) Crayton's request for an evidentiary hearing is DENIED as moot. (Doc. 42 at 9.) The Clerk is directed to enter a judgment against Crayt on and to CLOSE this case. Crayton is not entitled to a certificate of appealability. A certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Crayton must obtain permission from the circuit court to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 9/28/2017. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FREDDIE CRAYTON,
Petitioner,
v.
Case No. 8:14-cv-2234-T-36MAP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
/
ORDER
Freddie Crayton (“Crayton”), a former Florida prisoner, initiated this action with a
pro se pleading entitled “newly discovered evidence pursuant to Rule 33 of the Federal
Rules of Criminal Procedure.”
(Doc. 1.)
Crayton also filed a pleading containing
argument. (Doc. 2.) Construing these filings as a petition for writ of habeas corpus
pursuant to 28 U.S.C. Section 2254 and a memorandum of law in support, the Court
directed Crayton to file an amended petition on the prescribed form.1 (Doc. 5.) Crayton
filed an amended petition in which he challenges his convictions entered by the Sixth
Judicial Circuit for Pinellas County, Florida. (Doc. 6.)
Respondent filed a response asserting that the amended petition is untimely and
submitted exhibits in support. (Docs. 10, 12.) Crayton filed a pro se reply, (Doc. 15), to
1
Crayton was “in custody” when he filed the construed federal petition because he was serving the
probationary portion of his split sentence. See Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982) (per
curiam) (“In the context of habeas proceedings, the ‘in custody’ requirement may also be met where a
petitioner is on probation . . . .”).
1
which Respondent filed a supplemental response and supplemental exhibits. (Docs. 19,
21, 23.) Crayton retained habeas counsel, who filed a response requesting a hearing on
the timeliness of the petition or, in the alternative, a hearing on the merits of the petition.
(Doc. 29.) Respondent filed a response in opposition to this request. (Doc. 30.) Pursuant
to this Court’s order, Respondent then filed an amended response addressing the
grounds for relief.
(Docs. 31, 34.)
Additional exhibits were furnished.
(Doc. 37.)
Crayton’s counsel filed a reply. (Doc. 42). Upon review, the Court finds that the amended
petition is timely and it will be denied.
I. PROCEDURAL HISTORY
Crayton was found guilty after a jury trial of sexual activity with A.L., a child 12
years of age or older but less than 18 years of age, while Crayton was in a position of
familial or custodial authority (count two).
Crayton was also found guilty of sexual
misconduct with J.H., a juvenile offender, who was detained or supervised by, or
committed to the custody of, the Florida Youth Academy (count four).2 (Doc. 37, Resp.
Ex. 37, R 69-70.) Crayton was sentenced to concurrent prison terms of 15 years, of which
10 years was suspended. The suspended portion of the sentence was ordered to be
served on sex offender probation. (Doc. 37, Resp. Ex. 37, R 71-75.) On August 26,
2005, the state appellate court per curiam affirmed.3 Crayton v. State, 911 So. 2d 108
(Fla. 2d DCA 2005).
2
The State nolle prossed two counts of sexual activity with a child (counts one and three) before trial. (Doc.
37, Resp. Ex. 37, R 65.)
3
Crayton filed a pro se Fla. R. Crim. P. 3.800(c) motion for reduction and modification of sentence, which
was denied by order rendered October 20, 2005. (Doc. 12, Resp. Ex. 23 at 9; Doc. 15-2 at 30.)
2
On September 18, 2006, Crayton filed his first pro se motion for post-conviction
relief pursuant to Florida Rule of Criminal Procedure 3.850. (Doc. 12, Resp. Ex. 6.) The
2006 Rule 3.850 motion was summarily denied. (Doc. 12, Resp. Ex. 7.) The state
appellate court per curiam affirmed, Crayton v. State, 958 So. 2d 929 (Fla. 2d DCA 2007),
and the mandate issued on June 28, 2007. (Doc. 12, Resp. Ex. 10.)
While his 2006 Rule 3.850 motion was pending, Crayton filed a pro se motion to
correct sentence pursuant to Florida Rule of Procedure 3.800(a), in which he sought
additional pre-sentence credit. (Doc. 23, Resp. Ex. 32.) The Rule 3.800(a) motion was
granted by order rendered January 18, 2007. (Doc. 12, Resp. Ex. 23 at 8; Doc. 23, Resp.
Ex. 33) Pursuant to the trial court’s order, the state court clerk amended the jail credit
provision on Crayton’s sentence to show an award of an additional 17 days of credit for
pre-sentence time spent in jail. (Doc. 23, Resp. Ex. 34 at 5.)
On August 20, 2007, Crayton filed a second pro se Rule 3.850 motion. (Doc. 12,
Resp. Ex. 11.) The 2007 Rule 3.850 motion was summarily denied in part, and a final
denial was rendered after a 2008 evidentiary hearing.4 (Doc. 12, Resp. Exs. 12, 16.)
Crayton’s motion for rehearing, which did not come to the state trial court’s attention until
2012, was denied. (Doc. 37, Resp. Ex. 37, R 290-91.) The state appellate court per
curiam affirmed, Crayton v. State, 123 So. 3d 567 (Fla. 2d DCA 2013), and the mandate
issued on October 31, 2013. (Doc. 12, Resp. Ex. 20.)
