Bogins v. Sec'y, Florida Dep't of Corr.

• Decision Date: 14 August 2012
• Docket Number: Case No. 3:09-cv-572-J-34MCR
• Parties: JOHN ANTHONY BOGINS, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

JOHN ANTHONY BOGINS, Petitioner,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:09-cv-572-J-34MCR

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

Dated: August 14, 2012

ORDER

I. Status

Petitioner Bogins initiated this action by filing a pro se Petition for Writ of Habeas Corpus (Petition) (Doc. #1) under 28 U.S.C. § 2254 on June 15, 2009, pursuant to the mailbox rule. He challenges a 2002 state court (Clay County, Florida) judgment of conviction for sale or delivery of cocaine on twelve grounds. Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Answer in Response to Order to Show Cause (Response) (Doc. #6); Exhibits (Resp. Ex.) (Doc. #7). On July 1, 2009, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. #4), admonishing Petitioner regarding his obligations and giving Petitioner a time frame in which to submit a reply. Petitioner submitted a brief in reply on December 21, 2009. See Petitioner's Response (Reply) (Doc. #9). This case is ripe for review.

II. Procedural History

On February 27, 2002, the State of Florida charged Bogins with sale or delivery of cocaine. Resp. Ex. C at 4, Information. After jury selection, Bogins proceeded to trial. Resp. Ex. D, Transcript of the Jury Trial (Tr.). At the conclusion of the trial, a jury found Bogins guilty of sale or delivery of cocaine. Resp. Ex. C at 122, Verdict; Tr. at 169. On November 6, 2002, the trial court sentenced Bogins, as a habitual felony offender, to a term of thirty years of imprisonment. Id. at 160-65, Judgment.

On appeal, Petitioner, through counsel, filed an Initial Brief, raising two issues: (1) was there substantial competent evidence to submit to the jury, and (2) can the State Attorney file a second notice of intent to classify Petitioner as a habitual felony offender after the trial court denied the first request. Resp. Ex. F. The State filed an Answer Brief. Resp. Ex. G. On December 30, 2003, the appellate court affirmed Petitioner's conviction and sentence per curiam without issuing a written opinion. Bogins v. State, 866 So.2d 1213 (Fla. 1st DCA 2003); Resp. Ex. H. The court denied Petitioner's motion for rehearing on February 16, 2004. Resp. Exs. I; J. The mandate issued on March 3, 2004. Resp. Ex. K. Petitioner did not seek review in the United States Supreme Court.

On April 6, 2004, Petitioner filed a pro se petition for writ of habeas corpus, asserting that appellate counsel failed to raiseon direct appeal the following issue: Petitioner was not formally charged with sale or delivery of cocaine. Resp. Ex. M. The appellate court denied the petition on the merits on May 5, 2004. Resp. Ex. N. On June 17, 2004, the court denied Petitioner's motion for rehearing. Resp. Exs. O; P.

On May 19, 2004, Petitioner filed a pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motion). Resp. Ex. X at 1-75. Petitioner twice amended the motion in 2006. Id. at 133-41, 206-15. In his requests for post conviction relief, Petitioner alleged that his counsel was ineffective because he: failed to properly object, move for a mistrial, and preserve for appeal the issue of the State's bolstering the credibility of its key witness (ground one); failed to challenge the court's jurisdiction when the State never formally arrested him for the crime (ground two); failed to impeach Nellie Quigley, the confidential informant, with deposition testimony about being searched (ground three); failed to depose Joe Purvis (ground four); solicited inadmissible hearsay testimony from the State's key witness and failed to properly object to harmful hearsay testimony and preserve for appellate review (ground five); failed to object to Quigley's in-court identification of Petitioner (ground six); misadvised him regarding the statutory maximum penalty of thirty years imprisonment, thereby causing Petitioner to reject the State's offer of thirteen months (ground seven); failedto inform Petitioner of the possibility of habitualization (ground eight); and failed to exclude the cocaine based on alleged tampering and/or a chain of custody violation (ground nine). Resp. Ex. X at 1-43, 136-41, 209-15.

