Brown v. Fla. Attorney Gen.

• Decision Date: 28 September 2016
• Docket Number: Case No: 2:13-cv-602-FtM-29MRM
• Parties: FREDRICK WYKME BROWN, Petitioner, v. FLORIDA ATTORNEY GENERAL, Respondent.
• Court: U.S. District Court — Middle District of Florida

FREDRICK WYKME BROWN, Petitioner, v. FLORIDA ATTORNEY GENERAL, Respondent.

Case No: 2:13-cv-602-FtM-29MRM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

September 28, 2016

OPINION AND ORDER

This matter comes before the Court upon review of the file. Petitioner Fredrick Wykme Brown ("Petitioner" or "Brown"), initiated this action by filing a pro se 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (Doc. #1, "Petition") on August 19, 2013.¹ Pursuant to the Court's Order to respond and show cause why the Petition should not be granted (Doc. #10), Respondent fileda Response (Doc. #19, Response). Respondent asserts that the Court should not address the merits of the Petition because the Petition is time barred under 28 U.S.C. § 2244(d).² Recognizingthat the action may be considered timely, if the Court finds Petitioner's appeal was "properly filed," Respondent addresses the merits of each of the seven grounds for relief raised in the Petition. Respondent submits exhibits (Exhs. 1-29) in support of the Response. See Appendix of Exhibits (Doc. #21-1). Petitioner filed a reply to the Response (Doc. #2, Reply). This matter is ripe for review.

I. The Petition is Timely Filed

Brown challenges his 2007 trial-based judgment of robbery with a firearm causing death and second degree murder with a firearm entered in the Twentieth Judicial Circuit Court, Lee County, Florida (case number 06-CF-16972). Petition at 1; Response at 1. Brown was sentenced to forty years imprisonment on both counts with a minimum mandatory term of twenty-five years on both counts to run concurrently. Response at 3; Exh. 1a at 50. Brown's sentences and conviction were per curiam affirmed on direct appeal on April 25, 2008. Exh. 4. Consequently, Brown's state conviction became final on Thursday, July 23, 2008. See 28 U.S.C. § 2244(d)(1)(A) and Rule of the Supreme Court of the United States, Rule 13.3 (ninety days after entry of the judgment or order soughtto be reviewed).³ This was after the April 24, 1996, effective date of the AEDPA. Thus, Petitioner's one-year time period for filing a federal habeas challenging his conviction expired on Thursday, July 23, 2009.⁴ Consequently, the Petition filed in this Court on August 19, 2013, would be untimely, unless Petitioner availed himself of one of the statutory provisions that extends or tolls the time period.

Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled during the time that "a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Here, 168 days of the federal limitations period elapsed before Petitioner filed his first state post-conviction motion - - a motion pursuant to Florida Rule of Criminal Procedure 3.850 filed on January 7, 2009. See Exh. 6. On January 23, 2009, the post-conviction trial court struck the motion as facially insufficient. Exh. 7. Petitioner filed an appeal of the ruling on February 18, 2009. Exh. 8. The appellatecourt entered an order on June 11, 2010, dismissing the appeal for lack of jurisdiction, without prejudice, because the post-conviction trial court's order was a non-final order, but invited Petitioner to file an amended Rule 3.850 motion in the post-conviction court within thirty days from the date on the order. Exh. 11. The appellate court permitted Petitioner an opportunity to file an amended Rule 3.850 motion because the post-conviction court's order did not specify a time for Petitioner to file an amended Rule 3.850 motion, noting that Petitioner's two-year deadline to file a Rule 3.850 motion expired by the time the appellate court issued its order. Id. at 2. Petitioner filed an amended Rule 3.850 motion on July 12, 2010, which was within the appellate court's deadline.

Respondent acknowledges that if the Court determines Petitioner's appeal of the denial of his initial Rule 3.850 motion was "properly filed," then the instant § 2254 Petition is timely. Response at 15. Petitioner garners tolling of the AEDPA statute of limitations when he filed his initial Rule 3.850 motion even though the postconviction court deemed the motion "facially insufficient." Green v. Tucker, Case No. 2:12-cv-17-FtM-99 SPC, 2013 WL 351870 *1 (M.D. Fla. Jan. 29, 2013).