Before the October 31, 2013, mandate issued, Crayton filed a third pro se Rule
3.850 motion on March 13, 2013. (Doc. 12, Resp. Ex. 24.) This motion was stricken
4
During pendency of the 2007 Rule 3.850 motion, Crayton filed a pro se state habeas petition on September
17, 2007. Florida’s Second District Court of Appeal transferred the petition to the state trial court, which
dismissed the petition by order rendered February 12, 2008. (Doc. 12, Resp. Exs. 21-22, 23 at 6.)
3
because it did not comply with Rule 3.850’s oath requirement. (Doc. 12, Resp. Ex. 25.)
On April 5, 2013, Crayton filed a pro se Rule 3.850 motion. (Doc. 12, Resp. Ex. 26.) The
state court dismissed the March 13, 2013, and April 5, 2013, Rule 3.850 motions as
untimely filed. (Doc. 12, Resp. Ex. 27.) The state appellate court per curiam affirmed the
ruling, Crayton v. State, 138 So. 3d 445 (Fla. 2d DCA 2014), and the mandate issued on
May 23, 2014. (Doc. 12, Resp. Ex. 28.)
On November 17, 2014, Crayton filed a pro se petition for writ of habeas corpus in
the Florida Supreme Court, which determined that relief was not authorized and
dismissed the proceeding on December 15, 2014. (Doc. 12, Resp. Exs. 29, 30.) Crayton
v. State, 160 So. 3d 893 (Fla. 2014). The Supreme Court denied Crayton’s petition for
writ of certiorari. Crayton v. Florida, 136 S. Ct. 231, reh'g denied, 136 S. Ct. 610 (2015).
TIMELINESS OF PETITION
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a
one-year statute of limitations for a state prisoner to file a § 2254 petition for a writ of
habeas corpus, which begins to run under Section 2244(d)(1)(A) on the date the
prisoner's state judgment becomes final. The limitations period 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).
The final sentence is the judgment. Burton v. Stewart, 549 U.S. 147, 156 (2007)
(citation omitted). Crayton’s original judgment was rendered in 2003. (Doc. 23, Resp. Ex.
34 at 3.) In an order rendered January 18, 2007, the state court granted Crayton’s pro
se Rule 3.800(a) motion requesting additional credit for time served and directed the clerk
to amend the judgment of conviction and sentence to include an additional 17 days of
4
pre-sentence credit and to forward the amended judgment and sentence to the
Department of Corrections. (Doc. 23, Resp. 33.) The jail credit provision of his sentence
was amended by notation to include 17 additional days of jail credit for a total of 71 days.
(Doc. 23, Resp. Ex. 34 at 5.) Crayton is in custody on the amended judgment. See
Ferreira v. Sec'y, Dep't of Corr., 494 F.3d 1286, 1293 (11th Cir. 2007) (“Burton makes
clear that the writ and AEDPA, including its limitations provisions, are specifically focused
on the judgment which holds the petitioner in confinement.”).
The state court’s
determination that Crayton was entitled to additional credit did not require the state court
to vacate the sentence. Even so, the judgment that authorized Crayton’s imprisonment
was amended, and Crayton’s one-year limitations period commenced when the amended
judgment was final. See e.g., Walker v. Sec'y, Dep't of Corr., No. 1:12CV282-RH/GRJ,
2014 WL 2095370, at *5 (N.D. Fla. May 20, 2014) (unpublished) (holding that petitioner
was entitled to a later triggering date for the federal limitations period where state court
amended the sentence nunc pro tunc to the date of judgment of conviction). Cf., Eberle
v. Warden, 532 Fed. App’x. 605, 610 (6th Cir. 2013) (“[A] modification of a previously
imposed sentence to afford presentence credits also does not affect the date on which
finality attaches for statute-of-limitation purposes.”) (citation omitted).
Respondent contends that the construed federal petition, that initiated this
proceeding, was filed after Crayton’s one-year limitations period expired. (Doc. 21 at 6.)
Respondent asserts, and Crayton does not dispute, that his amended judgment was final
on March 3, 2007, when the time for taking an appeal expired. (Doc. 21 at 5.) Crayton’s
limitations period would have started the next day. See San Martin v. McNeil, 633 F.3d
1257, 1266 (11th Cir. 2011) (“under Fed.R.Civ.P. 6(a)(1), ‘in computing any time period
5
specified in . . . any statute that does not specify a method of computing time . . . [we
must] exclude the day of the event that triggers the period[,] count every day, including
intermediate Saturdays, Sundays, and legal holidays[, and] include the last day of the
period,’ unless the last day is a Saturday, Sunday, or legal holiday.”). However, Crayton’s
2006 Rule 3.850 motion (Doc. 12, Resp. Ex. 6) was pending at the time.
The 2006 Rule 3.850 motion, “properly filed” within the meaning of § 2244(d)(2),
tolled Crayton’s one-year limitations period until the mandate issued on June 28, 2007, in
his post-conviction appeal.5 (Doc. 12, Resp. Ex. 10.) See Lawrence v. Florida, 549 U.S.
327, 332 (2007) (“After the State's highest court has issued its mandate or denied review,
no other state avenues for relief remain open. And an application for state postconviction
review no longer exists.”). Crayton’s federal limitations period started running the next
day. A period of 52 days ran on Crayton’s limitations period before it was tolled on August
20, 2007, when he filed his 2007 Rule 3.850 motion. 6 (Doc. 12, Resp. Ex. 11.) The 2007
Rule 3.850 motion, denied on the merits, was “properly filed” within the meaning of the
tolling statute, and was pending until mandate issued in Crayton’s post-conviction appeal
on October 31, 2013. (Doc. 12, Resp. Ex. 20.) Crayton filed the construed petition 312
days later on Monday, September 8, 2014 (Doc. 1), before his one-year limitations period
expired. The Court finds that the construed federal petition is timely, and further, that the
5
Crayton’s Rule 3.800(c) motion was denied, and his Rule 3.800(a) motion was granted, before Crayton’s
amended judgment was final.
