Breedlove v. Moore, No. 98-0953-CIV.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtGold
Citation74 F.Supp.2d 1226
Docket NumberNo. 98-0953-CIV.
Decision Date08 September 1999
PartiesMcArthur BREEDLOVE, Petitioner, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent.

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74 F.Supp.2d 1226
McArthur BREEDLOVE, Petitioner,
v.
Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent.
No. 98-0953-CIV.
United States District Court, S.D. Florida.
September 8, 1999.

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Todd G. Scher, Lauderdale, FL, for Petitioner.

Fariba Komeily, Department of Legal Affairs, Miami, FL, for Respondents.

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

GOLD, District Judge.


This case is before the court on McArthur Breedlove's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254. Breedlove was convicted in the Circuit Court for Dade County of first-degree murder, burglary, grand theft and petit theft, and sentenced to death. In the petition for writ of habeas corpus, Breedlove raises thirteen claims of error. The court has analyzed each claim utilizing the procedure set forth in Neelley v. Nagle, 138 F.3d 917 (11th Cir.1998).

I. PROCEDURAL HISTORY

The charges in this case arose from the burglary of a Miami residence during the early morning hours of November 6, 1978, and the murder of one of the occupants of the house, Frank Budnick The jury acquitted McArthur Breedlove of the attempted murder of the second occupant of the house, Carol Meoni, but it convicted him of first-degree felony murder and the underlying felony of burglary, and recommended a death sentence. Following the jury's recommendation, the trial judge sentenced Mr. Breedlove to death based on three aggravating factors: (1) prior convictions for violence; (2) the homicide was committed during a robbery; and (3) the homicide was especially heinous or cruel. The Florida Supreme Court affirmed the conviction and sentence on appeal. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982)(Breedlove I). On November 30, 1982, Breedlove filed his first Rule 3.850 motion for post-conviction relief which raised two issues: (1) the denial of defendant's right to be present during a critical stage of the trial; and (2) the state's alleged suppression of exculpatory impeachment evidence.1 The trial court found that the first issue had been withdrawn in 1989, and the second issue was not persuasive because the state did not have knowledge of the officers' misconduct or, even if it did, the evidence was inadmissible and immaterial. The Supreme Court of Florida affirmed the trial court's ruling. Breedlove v. State, 580 So.2d 605 (Fla.1991)(Breedlove II).

On December 18, 1991, Breedlove filed a second Rule 3.850 motion for post-conviction relief. When the trial court denied that motion, Breedlove again appealed to the Florida Supreme Court. Additionally, he filed a petition for writ of habeas corpus with the Florida Supreme Court and asked for a stay of execution. The Florida Supreme Court issued an opinion on the appeal from the denial of the second motion for post conviction relief and the habeas petition. Breedlove v. Singletary, 595 So.2d 8 (Fla.1992)(Breedlove III). It found that claims 1,2,4 and 6 were procedurally barred, and rejected claims 5 and 7 for guilt-phase ineffective assistance of counsel. The Supreme Court of Florida did, however, remand the case to the trial court on a finding that Breedlove's allegations of ineffective assistance in the penalty phase were sufficient to require an evidentiary hearing. The Supreme Court also stayed Breedlove's pending execution.

After conducting a two-day evidentiary hearing in Dade County Circuit Court, the trial court issued an order denying relief on the penalty phase ineffective assistance of counsel claims. Breedlove appealed that decision. While that appeal was pending, the Breedlove filed a third motion for post-conviction relief based on the then

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recently-decided opinion of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Breedlove argued that under Espinosa, the jury instruction on "heinous, atrocious, and cruel" given at his trial was unconstitutionally vague. The trial judge agreed that under Espinosa, the jury instructions were unconstitutional. It therefore vacated Breedlove's death sentence and granted the defendant a new sentencing hearing. The state appealed. On appeal, the Supreme Court of Florida reversed and reinstated the death sentence, finding the jury instruction error harmless. State v. Breedlove, 655 So.2d 74, 77 (Fla.1995)(Breedlove IV). The Florida Supreme Court then considered Breedlove's pending appeal from the denial of relief following the evidentiary hearing on his trial counsel's ineffectiveness at the penalty phase of his trial. The court affirmed the trial court's denial of relief. Breedlove v. State, 692 So.2d 874 (Fla.1997)(Breedlove V), Rehearing was denied on April 28, 1997.

II. INITIAL CONSIDERATIONS

Breedlove's petition for habeas corpus raises thirteen claims. Prior to addressing these claims, however, the court must determine several preliminary matters including petitioner's assertion that the case is not governed by the AEDPA, the state's argument that the petition is untimely, the appropriate standard of review under the AEDPA, and the circumstances under which an evidentiary hearing is required under the AEDPA.

A. Whether the AEDPA applies to Breedlove's Petition.

Breedlove argues that the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) should not apply to this proceeding because the crimes for which he was convicted were committed prior to the enactment date of the AEDPA. The court is not persuaded by this argument. Petitions for writ of habeas corpus filed after the effective date of the AEDPA are governed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997)(new provisions of chapter 153 apply to habeas petitions filed after the effective date of the Act). It is irrelevant that the crimes were committed before the law was enacted. See Neelley v. Nagle, 138 F.3d 917, 921-22 (11th Cir.1998)(rejecting petitioner's claim that AEDPA is unconstitutional ex-post facto law and holding that AEDPA constitutionally may be applied to habeas cases filed after AEDPA's effective date). Breedlove's petition for federal writ of habeas corpus was filed on April 28, 1998. The AEDPA was signed into law on April 24, 1996. Accordingly, Breedlove's habeas petition was filed after the effective date of the AEDPA and therefore is governed by the new standards for federal habeas corpus as amended by the AEDPA.

