Behl v. Sec'y, Dept. of Corr., Case No. 8:10-cv-1583-T-17EAJ

• Decision Date: 03 August 2011
• Docket Number: Case No. 8:10-cv-1583-T-17EAJ
• Parties: EDWARD A. BEHL, SR., Petitioner, v. SECRETARY, DEPT. OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

EDWARD A. BEHL, SR., Petitioner, v. SECRETARY, DEPT. OF CORRECTIONS, Respondent.

Case No. 8:10-cv-1583-T-17EAJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: August 3, 2011

ORDER

This cause is before the Court on Edward A. Behl, Sr.'s timely-filed 28 U.S.C. § 2254 petition for writ of habeas corpus. A review of the record demonstrates that, for the following reasons, the petition must be denied.

PROCEDURAL HISTORY

On February 13, 2001, the State Attorney filed a four-count Information charging Behl with two counts sexual battery of a child, a capital felony, and two counts of sexual activity with a child, a first degree felony. (Exh 1: Vol. 1: R 4-5). Later, the State nolle prossed the first count of sexual battery, and orally amended the two counts of sexual activity to two counts of sexual battery on a child by a person in familial or custodial authority. Therefore, the charges became one count of capital sexual battery (Count I), and two counts of sexual battery on a child by a person in familial or custodial authority (Counts II and III).

The case proceeded to a jury trial before the Honorable Nancy Moate Ley, Circuit Judge.Behl was represented by retained counsel, Robert M. Tager, Esquire. On November 22, 2002, the jury found Behl guilty of one count of sexual battery and two counts of sexual battery by a person in familial or custodial authority. (Exh 1: Vol. 1: R 102-104). On November 26, 2002, the court sentenced Behl on the sexual battery count to life imprisonment, with a minimum of twenty-five (25) years. On Counts II and III, the court sentenced Behl to thirty (30) years each, with all sentences to run concurrently. Also, Behl was found to be a sexual predator. (Exh 1: Vol. 1: R 109-115).

Rule 3.800(b) Motions to Correct Illegal Sentence

On November 14, 2003, through appellate counsel, Behl filed in the trial court a motion to correct sentence pursuant to Rule 3.800(b)(2) of the Florida Rules of Criminal Procedure. (Exhibit 2). Behl argued in the motion that the sentencing guidelines scoresheet was incorrectly computed. On November 13, 2003, the trial court issued a written order granting resentencing to correct the error. (Exhibit 3). The matter was set for resentencing on March 19, 2004.

On March 5, 2004, prior to the scheduled hearing, Behl's appellate counsel filed another Rule 3.800(b)(2) motion seeking correction of the sentences. (Exhibit 4). The second motion alleged a violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), based on the imposition of 80 victim injury points on the scoresheet for penetration. In an order dated March 12, 2004, the trial court denied the second motion to correct illegal sentence. (Exhibit 5).

The resentencing hearing on the first motion to correct sentence (inaccurate calculation) took place on March 19, 2004. The court vacated the Judgment and Sentence, reviewed a corrected guidelines scoresheet, and imposed a new judgment and sentence on Counts II and III of 337.5 months in prison on each count, to run concurrently. (Composite Exhibit 6).

Direct Appeal

Behl pursued a direct appeal. Behl's appellate counsel, Assistant Public Defender Allyn M. Giambalvo, filed an initial brief of appellant and cross-appeal of appellee. (Exhibit 7) raising the following four issues:

Issue I

THE PROSECUTOR'S IMPROPER GOLDEN RULE ARGUMENT WARRANTS REVERSAL.

Issue II

APPELLANT COULD NOT BE CONVICTED OF SEXUAL BATTERY UPON A PERSON LESS THAN 12 YEARS OF AGE, BECAUSE THE DATES ALLEGED IN THE INFORMATION ENCOMPASSED A DATE WHEREIN THE VICTIM WOULD HAVE BEEN 12 AND THE JURY RETURNED A GENERAL VERDICT WHICH DIDN'T SPECIFY ON WHAT DATE THEY FOUND THE OFFENSE TO HAVE OCCURRED.

Issue III

APPELLANT ARGUES THAT FLA. STAT. 775.21 IS VIOLATIVE OF PROCEDURAL DUE PROCESS; AND AT PRESENT THERE EXISTS A PRESUMED CONFLICT BETWEEN THE DISTRICT COURTS OF APPEAL AS TO WHETHER 775.21, FLA. STAT. IS VIOLATIVE OF PROCEDURAL DUE PROCESS.

Issue IV

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO CORRECT SENTENCE WHICH ALLEGED THAT APPELLANT'S SENTENCE VIOLATED APPRENDI.

On April 20, 2004, Behl filed a motion to file a supplemental pro se brief containing those issues which he felt should be addressed. (Exhibit 8). Attached to the motion was his proposed supplemental brief. (Exhibit 9). According to the appellate court docket in Case No. 2D03-184, on May 10, 2004, it appears the court denied without prejudice Behl's motion to file asupplement brief.¹ (Exhibit 10). No further mention of the filing of a pro se brief appears in the case progress docket.