6
Crayton’s state habeas petition filed September 17, 2007, and dismissed by order rendered February 12,
2008, had no tolling effect. (Doc. 12, Resp. Exs. 21, 22, 23 at 6.) His third Rule 3.850 motion and his
amended Rule 3.850 motion were denied as untimely filed. ((Doc. 12, Resp. Exs. 24, 26, 27.)
Thus, these Rule 3.850 motions were never “properly filed.” See Pace v. DiGuglielmo, 544 U.S.
408, 417 (2005) (“time limits, no matter their form, are ‘filing’ conditions”). See also Hernandez–
Alberto v. Sec'y, Fla. Dep't of Corr., 840 F.3d 1360, 1366 (11th Cir. 2016) (per curiam) (“The key
takeaway from Pace is that an untimely application was not, and could not ever have been
considered, properly filed.”).
6
amended petition (Doc. 6) is timely. Accordingly, Respondent’s motion to dismiss the
petition as untimely will be denied. (Doc. 10.)
STANDARD OF REVIEW
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). A federal
court may only grant a writ of habeas corpus to a state prisoner on a claim adjudicated
on the merits in a state court where the state court’s decision “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “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).
EXHAUSTION OF STATE COURT REMEDIES; 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. 28 U.S.C. §
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.”). See also Henderson v. Campbell, 353
F.3d 880, 891 (11th Cir. 2003) (“A state prisoner seeking federal habeas relief cannot
raise a federal constitutional claim in federal court unless he first properly raised the issue
in the state courts.”) (citations omitted). 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
7
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)). 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).
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,” the prisoner must show “that some
objective factor external to the defense impeded . . . efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To show prejudice, a
petitioner must demonstrate that the errors "worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions." Jackson
8
v. Herring, 42 F.3d 1350, 1361 (11th Cir. 1995) (quoting United States v. Frady, 456 U.S.
152, 170 (1982) (emphasis in original).
Alternatively, a petitioner may obtain federal habeas review of a procedurally
defaulted 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). This exception concerns a petitioner's “actual”
innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To overcome a
procedural default through a showing of actual innocence, the petitioner must present
“reliable evidence . . . not presented at trial” such that “it is more likely than not that no
reasonable juror would have convicted him of the underlying offense.” Johnson, 256 F.3d
at 1171 (quoting Schlup, 513 U.S. at 324, 327) (internal quotation marks omitted)).
DISCUSSION
Ground One
Crayton alleges he was not read his Miranda7 rights by Officer Karl Gracy, the
arresting officer, when he was taken in a patrol car to jail. (Doc. 6 at 5.) Crayton asserts
that Officer Gracy never read him his Miranda rights when arresting him. (Doc. 6 at 19).
Crayton did not raise this ground at trial and on direct appeal. Accordingly, this ground is
unexhausted. Crayton acknowledges that he did not raise this ground on direct appeal.
(Doc. 6 at 5.) He further indicates that he did not raise this ground in a post-conviction
motion. (Doc. 6 at 6.)
7
Miranda v. Arizona, 384 U.S. 436 (1966).
9
Federal courts may treat unexhausted claims as procedurally defaulted, even
absent a state court determination to that effect, if it is clear from state law that any future
attempt at exhaustion would be futile. Bailey v. Nagle, 172 F.3d 1299, 1305 (11th
Cir.1999); Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (“[I]f the petitioner failed to
exhaust state remedies and the court to which the petitioner would be required to present
his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred . . . there is a procedural default for purpose of federal habeas. . . .”).
Because this ground could have been raised at trial and on direct appeal, it is procedurally
barred under Florida law. Crayton cannot raise this ground in an untimely, successive
direct appeal. See Fla. R. App. P. 9.140(b)(3) (a defendant must appeal a final judgment
within 30 days following rendition of a written order imposing sentence). Accordingly, this
ground is procedurally defaulted.
Crayton does not allege that an objective factor external to the defense caused the
default. Rather, Crayton asserts in his amended petition that “I thought my counsel
suppressed everything about my Miranda rights.” (Doc. 6 at 6.) Any mistaken assumption
on Crayton’s part that trial counsel addressed this ground in the course of the state court
proceedings does not excuse Crayton’s default. Crayton must show the existence of an
“external impediment, whether it be governmental interference or the reasonable
unavailability of the factual basis for the claim” which prevented him from raising the claim.
See McCleskey v. Zant, 499 U.S. 467, 497 (1991) (quoting Murray v. Carrier, 477 U.S. at
488).
Crayton states that he did not know the law and trusted his counsel “with
everything.” (Doc. 6 at 6.) Crayton’s lack of knowledge of the law does not constitute
cause for the default. See e.g., Toole v. McDonough, 379 Fed. App'x. 883, 885, n.5 (11th
10
Cir. 2010) (rejecting petitioner’s contention that his pro se status and lack of legal
knowledge constituted an external impediment justifying his failure to exhaust his claim).
