Scarborough v. State Of Florida

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE (D.E. 20 ); DENYING PETITION FOR WRIT OF HABEAS CORPUS 28 U.S.C. § 2254 (D.E. 1 ); AND DISMISSING CASE. Signed by Judge Joan A. Lenard on 3/6/2009. (lc2) Modified text on 3/9/2009 (dg).

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 08-21104-CIV-LENARD/WHITE B O O K E R T. SCARBOROUGH, a/k/a B O O K E R T. GREENE, P e t i t io n e r , vs. W A L T E R A. McNEIL, Respondent. ________________________________/ O R D E R ADOPTING REPORT AND RECOMMENDATION OF THE M A G I S T R A T E JUDGE (D.E. 20); DENYING PETITION FOR WRIT OF H A B E A S CORPUS 28 U.S.C. § 2254 (D.E. 1); AND DISMISSING CASE T H I S CAUSE is before the Court on the Report and Recommendation of Magistrate Ju d g e Patrick A. White ("Report," D.E. 23), issued on January 12, 2009. In his Report, M a g is tra te Judge White recommends that the Court deny Petition for Writ of Habeas Corpus P u rsua n t to 28 U.S.C. § 2254 ("Petition," D.E. 1). Petitioner filed Objections to the Report o n February 25, 2009 (D.E. 23). The Court has conducted a de novo review of the Petition, th e Report, the Objections, and the record, and finds as follows: I. T h e Petition and Report of the Magistrate Judge A. B a c k g ro u n d

O n September 3, 2003, Petitioner was charged by information with one count grand th e f t in the third degree (F-03-021965). (See D.E. 16, App. A.) On January 14, 2004, P e titio n e r was also charged by information with one count resisting an officer without

v io le n c e, one count of giving a false name/ID after arrest and one count of grand theft in the th ird degree of a vehicle, one count of burglary of an unoccupied dwelling, one count petit th e f t and one count of burglary with assault or battery.(F-03-035827). (See D.E. 16, App. B.) O n October 16, 2006, Petitioner entered a change of plea. (See D.E. 16, App. E.) Petitioner p le d guilty to all counts in the information of Case Nos. F-03-021965 and F-03-035827. (See D .E . 16, App. C and D.) On November 11, 2006, judgment was entered and Petitioner was s e n te n c ed to several five year prison terms, all of which were to run concurrently, with the s u m total of his plea agreement being confinement of five years in Florida State Prison f o llo w e d by five years probation. (See D.E. 16, App. D.) T h e re a fte r, on May 21, 2007, Petitioner filed a motion to correct sentence pursuant to Rule 3.800, Fla. R. Crim. P. (See D.E. 16, App. F.) Petitioner argued therein that he u n d e rs to o d that his plea deal to be that his five year sentence in Miami-Dade was to run c o n c u rre n t with a fifteen sentence that he was already serving stemming from convictions in Broward County, Florida. (See D.E. 16, App. F.) On May 31, 2007, the trial court denied h is motion and found "[t]he transcript of the plea conclusively refutes the Defendant's a lle g a tio n s ." (D.E. 16, App. G.) On August 17, 2007, Petitioner filed a motion for p o s t-c o n v ic tio n relief pursuant to Rule 3.850, Fla. R. Crim. P. (D.E. 16, App. H.) Petitioner a rg u e d two grounds for relief. (D.E. 16, App. H.) Petitioner again argued that he accepted a plea deal because "Defendant attorney assured Defendant that he will be sentence `c o n c u rre n t' and when the judge said concurrent defendant assumed judge was referring to

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B ro w a rd Co. sentence."' (D.E. 16, App. H.) He further argued that "had he known that he w o u ld n 't be sentenced concurrent [with the Broward sentence] Defendant never would have a c ce p te d or agreed to the plea which Defendant[`s] attorneys assured him will be c o n c u rre n t." [D.E. 26, App. H]. On August 21, 2007, the trial court denied this motion and re f e rre d Petitioner back to its previous Order dated May 31, 2007. (D.E. 16, App. I.) On N o v e m b er 9, 2007, Petitioner filed an appeal with the Third District Court of Appeal. (D.E. 1 6 , App. K.) On February 6, 2008, the Third District Court of Appeal per curiam affirmed. (D .E . 16, App. L.) On February 28, 2008, the Third District denied Scarborough's Motion f o r Rehearing. (D.E. 16, App. M.) On March 18, 2008, the Third District's mandate issued. (D .E . 16, App. M.) On April 15, 2008, Petitioner filed the instant petition for writ of habeas corpus p u rs u a n t to 28 U.S.C. §2254. (D.E. 1.) Petitioner raises three grounds for relief: 1)