B. Timeliness of the Petition.

Among the new provisions imposed by the AEDPA is subsection (d) to 28 U.S.C. § 2244 which provides a one-year limitations period for filing habeas petitions. Subsection (d)(1)(A) states that the limitation period shall run from date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review. The time during which a properly filed application for post-conviction review is pending is not counted toward any limitations period. 28 U.S.C. § 2244(d)(2).

Breedlove's conviction and sentence became final on November 29, 1982. He first round of post conviction claims were denied by Florida Supreme Court on June 25, 1991. Five months and 23 days passed before Breedlove filed his second round of post conviction and habeas claims. The Florida Supreme Court denied relief on April 28, 1997. On April 28, 1998, Breedlove filed this petition. The state argues that the petition is untimely. According to the state, Breedlove should have subtracted from the one-year period the five months and 23 day period of time for which no post-conviction relief was pending. If that period is subtracted out, the

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petition was due on during the first week of November 1997.

In response to the state's assertion, Breedlove argues, persuasively, that Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209 (11th Cir.1998), negates the state's claim that the 5 month 23 day period of inactivity in 1991 should be subtracted from the one-year period of time. Wilcox clearly states that the one-year limitations period established by 28 U.S.C. § 2244(d), "[d]oes not begin to run against any state prisoner prior to the statute's date of enactment." Id. at 1211(quoting Goodman v. United States, 151 F.3d 1335 (11th Cir.1998)). Consequently, because the AEDPA was not enacted until April 24, 1996, the period of inactivity in 1991 should not be counted in the one-year grace period established by subsection (d). See also Gendron v. United States, 154 F.3d 672 (7th Cir.1998)(where state prisoner had properly filed postconviction petition when AEDPA was enacted, the limitations period was tolled until state supreme court denied leave to appeal; district court erred in counting an 18 month period from 1993 to 1994 between conclusion of direct appeal and filing of post-conviction proceedings). Accordingly, Breedlove's petition, filed one year after the Florida Supreme Court's final denial of relief, is timely.

C. Standard of Habeas Review Under § 2254(d) as Amended by the AEDPA.

Under the AEDPA, the federal courts may not grant a writ of habeas corpus on behalf of a person in state custody with respect to any claim adjudicated on the merits by the state court unless the state adjudication:

(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)(1) and (2). Addressing the meaning of these new standards in Neelley v. Nagle, 138 F.3d 917 (11th Cir. 1998), the Eleventh Circuit established a three-step process for district courts to follow in evaluating a habeas petition. Step one requires the district court to "survey the...

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3 practice notes
  • Dean v. Bobbitt, CV 116-036
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • November 4, 2019
    ...Petitioner must also "persuade the [Court] that the proffered evidence would affect the resolution of the claim." Breedlove v. Moore, 74 F. Supp. 2d 1226, 1233 (S.D. Fla. 1999) (citing Bolender v. Singletary, 16 F.3d 1547, 1555 n.9 (11th Cir. 1994)); see also Stephens v. Kemp, 846 F.2d 642,......
  • Davis v. Ward, CV 121-171
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • May 19, 2022
    ...Petitioner must also “persuade the [Court] that the proffered evidence would affect the resolution of the claim.” Breedlove v. Moore, 74 F.Supp.2d 1226, 1233 (S.D. Fla. 1999) (citing Bolender v. Singletary, 16 F.3d 1547, 1555 n.9 (11th Cir. 1994)); see also Stephens v. Kemp, 846 F.2d 642, 6......
  • Leslie v. Johnson, CV 115-130
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • March 15, 2017
    ...Petitioner must still persuade the Court that the proffered evidence would affect the resolution of the claim. See Breedlove v. Moore, 74 F. Supp. 2d 1226, 1233 (S.D. Fla. 1999) (citing Bolender v. Singletary, 16 F.3d 1547, 1555 n.9 (11th Cir. 1994)). Therefore, even if Petitioner can show ......
3 cases
  • Dean v. Bobbitt, CV 116-036
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • November 4, 2019
    ...Petitioner must also "persuade the [Court] that the proffered evidence would affect the resolution of the claim." Breedlove v. Moore, 74 F. Supp. 2d 1226, 1233 (S.D. Fla. 1999) (citing Bolender v. Singletary, 16 F.3d 1547, 1555 n.9 (11th Cir. 1994)); see also Stephens v. Kemp, 846 F.2d 642,......
  • Davis v. Ward, CV 121-171
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • May 19, 2022
    ...Petitioner must also “persuade the [Court] that the proffered evidence would affect the resolution of the claim.” Breedlove v. Moore, 74 F.Supp.2d 1226, 1233 (S.D. Fla. 1999) (citing Bolender v. Singletary, 16 F.3d 1547, 1555 n.9 (11th Cir. 1994)); see also Stephens v. Kemp, 846 F.2d 642, 6......
  • Leslie v. Johnson, CV 115-130
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • March 15, 2017
    ...Petitioner must still persuade the Court that the proffered evidence would affect the resolution of the claim. See Breedlove v. Moore, 74 F. Supp. 2d 1226, 1233 (S.D. Fla. 1999) (citing Bolender v. Singletary, 16 F.3d 1547, 1555 n.9 (11th Cir. 1994)). Therefore, even if Petitioner can show ......

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