As previously stated, under § 2244(d)(2), the limitations period is tolled during a properly filed application for state post-conviction relief. An application is properly filed "whenits delivery and acceptance are in compliance with the applicable laws and rules governing files. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (footnote omitted). Filing conditions encompass more than merely conditions necessary "to get a clerk to accept [a] petition," and include more requirements that "often necessitate judicial scrutiny." Pace v. DiGuglielmo, 554 U.S. 408, 414-15 (2008).

Respondent points to Green v. Tucker, Case No. 2:12cv17-FtM-99SPC, 2013 WL 351870 (11th Cir. 2013), and argues that the instant Petition is untimely because Petitioner did not garner any tolling of the federal statute of limitations when he filed his appeal on February 18, 2009, following the postconviction court's order striking his facially insufficient Rule 3.850 motion. Response at 10. However, unlike the petitioner in Green who did not appeal the post-conviction court's order, Petitioner Brown timely appealed the post-conviction court's order striking his facially insufficient motion in compliance with the appellate court's order. See Evans v. Chavis, 546 U.S. 189, 191 (2006) ("[t]he time that an application for state post-conviction review is pending includes the time period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal,provided that the filing of the notice of appeal is timely under state law.")(italics in original, citations omitted)).

Respondent further points to Green to support the proposition that Petitioner's AEDPA clock should not be tolled during the pendency of his appeal and submits the post-conviction court's order was non-final and therefore not appealable. To the contrary, in Green, the district court discussed a Rule 3.850 motion that was stricken for facial insufficiency noting that under Florida law it remained unclear whether a motion stricken for facial insufficiency was appealable. Id. at *2 (emphasis added) (citing Howard v. State, 978 So. 2d 635, 636 (Fla. 5th DCA 2008); Smith v. State, 100 So. 3d 201, 202 (Fla. 2d DCA 2012)).

The instant case is distinguishable from Green. Here, the appellate court dismissed Petitioner's appeal for lack of jurisdiction, but permitted Petitioner an opportunity to file an amended Rule 3.850 motion because the post-conviction court never specified a time within which Petitioner should file the amended motion. Petitioner then timely filed an amended Rule 3.850 motion as directed in the appellate court's order. Petitioner Green, who did not appeal the post-conviction court's order striking his legally insufficient Rule 3.850 motion, requested that the district court toll his statute of limitations from the date he filed his initial Rule 3.850 to the date he filed his amended Rule 3.850. Id. at *2. The district court declined to toll the timefor Petitioner Green because once the post-conviction court struck Green's Rule 3.850 as facially insufficient, the Court determined the 3.850 motion was no longer deemed properly filed under applicable precedent. Id. at *3. The test of finality, as articulated by Florida case law, is "whether the order in question constitutes the end of judicial labor in the case, and nothing further remains to be done by the court to fully effectuate a termination of the cause as between the parties directly affected." Green, 2013 WL 351870 *2 (citing S.L.T. Waterhouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)). Petitioner allowed less than one month of time to lapse between the dismissal of his Rule 3.850 as facially insufficient and the date he filed his appeal. Because the appellate court allowed Petitioner time to file an amended Rule 3.850 motion, in part due to the post-conviction court's failure to specify a time to file an amended Rule 3.850 motion, this Court finds Petitioner is entitled to tolling during the pendency of his appeal. Consequently, the instant Petition is timely. The Court will now turn to address the merits of the grounds raised in the Petition.

II. Applicable § 2254 Law

A. Deferential Review Required By AEDPA

Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Abdul-Kabir v.Quarterman, 550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S. 782, 792 (2001). Consequently, post-AEDPA law governs this action. Abdul-Kabir, 550 U.S. at 246; Penry, 532 U.S. at 792; Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th Cir. 2007).

Under the deferential review standard, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(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). Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398 (2011). "This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that the state-court decisions be given the benefit of the doubt." Id. (internal quotations and citations omitted). See also Harrington v. Richter, ___ U.S. ___, 131 S. Ct....