Baldwin v. Sec'y, DOC

• Decision Date: 07 June 2021
• Docket Number: Case No. 2:18-cv-320-JES-NPM
• Parties: KENNETH BALDWIN, Petitioner, v. SECRETARY, DOC, Respondent.
• Court: U.S. District Court — Middle District of Florida

KENNETH BALDWIN, Petitioner, v. SECRETARY, DOC, Respondent.

Case No. 2:18-cv-320-JES-NPM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

June 7, 2021

ORDER OF DISMISSAL

This cause is before the Court for consideration of Kenneth Baldwin's ("Petitioner's") 28 U.S.C. § 2254 petition for writ of habeas corpus. (Doc. 1, filed May 7, 2018). Petitioner challenges the convictions and sentences entered by the Twentieth Judicial Circuit Court in and for Charlotte County, Florida on November 16, 1998 and October 15, 2012. (Id. at 1).

Upon consideration of the state court record and the pleadings filed by both Petitioner and Respondent, the Court concludes that the petition must be dismissed without prejudice as a successive habeas corpus petition.

I. Background and Procedural History

On May 16, 1996, the State of Florida charged Petitioner in a three-count information with first-degree burglary with assault or battery (count one); sexual battery with a deadly weapon or great force (count two); and battery on a person 65 years or older (count three). (Doc. 15-2 at 44-45). On October 6, 1998, Petitioner proceeded to trial on an amended information (id. at 144-45), and a jury found him guilty as charged. (Doc. 15-3 at 28-30). The trial court sentenced Petitioner as a violent habitual felony offender to concurrent terms of life in prison for burglary and sexual battery (counts one and two) and to ten years for battery (count three). (Doc. 15-3 at 93-100). On April 10, 2002, Florida's Second District Court of Appeal ("Second DCA") affirmed Petitioner's convictions and sentences per curiam without a written opinion. (Doc. 15-3 at 293).

On February 4, 2004, Petitioner filed a motion to correct an illegal sentence under Rule 3.800(a) of the Florida Rules of Criminal Procedure ("Rule 3.800 motion"). (Doc. 15-3 at 297-313). Petitioner urged that the trial court had erred by sentencing him as a habitual felony offender and by providing an invalid reason for departing from the sentencing guidelines. (Doc. 15-3 at 298). The trial court denied the Rule 3.800 motion in a written order (Doc. 15-5 at 2-4), and Florida's Second DCA affirmed per curiam. (Doc. 15-5 at 195).

On September 25, 2006, Petitioner filed a 28 U.S.C. § 2254 petition in this court (MDFL Case No. 2:06-cv-513-UA-D_F) challenging his convictions on all counts, but the Court dismissedthe petition with prejudice as time-barred on November 19, 2008. (Doc. 15-5 at 260-65).

On January 4, 2011, Petitioner filed a state petition for writ of habeas corpus. (Doc. 15-6 at 39-45). Petitioner argued that his sentence was illegal because at the time of his convictions, the habitual violent felony offender (HVFO) statute did not apply to life felonies. He also argued that his sentence was illegal because the Florida Supreme Court invalidated the sentencing guidelines for offenses that occurred between October 1, 1995 and May 24, 1997 under Heggs v. State, 759 So. 2d 620 (Fla. 2000). (Id.) In response, the State argued that Petitioner was not entitled to relief on his claims, but agreed that he should be resentenced on count two, the sexual battery with great force life felony (although not de novo):

Although not raised in the motion before the Court, case law suggests that the defendant is entitled to resentencing on count two, the life felony. The Supreme Court in State v. Thompson, 750 So. 2d 643 (Fla. 1999), held that chapter 95-182, Laws of Florida, is unconstitutional as violative of the single subject rule. In so holding, the court found that the imposition of a habitual felony offender sentence may be challenged if the life felony was committed between October 1, 1995, and May 24, 1997. Id. at 649; see alsoCooper v. State, 884 So. 2d 286 (Fla. 2d DCA 2004); Kinsey v. State, 831 So. 2d 1253 (Fla. 2d DCA 2002). While case law suggests that the defendant's habitual offender sentence on count two should be corrected, the length of the sentence is permissible because the courtstated reasons aside from the HVFO designation for the upward departure from the guidelines. (State's Exhibit M, Transcript of Proceedings, pg. 93, line 25-pg. 94, line 12; State's Exhibit F, Scoresheet).

Therefore, the only correction needed in this case is on count two regarding the mandatory/minimum provisions on the judgment and sentence, where the court adjudicated the defendant a HVFO. (State's Exhibit E, Judgment & Sentence). This correction applies only to count two. Count one, the first degree felony punishable by life, should have the HVFO designation, and at resentencing, the court should amend the judgment and sentence so it reflects this correction.