Crayton states that he mentioned in a Rule 3.850 motion that his trial counsel did
not suppress his statement to the law enforcement officer. (Doc. 6 at 19.) Crayton does
not contend –– as cause to excuse his default of this ground –– that his trial counsel failed
to move to suppress Crayton’s statements on the basis that Crayton was not given his
Miranda rights when Crayton was in the police car, or at any other time. Were the
amended petition construed to raise that claim, it is procedurally barred because Crayton
did not raise the claim in a timely rule 3.850 motion. While an ineffective assistance of
counsel claim can constitute cause for the procedural default of another claim, the
ineffective assistance claim must not, itself, be procedurally barred.
Edwards v.
Carpenter, 529 U.S. at 453.
In the first ground of Crayton’s 2006 Rule 3.850 motion, Crayton alleged that his
counsel failed to move to suppress Crayton’s statement to the officer. (Doc. 12, Resp.
Ex. 6.) Crayton asserted that while being interrogated, he requested appointment of a
lawyer, after the officer insisted that the victims were telling the truth. (Doc. 12, Resp. Ex.
6.) However, Crayton’s Rule 3.850 motion did not allege that Crayton was not given his
Miranda rights when Crayton was in the police car. (Id.) In his appellate brief on appeal
of the summary denial of his Rule 3.850 motion, Crayton stated that: he was arrested at
Seminole High school; he was never read his Miranda rights; he was questioned about
the other victim, A.L.; and Crayton asked to speak with an attorney. (Doc. 12, Resp. Ex.
8.) However, Crayton did not allege in his Rule 3.850 motion that his trial counsel should
have moved to suppress Crayton’s statements on the basis that Crayton was never
11
advised of his Miranda rights. A firmly established and regularly followed procedural rule
in Florida provides that an appellate court will not consider a claim raised for the first time
on appeal. See Connor v. State, 979 So. 2d 852, 866 (Fla. 2007) (“This . . . issue was
not raised at the trial level and was not raised in the 3.851 motion. Because the issue
may not be heard for the first time on appeal of a post-conviction motion, we deny relief
on this issue.”) (citing Doyle v. State, 526 So. 2d 909, 911 (Fla. 1988)).
Accordingly, to the extent this ground raises a claim that trial counsel was
ineffective for not seeking suppression of Crayton’s statements on grounds that Crayton
made statements in the patrol car or at other times without benefit of Miranda warnings,
that claim is procedurally defaulted. Because Crayton did not raise this claim in a timely
Rule 3.850 motion, he cannot bring the ineffective assistance claim –– as cause to excuse
his default of a substantive Fifth Amendment claim, or as an independent claim for relief
–– in an untimely, successive Rule 3.850 motion. See Fla. R. Crim. P. 3.850 (b), (h).
Because Crayton “has failed to establish one element of the cause and prejudice
exception, he cannot show the exception applies.” Johnson v. Singletary, 938 F.2d 1166,
1175 (11th Cir. 1991) (citing Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982)).
In reply, Crayton contends that there will be a fundamental miscarriage of justice
if he is not granted an evidentiary hearing on the merits of this claim. (Doc. 42. at 2)
Crayton further asserts that if it “is proven to be true that [he] was interrogated in the back
seat of his vehicle and Miranda was not read to him, then [he] would have made a showing
of cause and prejudice and/or fundamental miscarriage of justice.” (Doc. 42 at 3.)
Crayton has not established cause and prejudice, and he is not entitled to federal review
of this ground through the fundamental miscarriage of justice exception because he does
12
not show that he has new reliable evidence of actual innocence. Schlup, 513 U.S. at 324.
Accordingly, the claim that Crayton was not read his Miranda rights in the patrol car or
never read his rights is procedurally barred from federal review. No evidentiary hearing is
required.
Crayton also contends in this ground that the officer told him to admit the crime
and kept telling him that everyone makes mistakes. (Doc. 6 at 9.) Crayton further alleges
that the arresting officer made the same statements while interrogating Crayton at the
police station. (Id.) These claims are also unexhausted and are now procedurally barred
because Crayton did not raise the federal nature of these claims at trial and on direct
appeal. He cannot raise these claims in an untimely, second appeal. Crayton has not
shown cause to excuse the default and actual prejudice. Furthermore, he has not shown
that he is entitled to review of these claims in this ground under the fundamental
miscarriage of justice exception. Accordingly, these allegations are also procedurally
barred from federal review.
As stated above, Crayton cites his 2006 Rule 3.850 motion, in which he alleged
that his counsel should have moved to suppress his statement on grounds that Crayton
requested a lawyer be appointed after the officer insisted that the victims were telling the
truth. (Doc. 6 at 19, Doc. 12, Resp. Ex. 6.) To the extent this ground were construed to
include that claim of ineffective assistance of counsel, Crayton is not entitled to relief. The
state trial court denied the ineffective assistance claim as follows:
Defendant alleges counsel was ineffective for failing to have
defendant’s out of court statements suppressed. Defendant alleges he
requested counsel while being interrogated; therefore a motion to suppress
should have been filed. A motion in limine regarding a taped interview with
the defendant was discussed prior to trial. Based on that discussion, it is
clear that the defendant was not in custody during any of the times
13
defendant was questioned or when he made the alleged confession. See
Exhibit D: Trial transcript, pages 18-22. Unless a defendant is subjected
to custodial interrogation, he is not entitled to counsel. Pardon v. State, 930
So. 2d 700 (Fla. 4th DCA 2006). Additionally, defendant does not state that
he ever informed counsel of his request.
