Burns v. Jones

• Decision Date: 25 April 2017
• Docket Number: Case No. 5:15cv65-RV/CAS
• Parties: AARON BURNS, Petitioner, v. JULIE L. JONES, Secretary, Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Florida

AARON BURNS, Petitioner, v. JULIE L. JONES, Secretary, Department of Corrections, Respondent.

Case No. 5:15cv65-RV/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION

April 25, 2017

REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

Petitioner, Aaron Burns, a prisoner in the custody of the Florida Department of Corrections, proceeding pro se under the mailbox rule, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 30, 2015. ECF No. 1. Respondent filed an answer with exhibits on December 1, 2015. ECF No. 11. Pursuant to leave to amend, Petitioner filed an amended § 2254 petition under the mailbox rule on February 24, 2016. ECF No. 15. Respondent filed an amended answer on March 23, 2016, referring to exhibits containing the state court record filed with Respondent's first answer. ECF No. 17. No reply was filed, although leave was given to do so. ECF No. 13. Petitioner challenges his convictions and sentences entered by the Circuit Court, Fourteenth Judicial Circuit, in and for Bay County, Florida, after jury trial.

The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this amended § 2254 petition should be denied.

Background and Procedural History

Petitioner, Aaron Burns, was charged by Amended Information with Count 1, sexual battery with a deadly weapon upon J.E.M., a person 12 years of age or older, occurring on or about July 27, 2009, in violation of sections 794.011(3), 794.011(4)(b), and 794.011(4)(f), Florida Statutes; and Count 2, kidnapping of J.E.M., on or about July 27, 2009, in violation of section 787.01(1)(a), Florida Statutes. Ex. A at 38.¹ Jury trial was held on February 18-19 and 25-16, 2010. Exs. G-M.

By verdict entered on February 26, 2010, Petitioner was found guilty of the lesser included offense of sexual battery of a physically incapacitated person and guilty as charged of kidnapping. Ex. A at 167-68. Judgment was entered on May 27, 2010, and Petitioner was sentenced as a prison releasee reoffender pursuant to section 775.082, Florida statutes, to a term of 30 years in prison on Count 1 and life in prison on Count 2, to run concurrently with the sentence for Count 1, with credit for time served of 304 days. Ex. B at 251-60. Petitioner appealed to the state First District Court of Appeal, Ex. O, which affirmed per curiam without a written opinion on December 29, 2011.² Ex. R. The mandate was issued on January 17, 2012. Ex. S. See Burns v. State, 76 So. 3d 294 (Fla. 1st DCA 2011)(table). Petitioner's pro se petition for writ of certiorari to the United States Supreme Court, Ex. AA, was denied on May 29, 2012. Ex. CC.

Petitioner, pro se, filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 on July 27, 2012. Ex. T at 1-44. The trial court summarily denied the motion in part and granted it in part by order, with attachments, on February 12, 2013. Ex. U at 137-327; Ex. V at 328-433. In granting relief on one ground, after the State conceded there was insufficient evidence to find the victim was "physically incapacitated" as defined by section 794.011(1)(j), the trial court found trial counsel was ineffective in failing to argue the insufficiency of that evidence at trial to prove sexual battery of a physically incapacitated person. Ex. U at 141. The trial court explained:

However, because there was sufficient evidence to sustain a finding of guilt for the necessary lesser included offense of sexual battery, pursuant to Rule 3.620, Florida Rules of Criminal Procedure, the remedy is not to grant the Defendant a new trial but to adjudge the Defendant guilty of sexual battery. SeeWallace v. State, 66 So. 3d 1086 (Fla. 3d DCA 2011); Fla. Stat. § 974,011; Std. Jury Instructions in Crim. Cases 11.2. Therefore, the Defendant is entitled to be resentenc[ed] on the lesser included offense of sexual battery.

Ex. U at 141. Petitioner appealed and the state First District Court of Appeal affirmed per curiam without explanation on August 27, 2013.³ Ex. W. See Burns v. State, 122 So. 3d 870 (Fla. 1st DCA 2013) (table).

As a result of the trial court granting relief in part on Petitioner's Rule 3.850 motion, Petitioner was resentenced on January 27, 2014, on Count 1 to 15 years in prison, with his life sentence for Count 2 remaining unchanged. Ex. HH at 781-87. On February 11, 2014, Petitioner appealed to the state First District Court of Appeal, Ex. JJ, which affirmed on August 8, 2014, Ex. NN, and issued the mandate on September 3, 2014.⁴ Ex. OO. See Burns v. State, 146 So. 3d 1174 (Fla. 1st DCA 2014) (table).

On March 3, 2014, Petitioner filed a petition for writ of habeas corpus in the state First District Court of Appeal alleging ineffective assistance of appellate counsel by failing to raise as fundamental error error on direct appeal the trial court's failure to strike an openly biased juror for cause; and by failing to raise as error the issue of instances of prosecutorialmisconduct in opening and closing argument. EX. PP. On July 9, 2014, the state appellate court denied the petition on the merits. Ex. QQ. See Burns v. State, 141 So. 3d 1253 (Fla. 1st DCA 2014).

Petitioner filed his amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court raising the following six grounds for relief:

(1) Whether the trial court erred in excluding the testimony of Larry Burns regarding prior inconsistent statements of the alleged victim. ECF No. 15 at 5.

(2) Whether the trial court erred in excluding the testimony of Wanda Hollinger regarding prior inconsistent statements of the alleged victim. ECF No. 15 at 8.

(3) Whether the trial court erred by failing to grant a new trial on Counts 1 and 2 instead of adjudicating the Petitioner guilty of a lesser included offense pursuant to Florida Rule of Criminal Procedure 3.620. ECF No. 15 at 10.

(4) Petitioner's state and federal Constitutional rights to speedy trial were violated, thereby entitling Petitioner to dismissal of the case and discharge from custody. Alternatively, trial counsel rendered ineffective assistance in failing to timely move for speedy trial after the speedy trial time period had expired, thus depriving Petitioner of his Sixth and Fourteenth Amendment rights. ECF No. 15 at 12.

(5) Whether Petitioner's Sixth Amendment right to trial by an impartial jury was violated due to the presence of a biased juror. Alternatively, trial counsel rendered ineffective assistance by failing to ensure removal of a biased juror. ECF No. 15 at 14.

(6) Trial counsel rendered ineffective assistance by failing to impeach the alleged victim with prior inconsistent statements that were material to the defense. ECF No. 15 at 16.

Analysis

Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody only under certain specified circumstances. Section 2254(d) provides in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011).

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring). "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413 (O'Connor, J., concurring).

The Supreme Court has explained that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 102 (2011). The Court stated:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. . . . It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and

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