Allen v. Jones
| Decision Date | 03 August 2015 |
| Docket Number | Case No.: 4:12cv205/LC/CAS |
| Court | U.S. District Court — Northern District of Florida |
| Parties | HILTON ALLEN, Petitioner, v. JULIE L. JONES, Secretary, Florida Department of Corrections, Respondent. |
On June 28, 2012, Petitioner Hilton Allen, proceeding pro se, filed an amended petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 (doc. 9). Respondent filed an answer and relevant portions of the state court record (doc. 21). Petitioner filed two additional responses (docs. 15 & 18). The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this matter. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons stated herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief, and the amended § 2254 petition should be denied.
In June 2005, Petitioner was charged with sexual battery of a person twelve years of age or older by penetrating her vagina with his fingers without her consent. Petitioner was tried with his nephew, Jack Allen, who was also charged with sexual battery of the same victim. The facts, briefly stated, are on or about the night of May 10, 2005, Petitioner gave Jack Allen and the victim, with whom both defendants were previously acquainted, a ride to a McDonald's restaurant. Petitioner then drove to a secluded country road where the victim testified that Jack Allen indicated that he wanted to have sexual intercourse with her, and she objected. The victim testified that Petitioner got in the back seat of the car, forcibly undressed her, held her down and sexually battered her after which Jack Allen had sexual intercourse with her without her consent. Petitioner testified that he drove the pair in his car on the night of the offense, but did not have any physical contact with the victim. Petitioner testified that he left the car and walked away briefly while the victim and Jack Allen had consensual sexual relations. Jack Allen's defense was consent. After a jury trial, both Petitioner and Jack Allen were convicted on their respective charges. In September 2006, Petitioner was sentenced to seven years incarceration followed by seven years sex offender probation. The trial court also sentenced Petitioner and Jack Allen as multiple perpetrators, thus reclassifying Petitioner's crime from a second degree felony sexual battery to a first degree felony under Florida's multiple perpetrator law. This reclassification resulted in Petitioner being declared a sexual predator. (Ex. A, doc. 21-1, p. 91).
Petitioner's direct appeal was dismissed; however, it was later reinstated as aconsequence of the ineffective assistance of his appellate counsel for failing to respond to an order to show cause concerning the absence of a timely initial brief. (Ex. G, doc. 21-2, p. 134). On August 4, 2008, the First District Court of Appeals reversed and remanded holding that the reclassification of Petitioner's crime from a second degree felony to a first degree felony was improper, but the First DCA did not reach the issue of Petitioner's designation as a sexual predator because he had not filed a timely notice of appeal from the order designating him as such. (Ex. K). The mandate issued August 20. Allen v. State, 986 So. 2d 694 (Fla. 1st DCA 2008). On November 4, 2008, Petitioner, who was not present at the hearing, was re-sentenced to the same length of incarceration and probation, but as a sex offender. Petitioner did not appeal.
In March 2009, while his case was pending on remand, Petitioner filed a state court habeas petition, which he later supplemented and amended. On April 16, 2009, the petition was dismissed. No mandate issued. Allen v. State, 8 So. 3d 463 (Fla. 1st DCA 2009). In August 2009, Petitioner filed a petition for prohibition/mandamus which he later amended. (Ex. R). The petition was denied. (Ex. S). No mandate issued. Allen v. State, 23 So. 3d 111 (Fla. 1st DCA 2009). On December 17, 2009, Petitioner filed a petition for a writ of certiorari in the First DCA. (Ex. U, doc. 21-3, pp. 31-36). The petition was dismissed for failure to comply with a court order. Petitioner sought discretionary review, but the Florida Supreme Court declined to accept jurisdiction. Allen v. State, 49 So. 3d 1266 (Fla. 2010).
In August 2010, Petitioner filed a rule 3.850 motion which was denied with leave to amend (Ex. Z, doc. 21-3, pp. 72-136 & Ex. AA, doc. 21-4, pp. 39-40). After anamendment and several supplemental filings, the postconviction court issued a show cause order directed to the State concerning whether Petitioner should be re-sentenced in light of a claim he raised in his amended 3.850 motion which dealt with his not being present at his re-sentencing in August 2008. (See EE-1 & EE-2, doc. 21-6, pp. 63 & 65-66). Counsel was appointed, and Petitioner was re-sentenced to the same sanctions on May 8, 2012. (Ex. GG, doc. 21-6, pp. 73-84). No final ruling was made on the other claims in Petitioner's amended 3.850 motion, and no appeal was taken. In February 2012, while his collateral proceeding and re-sentencing were underway, Petitioner filed a petition for a writ of certiorari in the First DCA. (Ex. HH). The petition was dismissed as untimely. (Ex. LL). Mandate issued on June 22, 2012. Allen v. State, 96 So. 3d 883 (Fla. 1st DCA 2012).
On April 19, 2012, Petitioner submitted his initial federal habeas petition (doc. 1) for mailing. On June 28, 2012, Petitioner filed an amended petition (doc. 9). The amended petition is now ripe for adjudication.
Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody. Section 2254(d) provides, in pertinent part:
28 U.S.C. § 2254(d). See Williams v. Taylor, 529 U.S. 362 (2000); Gill v. Mecusker, 633 F.3d 1272 (11th Cir. 2011).
If a state prisoner's habeas petition "includes a claim that has been 'adjudicated on the merits in State court proceedings,' § 2254(d), an additional restriction applies." Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). The federal court may not grant relief unless the state court's 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). "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.'" Cullen, 131 S. Ct. at 1398 (). This Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S. Ct. at 1388.
Petitioner states in his first ground for relief that the prosecutor filed a motion inlimine after DNA testing exonerated him as the source of two or more semen samples taken from the victim, thus preventing him from informing the jury about the lack of evidence tying him to the crime. (Doc. 9, p. 4). While Petitioner captions his claim as one of prosecutorial misconduct, he does not allege any specific misconduct or act of bad faith on the part of the prosecutor in his habeas petition, but appears to be making a due process claim. Assuming that Petitioner is making a federal constitutional claim, Respondent argues that the claim is procedurally barred because it was not raised on direct appeal in state court.
Florida statutory law, § 794.022(2), generally prohibits evidence of prior consensual sexual activity between the victim and any person other than the defendant. The record reflects that prior to trial the State moved in limine to prevent the defense from adducing evidence that "the victim had previously engaged in sexual activity with any person other than the Defendants, or that a second, unidentified semen sample was found during the sexual assault examination of the victim." (Ex. A, doc. 21-1, p. 60). The motion also declared that while Petitioner's co-defendant, Jack Allen, was the source of one of the semen samples, "the State will not claim or suggest that Hilton Allen is the source of the second, unidentified semen sample." (Id. at 61). Finally, while acknowledging that consent would likely be an issue at trial, the motion declared that "the prejudicial value of showing the jury that [the victim] may have had sex with someone else substantially outweighs any remote probative value it may have. . . . it will serve no purpose other than to confuse, distract, and mislead the jury from the relevantissues at hand." (Id. at 62). The record indicates that there was a hearing on the motion, after...
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