At most, this correction to the judgment and sentence will only have a ministerial impact, as the defendant maintains his HVFO designation on count one and remains obligated to serve a term of natural life in DOC. So while the sentence on count two should be corrected, in effect, there will not be any real impact on the length of time that the defendant will serve in DOC. Since all that is required in this case is a ministerial act of sentence correction, it is not necessary that the defendant be present at the resentencing hearing. Dougherty v. State, 785 So. 2d 1221, 1223 (Fla. 4th DCA in his or her absence .... An exception is made in resentencing cases where all that is required on remand is a ministerial act of sentence correction."); see alsoFrost v. State, 169 So. 2d 443, 444 (Fla. 1st DCA 2000); Williams v. State. 697 So.2d 584 (Fla. 4th DCA 1997).

(Doc. 15-6 at 58). The trial court treated the petition for writ of habeas corpus as a Rule 3.800 motion and directed the clerk to "correct page one of the Defendant's November 16, 1998 judgment and sentence to reflect that burglary with a battery, count one,is a first-degree felony punishable by life imprisonment (i.e., not a life felony)." (Doc. 15-6 at 171). The court also directed the clerk to "forward a copy of the correction to the Florida Department of Corrections." (Id. at 172). The trial court determined that Petitioner was actually entitled to de novo resentencing under the 1994 sentencing guidelines on count two only. (Id.)¹ Thereafter, on April 28, 2011, the clerk entered a corrected judgment noting that count one was amended to reflect that it was a first-degree felony, punishable by life. (Doc. 15-7 at 159). The amendment was specifically entered nunc pro tunc to November 16, 1998—the date of the original sentencing. (Id.)

Petitioner sought rehearing, arguing that, because counts one and two were ordered to run concurrently, and adjudicated as HVFO offenses, both counts needed to be vacated. (Doc. 15-6 at 161-63). The trial court denied the motion, but once again ordered the clerk to correct the judgment and sentences to properly reflect the degree of each count. (Doc. 15-7 at 174). On December 28, 2011, Florida's Second DCA affirmed. (Doc. 15-8 at 230).

The trial court held a resentencing hearing on count two on October 15, 2012 and sentenced Petitioner to 179.5 months on count two, but left everything else the same. (Doc. 15-8 at 181-221).² On appeal, counsel for Petitioner filed an initial brief under Anders v. California, 386 U.S. 738 (1967). (Doc. 15-8 at 234-47). Thereafter, Petitioner filed a pro se brief on appeal, arguing that the re-sentencing court erred by using his HVFO sentence in count one to compute his guideline sentence in count two. (Id. at 254-67). On December 27, 2013, Florida's Second DCA affirmed without a written opinion. (Id. at 269).

On May 14, 2014, Petitioner filed a state petition for writof habeas corpus, arguing that appellate counsel was ineffective for filing an Anders brief and for failing to argue that the 179.5-month sentence he received on re-sentencing was vindictive. (Doc. 15-8 at 283-369). On July 24, 2014, Florida's Second DCA denied the petition without opinion and without ordering the state to respond. (Id. at 393).

On August 12, 2014, Petitioner filed another Rule 3.800 motion, raising four claims of trial court error during his resentencing. (Doc. 15-9 at 2-29). The trial court denied the motion (id. at 217-54) and Florida's Second DCA affirmed. (Id. at 277).

On September 23, 2015, Petitioner filed a motion under Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 motion"). (Doc. 37-1). It was denied on May 18, 2017. (Id. at 302).

On October 19, 2015, while the Rule 3.850 motion was still pending, the State filed a motion to have Petitioner designated as a sexual predator under section 775.21(4)(a) of the Florida Statutes. (Doc. 15-10 at 205). The trial court found that Petitioner qualified as a sexual predator. (Id. at 217).

II. Discussion

Petitioner ultimately attacks the convictions and sentences imposed by the Twentieth Judicial Circuit Court in CharlotteCounty, Florida on October 9, 1998. (Doc. 1). Petitioner already filed a 28 U.S.C. § 2254 petition attacking these same convictions on September 27, 2006, but it was dismissed as untimely. See MDFL Case No. 2:06-cv-513-UA-D_F at docket entry 20. Accordingly, this is a second, or successive petition, and Petitioner does not state that he obtained leave from the Eleventh Circuit to file a successive petition. See 28 U.S.C. § 2244(b)(3)("Before a second or successive application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."); Rule 9, Rules Governing Section 2254 Cases in the United States District Court. Without authorization from the Eleventh Circuit, this Court is without jurisdiction to consider a second or successive petition. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (finding that, because the petitioner "never sought nor received authorization from the Court of Appeals" before filing a successive petition challenging his custody, "the District court was without jurisdiction to entertain it").

Petitioner urges...