Additionally, Petitioner filed a pro se motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a) on August 22, 2007. Id. at 373-413. Petitioner also filed a second pro se Rule 3.850 motion on September 11, 2007, asserting that the trial court lacked subject matter jurisdiction to enter the judgment and sentence when the State had filed a deficient Information (ground one), and the State's Information did not properly invoke the court's jurisdiction since it did not include a proper sworn oath (ground two). Id. at 414-38.

The trial court held an evidentiary hearing on August 7, 2007, at which Petitioner's trial counsel (V. Curtis Davidson, II) testified. Id. at 310-72, Transcript of the Evidentiary Hearing (EH Tr.). On November 30, 2007, the court denied the Rule 3.850 motion and amendments (grounds one through eight) and the second Rule 3.850 motion as well as the motion to correct illegal sentence. Id. at 459-79, 449-450, 656.

On December 12, 2007, Petitioner filed notices of appeal. Id. at 647, 649, 651. That same date, Petitioner also filed a motion for rehearing, asserting that the trial court did not resolve ground nine of his post conviction motion. Id. at 653-62. Afterthe appellate court relinquished jurisdiction to the trial court to address ground nine, the trial court denied the motion with respect ground nine on May 1, 2008. Resp. Ex. Z at 1-6.

Petitioner appealed the denial of the Rule 3.800 motion and filed a brief. Resp. Ex. S. The State filed a notice that it would not file an Answer Brief. Resp. Ex. T. On September 24, 2008, the appellate court affirmed the denial per curiam, see Bogins v. State, 991 So.2d 858 (Fla. 1st DCA 2008); Resp. Ex. U, and the mandate issued on October 21, 2008, see Resp. Ex. V.

Petitioner also appealed the denial of his Rule 3.850 motions and filed a brief. Resp. Ex. AA. The State filed an Answer Brief, and Petitioner filed a Reply Brief. Resp. Exs. BB; CC. On March 30, 2009, the appellate court affirmed the denial per curiam, see Bogins v. State, 6 So.3d 54 (Fla. 1st DCA 2009); Resp. Ex. DD, and the mandate issued on April 27, 2009, see Resp. Ex. EE.

III. One-Year Limitations Period

The Petition is timely filed within the one-year period of limitations. See 28 U.S.C. § 2244(d); Response at 17-18.

IV. Evidentiary Hearing

"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted)."It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. The pertinent facts of this case are fully developed in the record before the Court. Because this Court can "adequately assess [Petitioner's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004), an evidentiary hearing will not be conducted.

V. Standard of Review

The Court will analyze Petitioner's claims under 28 U.S.C. § 2254(d). This standard is described as follows:

As explained by the Supreme Court, the phrase "'clearly established Federal law' . . . refers to the holdings . . . of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We have held that to be "contrary to" clearly established federal law, the state court must either (1) apply a rule "that contradicts the governing law set forth by Supreme Court case law," or (2) reach a different result from the Supreme Court "when faced with materially indistinguishable facts." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2003).

As regards the "unreasonable application" prong of § 2254(d)(1), we have held as follows:

A state court decision is an unreasonable application of clearly established law if the state court unreasonably extends or fails toextend a clearly established legal principle to a new context. An application of federal law cannot be considered unreasonable merely because it is, in our judgment, incorrect or erroneous; a state court decision must also be unreasonable. Questions of law and mixed questions of law and fact are reviewed denovo, as is the district court's conclusion regarding the reasonableness of the state court's application of federal law.

Jennings v. McDonough, 490 F.3d 1230, 1236 (11th Cir. 2007) (quotation marks and citations omitted). In sum, "a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409, 120 S.Ct. at 1521. Finally, 28 U.S.C. § 2254(e)(1) commands that for a writ to issue because the state court made an "unreasonable determination of the facts," the petitioner must rebut "the presumption of correctness [of a state court's factual findings] by clear and convincing evidence."[¹ ] 28 U.S.C. § 2254(e)(1).

Ward v. Hall, 592 F.3d 1144, 1155-56 (11th Cir. 2010), cert. denied, 131 S.Ct. 647 (2010).

Finally, for a state court's resolution of a claim to be an adjudication on the merits, so that the state court's determination will be entitled to deference for purposes of federal habeas corpus review under AEDPA, all that is required is a rejection of theclaim on the merits, not an opinion that explains the state court's rationale for such a ruling. Harrington v. Richter, 131 S.Ct. 770, 785 (2011) (holding that ...