(Doc. 12, Resp. Ex. 7 at 2.) The per curiam affirmance of that decision constitutes an
adjudication of the claim of ineffective assistance of counsel on the merits.
In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court extended
Miranda's declaration of a custodial suspect's right to counsel by holding that, after the
suspect has invoked his right to counsel, the police may not reinitiate questioning without
counsel present, unless the suspect initiates further questioning. Id. at 484–85. Because
the presence of both a custodial setting and official interrogation is required to trigger the
Miranda right-to-counsel warnings, absent one or the other, Miranda is not implicated.
See Miranda, 384 U.S. at 477-78.
The state trial court reasonably determined from record excerpts that Crayton was
not in custody when he made statements to the officer.8 During a hearing on motions in
limine, the prosecutor advised the state trial court that the officer had asked Crayton to
come to the police department, where Crayton denied the allegations involving J.H. in a
video-taped interview of Crayton. (Doc. 12, Resp. Ex. 7, attach. D, T 20.) Because
Crayton denied committing the offense, the prosecutor did not seek admission of that
taped interview. (Id.) However, the prosecutor advised that there would be testimony
that Crayton had called the officer the next day and several days later, Crayton called the
officer and during the conversation, Crayton admitted he committed the offense against
8
Although the direct appeal record is listed as an exhibit in the appendix to the Respondent’s first response,
the record was not provided. (Doc. 12.) However, record excerpts from the transcript are attached to the
order denying Crayton’s Rule 3.850 motion. (Doc. 12, Resp. Ex. 7, attach. D.)
14
J.H. (Doc. 12, Resp. Ex. 7, attach. D, T 20-21.) Further, the officer asked Crayton to
come to the department the next day and that Crayton said he had to go to church and
would be in the next day but did not appear. (Id. at T 22.) The excerpted portions of this
proceeding support the conclusion that Crayton was not in custody when he was
interviewed at the police station or when the officer later spoke with him by phone.
Moreover, Crayton’s Rule 3.850 motion did not allege and show that he was in custody
when he was interviewed at the police station or when he subsequently spoke with the
officer by phone. Nor did Crayton in his Rule 3.850 motion allege and show that after the
phone conversation, he was interrogated while in custody in violation of his right to
counsel. Accordingly, Crayton failed to show any deficiency in counsel’s performance in
not moving to suppress his statements to the officer on grounds that Crayton requested
counsel while being interrogated. The state decision on Crayton’s claim of ineffective
assistance of counsel is not contrary to, nor an unreasonable application of, Strickland,
and the state decision does not involve an unreasonable determination of the facts in light
of the evidence. Accordingly, Ground One is denied.
Ground Two
Crayton alleges that Officer Gracy “made illegal phone calls” to Crayton’s house
when the officer was with a coworker of Crayton. (Doc. 6 at 7.) Crayton asserts that the
officer did not obtain a court order “to make the call.” (Id.) Crayton contends that the
state trial judge “would not allow this into evidence, so the jury never heard about it.” (Id.)
This ground does not state a violation of a federal constitutional right. See § 2254(a).
Even if this ground were interpreted to raise a federal claim, Crayton did not
present to the state courts the federal nature of this ground at trial and on direct appeal.
15
Accordingly, this ground is unexhausted. Crayton states that he raised this ground in his
Rule 3.850 motion that was denied by order rendered December 4, 2007. (Doc. 6 at 7,
Doc. 12, Resp. Exs. 11, 12.) Crayton alleged in his 2007 Rule 3.850 motion that his trial
counsel rendered ineffective assistance by failing to call Stephen Mosser. According to
Crayton, Mosser would have testified that the arresting officer recorded a phone
conversation with Crayton. (Doc. 12, Resp. Ex. 11, R 33). Crayton further alleged that
the officer made controlled phone calls and that the officer through Mosser made a
controlled phone call to Crayton at Crayton’s home. (Doc. 12, Resp. Ex. 11, R 45.)
However, Crayton’s Rule 3.850 motion did not raise a constitutional claim of trial court
error for refusing to allow evidence of illegal phone calls by the officer to Crayton.
Because this ground could have been raised as a federal claim at trial and on direct
appeal, it is procedurally barred under Florida law. Crayton cannot raise this ground in
an untimely, successive direct appeal.
Crayton has not alleged and established cause and prejudice to overcome the
procedural default of this ground. Crayton’s counsel argues that a miscarriage of justice
has occurred since Crayton is asserting his actual innocence. (Doc. 42 at 3.) However,
counsel candidly points out that counsel has no further legal argument in support of this
claim. (Id.) Crayton has no new reliable evidence of actual innocence. Schlup, 513 U.S.
at 324. Ground Two is procedurally barred from review.
Ground Three
Crayton alleges that the state trial judge “viewed porn” during Crayton’s two-day
trial. (Doc. 6 at 8.) Crayton contends that he found in his trial transcripts “where Judge
Downey was looking at porn” during Crayton’s trial. (Id.) Crayton does not state a federal
16
constitutional claim in this ground. Crayton asserts that he “found” this ground “later with
newly discovered evidence.” (Doc. 6 at 9.)
A claim of newly discovered evidence,
standing alone, provides no basis for habeas relief. See Townsend v. Sain, 372 U.S.
293, 317 (1963) (“the existence merely of newly discovered evidence relevant to the guilt
of a state prisoner is not a ground for relief on federal habeas corpus.”), overruled in part
on other grounds, Keeney v. Tamayo–Reyes, 504 U.S. 1 (1992). This ground does not
state a constitutional claim. Accordingly, this ground is not cognizable on federal habeas
review.
