WALLACE v. MCCOLLUM
ORDER adopting 37 Report and Recommendation. Signed by SENIOR JUDGE MAURICE M PAUL on 3/20/2014. The petition for writ of habeas corpus is denied, and no certificate of appealability is appropriate in this case. (kdm)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
DEMETRIUS A WALLACE,
CASE NO. 1:10-cv-00200-MP-GRJ
SECRETARY DEPT OF CORRECTIONS,
This cause comes on for consideration upon the Magistrate Judge's Report and
Recommendation. (Doc. 37). The parties have been furnished a copy of the Report and
Recommendation and have been afforded an opportunity to file objections pursuant to Title 28,
United States Code, Section 636(b)(1). The petitioner objected at Doc. 42, and the Court has
conducted a de novo review of the objected to issued. For the reasons given below the Report
and Recommendation is accepted and the habeas petition denied.
Mr. Wallace was convicted in Florida state court of both possession of cocaine and sale
of cocaine involving the same transaction. Petitioner filed a habeas petition, raising five claims.
First, he claimed the trial court erred in declining to declare a mistrial. The Court agrees with
the Magistrate Judge that petitioner failed to present this issue to the state courts as a federal
constitutional issue, and thus he has failed to exhaust that claim. The Court finds that petitioner
has not offered sufficient cause and prejudice for the default.
Second, the undersigned agrees that the Eleventh Circuit has expressly foreclosed his
second through fourth claims because it ruled that Florida's controlled-substance statutes under
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which petition was convicted are not strict liability crimes and therefore are not unconstitutional.
Shelton v. Sec'y, Dep't of Corr., 691 F.3d 1348 (11th Cir. 2012).
Finally, the petitioner's fifth claim argues that the two convictions stemming from one
transaction violated double jeopardy. The Magistrate Judge is correct in recommending that
petitioner's conviction for sale and also possession of the same quantum of cocaine does not
violate double jeopardy because the elements of the two offenses under state law are not
identical: situations existed where sale could occur without possession, so that possession was
not essential element of sale. The Florida Supreme Court made this exact ruling in State v.
McCloud, 577 So.2d 939 (Fla.,1991).
In his objections, the petitioner makes the same argument made by Justice Barkett in her
dissent in State v. McCloud. However, that argument was expressly rejected by the majority of
that Court. He also relies upon Valdes v. State, 3 So.3d 1067 (Fla., 2009), but that case is not
applicable because it held that "the only offenses that [would not be separate offenses] under
subsection (4)(b)(2) are those that constitute different degrees of the same offense, as explicitly
set forth in the relevant statutory sections." Id. at 1077. There are no different degrees set forth
explicitly in the statutory sections involved in this case.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
The magistrate judge’s Report and Recommendation is adopted and incorporated
by reference in this order.
The petition for writ of habeas corpus is denied, and no certificate of appealability
is appropriate in this case.
DONE AND ORDERED this 20th day of March, 2014
s/Maurice M. Paul
Maurice M. Paul, Senior District Judge
Case No: 1:10-cv-00200-MP-GRJ
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