Anderson v. Sec'y Dep't of Corr.

• Docket Number: 3:22cv2028-LC/MAF
• Decision Date: 30 August 2023
• Parties: ETHAN ANDERSON, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Northern District of Florida

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ETHAN ANDERSON, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

No. 3:22cv2028-LC/MAF

United States District Court, N.D. Florida, Pensacola Division

August 30, 2023

REPORT AND RECOMMENDATION

MARTIN A. FITZPATRICK UNITED STATES MAGISTRATE JUDGE

On February 16, 2022, Petitioner Ethan Anderson, a state inmate represented by counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. He also filed a supporting memorandum. ECF No. 8-1. On July 19, 2022 Respondent filed an answer, with exhibits. ECF No. 10. Petitioner filed a reply on August 26, 2022. ECF No. 13.

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, the undersigned has determined no evidentiary hearing is required for the disposition of this matter. See Rule 8(a), R. Gov § 2254 Cases. For the reasons stated herein, the filings before the Court show Petitioner is not entitled to federal habeas relief, and this § 2254 petition should be denied.

Procedural Background

By third amended information filed December 2, 2015, in Escambia County Circuit Court Case 2015-CF-092, the State of Florida charged Petitioner Ethan Anderson with six counts, in connection with events that occurred on or about January 8 2015:

(1) trafficking in amphetamine or methamphetamine, 28 grams or more, less than 200 grams, a life felony, in violation of sections 893.135(1)(f)1.b., 775.087(1), and 775.087(2)(a) Florida Statutes;

(2) possession of a firearm by a convicted felon, a second degree felony, in violation of sections 790.23(1)(e) and 775.087(2), Florida Statutes;

(3) grand theft of a firearm, a third degree felony, in violation of sections 812.014(1)(a)-(b) and (2)(c)5., Florida Statutes;

(4) resisting an officer without violence, a first degree misdemeanor, contrary to section 843.02, Florida Statutes;

(5) possession of a controlled substance (less than 20 grams of cannabis), a first degree misdemeanor, in violation of sections 893.13(6)(a)-(b), Florida Statutes; and

(6) possession of drug paraphernalia, a first degree misdemeanor, in violation of section 893.147(1), Florida Statutes.

Ex. 2 at 7-8.^[1]Anderson proceeded to a jury trial on December 15, 2015. Ex. 9 at 27-177 (trial transcript). Anderson did not testify at the trial. Id. at 129-32.

The jury found him guilty as charged on Counts 1, 4, 5, and 6. Ex. 7 at 129-30; Ex. 9 at 174-76. On Count 1, trafficking in methamphetamine, the jury specifically found Anderson actually possessed a firearm. Ex. 7 at 129; Ex. 9 at 175. The court proceeded directly to sentencing, Ex. 9 at 177-88, and in a written judgment and sentence rendered December 17, 2015, the judge adjudicated Anderson guilty and sentenced him to a total of forty (40) years in prison, with a minimum mandatory term of ten (10) years, Ex. 2 at 9-16. The State nolle prossed Counts 2 and 3. Ex. 2 at 9; Ex. 9 at 180, 181.

Anderson appealed to the First District Court of Appeal (First DCA), assigned case number 1D15-5915. Ex. 4. Through counsel, he filed an Initial Brief raising one point: “The trial court erred by making comments during sentencing that suggested Appellant's sentence was at least in part the result of his decision to exercise his constitutional rights.” Ex. 12 at i. The State filed an Answer Brief. Ex. 13. Anderson filed a Reply Brief. Ex. 14. On June 26, 2017, a panel of the First DCA, consisting of Judges Wetherell, Osterhaus, and M.K. Thomas, affirmed the conviction and sentence without a written opinion. Ex. 15; Anderson v. State, 227 So.3d 566 (Fla. 1st DCA 2017) (table).

On July 12, 2017, Anderson filed a petition for habeas corpus in the First DCA, alleging ineffective assistance of appellate counsel, assigned case number 1D17-2844. Ex. 17. The State filed a response. Ex. 19. Anderson filed a reply. Ex. 20. On March 15, 2018, a panel of the First DCA, consisting of Judges Wetherell, Rowe, and Jay, denied the petition on the merits, without elaboration. Ex. 21; Anderson v. State, 242 So.3d 1054 (Fla. 1st DCA 2018) (table).