Even if this ground were construed to raise a constitutional claim, this ground is
procedurally defaulted because Crayton did not raise this ground as a federal claim in a
timely Rule 3.850 motion. In his April 5, 2013, Rule 3.850 motion, Crayton raised a claim
that the state trial judge viewed pornography during Crayton’s trial. (Doc. 12, Resp. Ex.
26.) Crayton asserted that the state judge admitted that he viewed pornographic websites
in chambers and on the bench from 2002 through 2005. (Id.) Crayton further alleged
that the Sixth Amendment right to a jury trial provides an accused a safeguard against a
biased or eccentric judge. (Id.) The state trial court applied Rule 3.850(b)’s two year time
limitation in dismissing Crayton’s Rule 3.850 motion, holding that Crayton’s motion was
untimely filed. (Doc. 12, Resp. Ex. 27 at 1.) The state trial court further found that despite
Crayton’s allegation of newly discovered evidence, his Rule 3.850 motion was still
untimely. (Doc. 12, Resp. Ex. 27 at 2.) Rule 3.850(b) provides that no other motion shall
be filed or considered pursuant to the rule if filed more than 2 years after the judgment
and sentence become final unless it alleges that “(1) the facts on which the claim is
predicated were unknown to the movant or the movant's attorney and could not have
17
been ascertained by the exercise of due diligence, and the claim is made within 2 years
of the time the new facts were or could have been discovered with the exercise of due
diligence.” Fla. R. Crim. P. 3.850(b)(1). The state trial court found that Judge Downey’s
conduct was the subject of much attention when it was revealed in 2005 and that the state
judge was publicly reprimanded in 2006. Given the amount of publicity on the matter, the
state trial court concluded that Crayton could have discovered it with the exercise of due
diligence in 2006. (Doc. 12, Resp. Ex. 27 at 2.)
The per curiam affirmance of the trial court’s procedural ruling is presumed to rest
on the same ground. (Doc. 12, Resp. Ex. 9.) See Ylst v. Nunnemaker, 501 U.S. 797,
803 (1991) ("[W]here, as here, the last reasoned opinion on the claim explicitly imposes
a procedural default, we will presume that a later decision rejecting the claim did not
silently disregard that bar and consider the merits."). The state trial court’s ruling rested
on an independent and adequate state ground that precludes federal habeas
consideration of this ground.
Federal habeas courts reviewing convictions from state courts will not consider
claims that a state court refused to hear based on an adequate and independent state
procedural ground." Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). State rules count as
"adequate" if they are "firmly established and regularly followed." Johnson v. Lee, 136 S.
Ct. 1802, 1804 (2016) (quoting Walker v. Martin, 562 U.S. 307, 316 (2011) (internal
quotation marks omitted)). These requirements are met here. See Whiddon v. Dugger,
894 F.2d 1266, 1266–68 (11th Cir. 1990) (holding that the procedural requirements of
Rule 3.850 constitute an independent and adequate state ground for denying habeas
relief). Because Crayton did not raise his claim as a federal claim in a timely Rule 3.850
18
motion, it is now procedurally barred. Any future attempt to raise this ground as a
constitutional claim in another Rule 3.850 motion would be subject to dismissal as
untimely and successive. See Fla. R. Crim. P. 3.850(b), (h).
Crayton does not make any of the requisite showings to excuse his default.
Crayton’s counsel requests a hearing to determine whether the state judge viewed
pornography during the course of Crayton’s trial. (Doc. 42 at 3.) Crayton asserts that the
fact that the judge was viewing pornography was something that he could not have known
at the time of trial. (Doc. 42 at 5.) Crayton fails, however, to show cause for his failure to
raise this ground within two years of the time when the facts could have been discovered
with diligence. Fla. R. Crim. P. 3.850(b)(1). Before retaining habeas counsel, Crayton
furnished one page of the trial transcript, which shows that before a recess during trial,
the state court judge stated, “You can all carry on while I’m still sitting here. I need to
clear out my computer and then I’ll be leaving the bench. (Doc. 15-2 at 2.) This record
extract does not show the reason that the state judge had to clear the computer.
Nevertheless, information about the state judge’s conduct was publicly available a
number of years before Crayton filed his 2013 Rule 3.850 motion. Crayton has provided
a May 27, 2006, newspaper article concerning the state trial judge (Doc. 17-1 at 31-32)
and an article recounting the public reprimand. (Doc. 17-1 at 33-34.) Crayton does not
show cause for his failure to raise this ground within the two-year time limit provided by
Rule 3.850(b)(1).
Crayton also fails to show actual prejudice. Crayton, in his amended petition, asks
this Court to find that the state trial judge “habitually trolled and watched pornographic
websites” during his trial. (Doc. 6 at 21) He alleges that the state judge prohibited him
19
from cross-examining officer Gracy; the state judge “never gave” Crayton a Faretta9
hearing; and the state judge was biased against Crayton, “in favor of Largo Police.” (Doc.
6 at 21.) Although Crayton’s counsel states that he can point out at an evidentiary hearing
instances where the judge was distracted and made rulings on evidentiary issues that
were erroneous, he provides no specifics. (Doc. 42 at 5.) Even if, however, the amended
petition were construed to raise these allegations to show prejudice, Crayton’s conclusory
allegations are insufficient to show that the judge’s alleged conduct in Crayton’s case
“worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions." Frady, 456 U.S. at 170.10
Crayton cannot show that a fundamental miscarriage of justice would result if this
ground is not addressed.