The State filed an answer brief and initial brief of cross appellant. (Exhibit 11). The issue on State's cross-appeal was "whether the trial court erred in suppressing the victim's controlled phone calls to Appellant?" Behl's counsel then filed the answer brief of cross-appellee. (Exhibit 12).

On March 16, 2005, in Case No. 2D03-184, the Second District Court of Appeal filed a written opinion affirming Behl's three convictions and sexual offender designation, but reversed and remanded the case for resentencing on one of the two counts of sexual battery by a person in familial or custodial authority. (Exhibit 13). Behl v. State, 898 So. 2d 217 (Fla. 2d DCA 2005). The appellate court determined that Behl's sentences for the sexual battery by a person in familial or custodial authority in Count II or III violated the United States Supreme Court's holding in Blakely v. Washington, 124 S.Ct. 2531 (2004). The mandate issued October 27, 2006. (Exhibit 14).

On Remand

On remand, Behl moved to disqualify Judge Ley. (Exhibit 15). On June 20, 2005, Judge Ley issued an order denying the pro se motion to disqualify, but disqualifying herself on the court's own motion. (Exhibit 16). Behl also filed a motion to consolidate convictions/sentences on the basis of double jeopardy. (Exhibit17). A resentencing hearing was held before the Honorable R. Timothy Peters, Circuit Judge, on August 26, 2005. (Exhibit 18). After correcting a computation error committed by the Second District Court of Appeal, and amending thescoresheet to reduce the victim injury points on Count III to forty (40) points, the court sentenced Behl on Counts II and III to 287.5 months in prison, which is the top of the guidelines range. (Exhibit 19). The court denied Behl's motion to consolidate which presented an alleged double jeopardy violation. (Exh 18 at p. 10).

Behl appealed the resentencing judgment and the denial of his motion to consolidate. He filed a pro se initial brief (Exhibit 20) raising two issues:

Issue I

Appellant's two convictions for Count II and Count III are one-in-the-same offense; hence multiple convictions and punishments violates double jeopardy principles.

Issue II

The trial court's assessment of victim injury points as sentence enhancement without aggravating facts being presented to the jury and determined beyond a reasonable doubt violates the rule expressed in Apprendi v. New Jersey and clarified in Blakely v. Washington.

The State filed its answer brief (Exhibit 21), and Behl filed a reply brief. (Exhibit 22). On May 12, 2006, in Case No. 2D05- 4833, the appellate court filed a per curiam silent affirmance of Behl's resentencing. (Exhibit 23). Behl v. State, 929 So. 2d 1061 (Fla. 2d DCA 2006)[table]. The court issued the mandate June 2, 2006. (Exhibit 24).

Petition Alleging Ineffective Assistance of Appellate Counsel

On October 26, 2006, Behl filed a petition for writ of habeas corpus in the Second District Court of Appeal, pursuant to Fla. R. App. P. 9.141(c). The petition was stricken by the court on November 3, 2006, for exceeding the page limit. (Exhibit 25). Behl filed an amended petitionon January 3, 2007. (Exhibit 26). The amended petition raised seventeen grounds for relief.²On March 15, 2007, in Case No. 2D06-4785, the court issued an order treating the petition as one alleging ineffective assistance of appellate counsel and denied the petition without discussion. (Exhibit 27). Behl v. State, 954 So. 2d 1164 (Fla. 2d DCA 2007)[table]. Behl filed a motion for rehearing (Exhibit 28), which the court denied on April 12, 2007. (Exhibit 29).

Petition for Writ of Habeas Corpus filed in Florida Supreme Court

On March 6, 2007, prior to finality of the habeas proceeding in the Second District Court of Appeal, Behl filed a petition for writ of habeas corpus, with an appendix and memorandum of law, in the Florida Supreme Court. (Exhibit 30). On April 26, 2007, in Case No. SC07-449, the Supreme Court filed an order dismissing the petition as unauthorized pursuant to Baker v. State, 878 So. 2d 1236 (Fla. 2004). (Exhibit 31). Behl v. State, 962 So. 2d 335(Fla. 2007)[table]. Behl filed a motion for rehearing (Exhibit 2), which the court denied on July 10, 2007. (Exhibit 33: Case Docket).

Rule 3.850 Motions for Postconviction Relief

On August 22, 2007, Behl filed a pro se motion for postconviction relief, with attachments, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. (Exhibit 34). Behl raised thirteen grounds for relief:

1. The evidence presented as to Count I was legally insufficient to support a conviction or in the alternative, the State's evidence was so tenuous as to constitute a miscarriage of justice;

2. The evidence presented as to Counts II and III was legally insufficient to support a conviction or, in the alternative, the State's evidence was so tenuousas to constitute a miscarriage of justice;

3. The three charges of sexual activity with a minor are "one-in-the-same offense" and multiple convictions and sentences violate double jeopardy and counsel was ineffective for failing to move for a dismissal or judgment of acquittal;

4. The three charges of sexual activity with a minor are improper as the evidence was legally insufficient to support multiple acts and counsel was ineffective for failing to move for dismissal or a judgment of acquittal;

5. Florida Statutes 794.011(8), is void because it is

...