On October 26, 2018, Anderson filed a pro se Motion to Correct Sentencing Error, pursuant to Florida Rule of Criminal Procedure 3.800(a). Ex. 23. In an order rendered December 26, 2018, the state court summarily denied the motion. Ex. 24. In the order, the court also directed the Clerk of Court to correct a scrivener's error on the second page of Anderson's written Judgment and Sentence to reflect the imposition of a 10-year minimum mandatory term due to the possession of a firearm and remove the reference to the imposition of a minimum mandatory term for the drug trafficking offense. Id.; see Ex. 25 (Amended Order of Judgment and Sentence). Anderson appealed to the First DCA, assigned case number 1D19-0681, and he filed an initial brief, Ex. 28. See Exs. 26-27. On July 22, 2019, a panel of the First DCA, consisting of Judges Wolf, Roberts, and Jay, per curiam affirmed the case without a written opinion. Ex. 29; Anderson v. State, 276 So.3d 264 (Fla. 1st DCA 2019) (table). The mandate issued August 19, 2019. Ex. 29.

In the meantime, on September 5, 2018, Anderson filed a pro se Motion for Postconviction Relief, pursuant to Florida Rule of Criminal Procedure 3.850. See Ex. 32; ECF No. 10 at 6. He filed a second Rule 3.850 motion on October 5, 2018. See Ex. 33; ECF No. 10 at 7. By order on March 25, 2019, the state postconviction trial court struck the motions as “insufficiently pled” and allowed time for filing an amended motion. Ex. 34. On May 22, 2019, Anderson filed an amended Rule 3.850 motion. Exs. 3537. By order rendered September 10, 2020, the court summarily denied relief. Ex. 39. Anderson appealed to the First DCA, assigned case number 1D20-3212, and his attorney filed an initial brief. Ex. 40. The State filed an answer brief. Ex. 41. On July 14, 2021, a panel of the First DCA, consisting of Judges Lewis, Osterhaus, and M.K. Thomas, per curiam affirmed the case without a written opinion. Ex. 42; Anderson v. State, 322 So.3d 48 (Fla. 1st DCA 2021) (table). The mandate issued August 11, 2021. Ex. 42.

On February 16, 2022, Anderson's counsel filed his § 2254 petition. ECF No. 1. The petition presents seven grounds, six of which allege ineffective assistance of counsel (IAC):

(1) Trial Court Error - Sentence: “The Petitioner's Due Process rights under the United States Constitution were violated when the state court improperly imposed a sentence that was imposed at least in part the result of his decision to exercise his constitutional rights.” Id. at 5.

(2) IAC - No Motion for Mistrial after Facts not in Evidence: “The Petitioner's right to effective assistance of counsel was violated when counsel failed to move for a mistrial after the State argued facts not in evidence during trial.” Id. at 7.

(3) IAC - No Motion to Suppress: “The Petitioner was denied his constitutional right to effective assistance of counsel when counsel failed to file a motion to suppress” regarding tampered evidence. Id. at 9.

(4) IAC - No Motion for Mistrial after Comment on Right to Remain Silent: “The Petitioner was denied his constitutional right to effective assistance of counsel when counsel failed to move for a mistrial after the State commented on the Petitioner's right to remain silent.” Id. at 11.

(5) IAC - Judgment of Acquittal Motion: “The Petitioner was denied his constitutional right to effective assistance of counsel when counsel failed to argue a legally and facially sufficient motion for judgment of acquittal at the close of the State's case.” Id. at 12.

(6) IAC - Failure to Investigate: “The Petitioner was denied his constitutional right to effective assistance of counsel when counsel failed to investigate the facts surrounding his case before trial, which would have led him to file a motion to suppress.” Id. at 14.

(7) IAC - Inadequate Cross-Examination: “The Petitioner was denied his constitutional right to effective assistance of counsel when counsel failed to adequately cross-examine a key witness for the State and effectively impeach her testimony concerning the Petitioner's possession of a firearm.” Id. at 16.

On July 19, 2022, Respondent filed an answer, with exhibits. ECF No. 10. Petitioner filed a reply on August 26, 2022. ECF No. 13.

Analysis

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:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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). See, e.g., Cullen v Pinholster, 563 U.S. 170, 180-83 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287-88 (11th Cir. 2011). “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, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court's review “is limited to the record that was before the state court that adjudicated the...