He has no new reliable evidence of actual innocence.
Accordingly, Ground Three is barred from federal review.
Ground Four
Crayton alleges that one of his witnesses signed an affidavit stating that she was
with him and that “none of the allegation ever happened.” (Doc. 6 at 10.) He contends
that he did not get the signed affidavit “until ten years later.” (Id.) No specifics are alleged
in the amended petition.
9
Faretta v. California, 422 U.S. 806 (1975).
10
Crayton’s habeas counsel does not assert that these claims are independent claims for relief. Moreover,
these claims are conclusory, failing to show an entitlement to relief. See Tejada v. Dugger, 941 F.2d 1551,
1559 (11th Cir. 1991) (conclusory or speculative allegations do not warrant federal habeas relief).
Furthermore, the amended petition does not raise a federal constitutional claim as to the state court’s rulings
on matters for cross-examination. Nor does the amended petition raise the allegation that the judge was
biased as a federal constitutional claim. Additionally, Crayton did not raise at trial and on direct appeal the
constitutional dimension of the claim that the judge was biased in favor of police. Any further attempt to
raise this claim would be futile, as he cannot raise this claim in an untimely, second appeal. The Faretta
claim is also procedurally defaulted because Crayton did not raise the claim at sentencing and on direct
appeal, as shown infra.
20
Before Crayton’s counsel and the Respondent addressed Crayton’s grounds for
relief, Crayton furnished a purported statement of Lizette Sepulveda dated August 6,
2011. (Doc. 15-2 at 32-39.) Crayton asserted in a pro se reply that Sepulveda was with
him “the whole time” the alleged crimes took place. (Doc. 15 at 15.) According to Crayton,
Sepulveda would have testified that nothing ever happened between Crayton and A.L. or
J.H., the victims alleged in counts two and four of the charging document. (Id.) Even
taking into consideration these allegations, this ground does not state a cognizable claim
for habeas relief.
The Supreme Court has “not resolved whether a prisoner may be entitled to
habeas relief based on a freestanding claim of actual innocence.” McQuiggin v. Perkins,
133 S. Ct. 1924, 1931 (2013) (citing Herrera v. Collins, 506 U.S. 390, 404–405). See
also Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002) (“The Supreme Court has
held that ‘[c]laims of actual innocence based on newly discovered evidence have never
been held to state a ground for federal habeas relief absent an independent constitutional
violation occurring in the underlying state criminal proceeding.’”) (quoting Herrera, 506
U.S. at 400)). See also Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1356 (11th Cir.
2007) (“[O]ur precedent forbids granting habeas relief based upon a claim of actual
innocence. . . in non-capital cases).
Crayton does not assert an independent
constitutional violation. Therefore, this ground does not present a cognizable ground for
federal habeas relief.
Were a freestanding claim of actual innocence cognizable on habeas review,
Crayton has failed to demonstrate that he is actually innocent of the offenses. “An actualinnocence claim must be supported ‘with new reliable evidence — whether it be
21
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence — that was not presented at trial.’” Milton v. Sec'y, Dep't of Corr., 347 Fed.
App’x. 528, 530-31 (11th Cir. 2009) (quoting Schlup, 513 U.S. at 324)). To meet the
“‘threshold showing of innocence’ justifying ‘a review of the merits of the constitutional
claims,’ the new evidence must raise ‘sufficient doubt about [the petitioner's] guilt to
undermine confidence in the result of the trial.’” Milton, 347 Fed. App’x. at 531 (quoting
Schlup, 513 U.S. at 317).
Sepulveda’s purported statement is not new evidence. The offenses were alleged
to have occurred in 2000 (Doc. 12, Resp. Ex. 7, Ex. A), and the statement purportedly
written by Sepulveda is dated some eleven years later. (Doc. 15-2 at 23-39.) The identity
of the alleged witness and her information were known to Crayton when he proceeded to
trial, as he contends that she was with him the “whole time the allege[d] crime took place.”
(Doc. 15 at 15.) Crayton’s submission of an affidavit from Sepulveda years later does not
constitute new evidence of actual innocence of either of the offenses for which Crayton
is imprisoned.
Moreover, Crayton has no reliable evidence of actual innocence. In his second
Rule 3.850 motion (filed before Crayton secured the statement attributed to Sepulveda),
Crayton alleged that Sepulveda would have testified that she was with Crayton when
victims J.H. and A.L. said that they had sex with Crayton. (Doc. 12, Resp. Ex. 11, R 15,
17, 21.) Crayton testified at the state evidentiary hearing held on his Rule 3.850 motion
that Sepulveda would have testified to Crayton’s version that: J.H. said she had to use
the bathroom; he unlocked the bathroom, and when J.H. was still inside, he told J.H. to
come out and told Sepulveda to hold the door; when he checked, the door was closed;
22
the next thing he knew, one of his staff members was talking with Sepulveda; and J.H.
came out of the bathroom. (Doc. 12, Resp. Ex. 15, R 220.) However, Sepulveda did not
testify at the state evidentiary hearing, and trial counsel testified that he did not believe
Sepulveda was a good witness. Counsel explained that Sepulveda testified in deposition
that Crayton was inside the bathroom with J.H. for approximately ten minutes. (Doc. 12,
Resp. Ex. 15, R 236.).11
Crayton fails to show that the alleged witness would provide a trustworthy
eyewitness account that Crayton did not commit the sexual activity and sexual
misconduct offenses for which he stands convicted. Crayton persists in his assertion that
the alleged witness was with him the whole time and that nothing ever happened. (Doc.
