Baker v. Tucker

• Decision Date: 16 July 2012
• Docket Number: Case No. 3:10cv260/WS/CJK
• Parties: JAMES LONNIE BAKER, JR., Petitioner, v. KENNETH S. TUCKER, Respondent.
• Court: U.S. District Court — Northern District of Florida

JAMES LONNIE BAKER, JR., Petitioner, v. KENNETH S. TUCKER, Respondent.

Case No. 3:10cv260/WS/CJK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

Dated: July 16, 2012

REPORT AND RECOMMENDATION

Before the Court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 1). Respondent filed an answer (doc. 21), submitting relevant portions of the state court record (doc. 22). Petitioner replied. (Doc. 25). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by petitioner, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the Court show that petitioner is not entitled to federal habeas relief, and that the petition should be denied.

BACKGROUND AND PROCEDURAL HISTORY

On July 5, 2007, petitioner was charged with two counts of unlawful sexual activity with a minor (Counts 1 and 2) and one count of contributing to thedelinquency of a child (Count 3), in Santa Rosa County Circuit Court Case Number 07-CF-829. (Doc. 22, Ex. A).¹ Petitioner, represented by counsel, entered into a plea agreement whereby petitioner agreed to plead no contest to felony battery on Counts 1 and 2 (a lesser included offense of unlawful sexual activity with a minor), and to Count 3 as charged. (Ex. B). The plea agreement provided that the State would make the following recommendation as to sentence: that the court withhold the imposition of sentence and place petitioner on probation (with enumerated conditions) for 120 months on Counts 1 and 2 (two consecutive 60-month terms), and a concurrent 12-month term of probation on Count 3. On December 18, 2008, the trial judge accepted petitioner's pleas, adjudicated petitioner guilty of the two felony batteries and of contributing to the delinquency of a child, and sentenced petitioner consistent with the plea agreement. (Ex. C). Petitioner did not appeal.

Less than one month later, on January 6, 2009, an affidavit of violation of probation was filed alleging that petitioner violated Condition 5 of his probation order. (Ex. D). Condition 5 of the probation order provided: "You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your probation/community control." (Ex. C). The affidavit of violation alleged that petitioner violated Condition 5 by committing aggravated battery and felony battery by strangulation against Brenda Odom Lowery. (Ex. D). A violation of probation hearing was held on April 16, 2009. (Ex. E). The court found petitioner guilty of violating his probation by committing the batteries alleged in the affidavit, revoked petitioner's probation and sentenced petitioner to 60 months imprisonment on Count 1, a consecutive 12-month term of imprisonment onCount 2, and a concurrent term of 364 days county jail on Count 3. (Ex. E, p. 204; see also Ex. F). Petitioner appealed, raising one issue: "Appellant Did Not Willfully And Substantially Violate His Probation." (Ex. G). The Florida First District Court of Appeal ("First DCA") per curiam affirmed without written opinion on April 30, 2010. Baker v. State, 34 So. 3d 3 (Fla. 1st DCA 2010) (Table) (copy at Ex. N). The mandate issued May 26, 2010. Id.

Petitioner filed this federal habeas petition on July 20, 2010. (Doc. 1). The petition presents four grounds for relief: (1) "Petitioner Alleging (DOC) for 'Negligence' False Imprisonment and in Violation of Petitioner Due Process Clause of the 14th and 15th Amendment to the U.S. Constitution"; (2) "The Petitioner Did Not Willfully and Substantially Violate His Probation"; (3) "The Judge Abused his Discretion in Allowing the Prosectorial [sic] Misconduct by Disclosing a Fundamental Error that caused the 'Negligence' to False Imprisonment"; and (4) "Negligence False Imprisonment and Violation of the 5th, 6th, 13th, 14th, 15th and Due Process to the U.S. Constitution." (Doc. 1, pp. 4-5). Respondent asserts that petitioner is not entitled to relief on any of his claims, because they are either procedurally defaulted and without merit, or insufficiently pled. (Doc. 21).

EXHAUSTION AND PROCEDURAL DEFAULT

Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all available state court remedies for challenging his conviction, 28 U.S.C. § 2254(b)(1),² thereby giving the state the "'opportunity to pass upon and correct'alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner "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." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and which can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. O'Sullivan, 526 U.S. at 839-40, 848, 119 S. Ct. 1728; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998) (holding that federal habeas courts should enforce applicable state procedural bars even as to claims that were never presented to the state courts). A claim is also considered procedurally defaulted if it was presented in state court and rejected on the independent and adequate state ground of procedural bar or default. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (holding that the independent and adequate state ground doctrine "applies to bar federal habeaswhen a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement."); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001) ("[C]laims that have been held to be procedurally defaulted under state law cannot be addressed by federal courts."); accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1990), rev'd on other grounds, 498 U.S. 308, 111 S. Ct. 731, 112 L.Ed.2d 812 (1991). In the first instance, the federal court must determine whether any future attempt to exhaust state remedies would be futile under the state's procedural default doctrine. Bailey, 172 F.3d at 1303. In the second instance, the federal court must determine whether the state's procedural default ruling rested on adequate state grounds independent of the federal question. See Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989).

A petitioner seeking to overcome a procedural default must show cause and prejudice, or a fundamental miscarriage of justice. Tower, 7 F.3d at 210. "For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McCleskey v. Zant, 499 U.S. 467, 497, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). The miscarriage of justice exception requires the petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 85, 130 L. Ed. 2d 808 (1995). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him." Schlup, 513 U.S. at 327. Further:

a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.

Id.

DISCUSSION

Ground One "Petitioner Alleging (DOC) for 'Negligence' False Imprisonment and in Violation of Petitioner Due Process Clause of the 14th and 15th Amendment to the U.S. Constitution" (doc. 1, p. 4).

Petitioner alleges the following facts in support of this claim: "The State of Florida argued that the issue was not preserved because defendant didn't object to introduction of 'hearsay testimony' even though hearsay testimony is often inadmissible evidence that cannot be legally introduced at trial. The (DOC) had no probable cause to revoke Petitioner's probation." (Doc. 1, p. 4). The Court construes this claim as one that petitioner's probation revocation violated the Due Process Clause of the Fourteenth Amendment because the finding that petitioner violated his probation was based on hearsay. Respondent asserts a procedural default defense, arguing that although petitioner presented a similar state law claim on direct appeal, petitioner never presented a federal due process claim to the state courts and is now procedurally barred from doing so. (Doc. 21, pp. 12-15). Respondent alternatively argues that the claim is without merit.

Petitioner directly appealed the revocation of his probation, arguing that he did not willfully and substantially violate his probation because the only evidence of the violation (committing the batteries) was the hearsay statement of the victim, and Florida law requires more than hearsay to establish a violation of probation. (Ex. G).Petitioner's substantive argument relied exclusively on...