in e f fe c tiv e assistance of counsel; 2) the plea was unlawfully induced and coerced, and made n o t fully understanding the consequences of said plea; and 3) the trial court never s u c c e s s f u lly rebutted the Petitioner's claims. B. T h e Report

T h e Magistrate Judge recommends that the Petition be denied because his plea was m a d e knowingly and voluntarily. C. O b j e c ti o n s

In his Objections, Petitioner makes two arguments in opposition to the Report. First,

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h e argues that his trial counsel promised him that his plea to crimes in the Dade County, F lo rid a court would result in a sentence running concurrent with his Broward County, Florida s e n te n c e. Petitioner argues that this constitutes ineffective assistance of counsel. Petitioner d o es not cite to any record evidence in support of this contention regarding his trial counsel's p ro m is e . Second, Petitioner makes the related argument that his plea was not voluntary and k n o w in g because it was made based on this alleged improper promise by his trial counsel. A g a in , Petitioner fails to cite to any evidence in support of his claim but instead simply b a ld ly alleges that his trial counsel made an improper promise. II. D is c u s s io n

" I t is well settled that a voluntary and intelligent plea of guilty made by an accused p e rs o n , who has been advised by competent counsel, may not be collaterally attacked." M a b ry v. Johnson, 467 U.S. 504, 508 (1984). However, if a guilty plea is induced through th re a ts , misrepresentations, or improper promises, the defendant cannot be said to have been f u lly apprised of the consequences of the guilty plea and may therefore challenge the guilty p lea under the Due Process Clause. Mabry v. Johnson, 467 U.S. at 509. Despite Petitioner's c la im s to the contrary, there is absolutely no evidence on the record supporting his claim that th is plea was involuntary or unknowing due to an improper promise by his defense counsel. F irs t, as pointed out by the Magistrate Judge, the transcript of his plea agreement colloquy d e m o n s tra te s that Petitioner's trial counsel did not make any promises that were not o th e rw is e disclosed on the record:

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T H E COURT: Did anybody threaten or force you to get you to pled guilty ? T H E DEFENDANT: No. T H E COURT: Are you doing this freely and voluntarily ? T H E DEFENDANT: Yes. THE COURT: Did anybody promise you anything different than what has b e e n stated here in open court ? T H E DEFENDANT: No. (D .E . 16, App. E at 20). P e titio n e r's conclusory allegations to the contrary are unavailing. Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his petition (in state and federal court), unsupported and unsupportable by anything else c o n ta in e d in the record, to be of probative evidentiary value. See Woodard v. Beto, 447 F.2d 1 0 3 , 104 (5th Cir. 1971)1 (holding that a habeas petitioner must do more than make co n clus o ry assertions to substantiate his challenge to a guilty plea). Thus, "mere conclusory a lle g a t io n s do not raise a constitutional issue in a habeas proceeding." United States v. Jones, 6 1 4 F.2d 80 (5th Cir. 1980). A c c o rd in g ly, it is hereby ORDERED AND ADJUDGED that: 1. T h e Report of Magistrate Judge Patrick A. White (D.E. 20), issued on January

1 2 , 2009, is ADOPTED. 2. T h e Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (D.E. 1),

f ile d on or about April 15, 2008, is DENIED.

Decisions of the United States Court of Appeals for the Fifth Circuit decided prior to September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc). 5

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3. 4.

T h i s case is CLOSED. A ll pending motions not otherwise ruled upon are hereby DENIED as moot.

D O N E AND ORDERED in Chambers at Miami, Florida this 6th day of March, 2009.

_ _ _ _ _______________________ _ _ _ _ _ _ _ _ J O A N A. LENARD U N I T E D STATES DISTRICT JUDGE

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