17 at 4.) However, the statement attributed to Sepulveda does not include an assertion
that she was with Crayton when the offenses were alleged to have occurred. (Doc. 15-2
at 32-39.) Crayton fails to present new reliable evidence that demonstrates it is more
likely than not that no reasonable juror would have convicted him. Accordingly, even if
this ground were cognizable, it does not warrant relief. Ground Four is denied.
Ground Five
Crayton alleges that he was not afforded a Faretta hearing at his sentencing. (Doc.
6 at 20.) This ground was not properly exhausted and is procedurally defaulted because
Crayton did not raise this ground at sentencing and on direct appeal.
Crayton raised this ground in his 2006 Rule 3.850 motion. (Doc. 12, Resp. Ex. 6.)
The state trial court denied relief on the basis that an issue of trial court error should have
11
. On post-conviction appeal, Crayton’s appellate counsel did not raise the issue, noted that there was no
evidence adduced to support Crayton’s assertion that Sepulveda could provide an alibi for Crayton as to
one of the offenses. (Doc. 12, Resp. Ex. 17 at p. 22, n. 2.)
23
been raised on direct appeal. (Resp. Ex. 7 at 3.) The per curiam affirmance of that
procedural ruling is presumed to rest on the same ground. (Doc. 12, Resp. Ex. 9.) Ylst,
501 U.S. at 803. The state trial court’s refusal to consider Crayton’s ground rested on an
independent and adequate state ground that precludes federal habeas consideration of
this issue.
Florida courts routinely observe the rule that issues appropriate for direct appeal
are not cognizable in a post-conviction motion. See Fla. R. Crim. P. 3.850(c); LeCroy v.
Sec'y, Fla. Dep't of Corr., 421 F.3d 1237, 1260 (11th Cir. 2005) (holding that where the
state prisoner did not raise on direct appeal a claim that the judge’s statement violated
the constitution, the Rule 3.850 court's refusal to consider the claim because it was
procedurally barred rested on an independent and adequate state ground that precludes
federal habeas consideration of this issue.). See e.g., Downs v. State, 740 So. 2d 506,
509, n. 5 (Fla. 1999) (holding that claim that trial court failed to conduct adequate inquiry
under Faretta should be raised on direct appeal.).
Crayton’s counsel addresses this ground but does not assert that this ground is
exhausted and not procedurally defaulted.12 (Doc. 42 at 7-9.) Crayton does not establish
make any of the requisite showings to overcome his default. Accordingly, Ground Five is
procedurally barred from federal habeas review.
12
Crayton asserted in a state habeas petition filed September 17, 2007, that the state trial court failed to
hold a Faretta hearing at Crayton’s sentencing. (Doc. 12, Resp. Ex. 21.) Upon transfer of the petition by
the state appellate court to the state trial court, the petition was dismissed by order rendered February 12,
2008, according to the state court docket. (Doc. 12, Resp. Exs. 22, 23 at 6.) Although Respondent does
not provide the order, Crayton’s counsel does not assert that the state trial court found that this ground was
cognizable in a state habeas petition. Nor does Crayton contend that he appealed the ruling.
24
Ground Six
Crayton alleges that he was not placed under oath when asked about his decision
to testify, making his trial testimony “questionable.” (Doc. 6 at 23.) This ground does not
present a cognizable claim for federal habeas review. See 28 U.S.C. § 2254(a). Crayton
does not state a federal constitutional claim.
Were this ground construed to raise a federal claim, Crayton has not presented
the state courts the federal nature of this ground. Accordingly, it is unexhausted, and it
is procedurally barred because Crayton did not raise this ground as a constitutional claim
at trial and on direct appeal. He cannot raise this ground as a federal claim in an untimely,
second direct appeal.
Crayton does not make any of the requisite showings to overcome his default.
Accordingly, Ground Six is procedurally barred from federal review.
Any claims not specifically addressed in this Order have been determined to be
without merit.
CONCLUSION
The Respondent’s motion to dismiss the petition as untimely is DENIED. (Doc. 10.)
The amended petition for the writ of habeas corpus is DENIED. (Doc. 6.) Crayton’s
request for a hearing on the timeliness of the petition or, in the alternative, a hearing on
the merits of the petition is DENIED as moot. (Doc. 29 at 6.) Crayton’s request for an
evidentiary hearing is DENIED as moot. (Doc. 42 at 9.) The Clerk is directed to enter a
judgment against Crayton and to CLOSE this case.
25
DENIAL OF A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
IT IS FURTHER ORDERED that Crayton is not entitled to a certificate of
appealability (“COA”). A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1).
Rather, a district court must first issue a COA. Section 2253(c)(2) limits the issuing of a
COA “only if the applicant has made a substantial showing of the denial of a constitutional
right.” To merit a certificate of appealability, Crayton must show that reasonable jurists
would find debatable both the merits of the underlying claims and the procedural issues.
See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.
Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable
jurists would debate the procedural issues and the merits of the claims, Crayton is not
entitled to a certificate of appealability, and he is not entitled to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma
pauperis is DENIED. Crayton must obtain permission from the circuit court to appeal in
forma pauperis.
DONE AND ORDERED in Tampa, Florida, on September 28, 2017.
Copies furnished to counsel of record
26
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