Byrd v. Sec'y, Dep't of Corr.
| Decision Date | 31 July 2012 |
| Docket Number | CASE NO: 8:11-cv-2097-T-30MAP |
| Parties | COREY D. BYRD, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondent(s). |
| Court | U.S. District Court — Middle District of Florida |
Petitioner, an inmate of the Florida penal system proceeding pro se, brings this petition for writ of habeas corpus (hereinafter "Petition") pursuant to 28 U.S.C. § 2254 (Dkt. 1). The Court has considered the petition, Respondents' response (Dkt. 27) and Petitioner's reply (Dkt. 30). Upon review, the Court determines that the petition must be denied because it is untimely under 28 U.S.C. § 2244(d) and fails to satisfy 28 U.S.C. §§ 2254(d) and (e).
Petitioner was indicted for first degree murder in case no. 2004-CF-3841 of the Twelfth Judicial Circuit, Manatee County, Florida. He pled "not guilty" and, after a jury trial, was found guilty as charged. Petitioner was adjudicated guilty on October 6, 2005, and was sentenced to life imprisonment. An appeal followed, and on January 12, 2007, the state appellate court affirmed per curiam without written decision in case no. 2D05-5190. Byrdv. State, 949 So. 2d 205 (Fla. Dist. Ct. App. 2007). Petitioner did not seek certiorari review from the United States Supreme Court.
On January 22, 2008, Petitioner filed a pro se post-conviction motion under Fla. R. Crim. P. Rule 3.850 based on seven (7) grounds. Several amended Rule 3.850 motions followed. All except one of Petitioner's grounds were summarily denied, and after conducting an evidentiary hearing, the post-conviction court denied the remaining Rule 3.850 ground on February 1, 2010. Petitioner did not file an appeal before the time to do so expired on March 3, 2010. On April 27, 2010, however, Petitioner filed a motion for belated appeal, which was granted. The appeal was considered but the post-conviction court's denial of relief was affirmed per curiam without written decision, and the mandate issued November 16, 2011. Petitioner filed the instant petition under 28 U.S.C § 2254 on September 15, 2011, raising five claims of ineffective assistance of counsel, one claim that the trial court lacked subject matter jurisdiction, and one claim of a double jeopardy violation.
Since Petitioner's conviction was entered after the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), his petition is subject to the provisions thereof. When a federal court is asked to review a criminal conviction from state court, 28 U.S.C. § 2254 places a heavy burden upon the petitioner. Habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim resulted in a decision that:
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Essentially, AEDPA attempts to "prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). As the Supreme Court held in Williams, the district court's review of the state court's factual findings must be highly deferential. 529 U.S. at 362. Furthermore, the state court's findings are presumed to be correct unless rebutted by clear and convincing evidence. Id. The findings of the state court shall be accepted unless they are "contrary to" established Supreme Court precedent or involve an "unreasonable application" of such precedent. Id. Finally, if no Supreme Court precedent is on point, or if such precedent is ambiguous, it cannot be said that the state court's conclusion is contrary to clearly established federal law. Mitchell v. Esparaza, 540 U.S. 12, 17 (2003).
Where a claim of ineffective assistance of counsel is made, a petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is performance which is objectively unreasonable under the prevailing professional forms. Id. at 688. Prejudice results when there is "a reasonableprobability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Eleventh Circuit has held that "[w]hen applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds." Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998). Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)).
Under Strickland, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)).
The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial ... We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992).
The Petition is not time-barred pursuant to 28 U.S.C. § 2244(d). State prisoners whose conviction became final after April 24, 1996, the effective date of the AEDPA, havea one-year limitation to file a § 2254 habeas petition starting from the last of the following four events: (1) the date on which the conviction became final; (2) the date on which any state-imposed impediment to filing the petition is removed; (3) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim presented could have been discovered through due diligence. Under 28 U.S.C. § 2244(d)(2), the time in which a properly filed state post-conviction motion or other collateral review is pending does not count towards the time period for filing habeas corpus.
Under 28 U.S.C. § 2244(d)(1)(A), a conviction becomes final by "the conclusion of the direct review or the expiration of time for seeking such review." Bond v. Moore, 309 F.3d 770, 772 (11th Cir. 2002). Petitioner's judgment was final on May 23, 2007; that is, ninety (90) days after the Florida district court denied his motion for rehearing of the silent affirmance on his direct appeal. See Nix v. Sec'y for Dep't of Corr., 393 F.3d 1235, 1236-37 (11th Cir. 2004) (). Accordingly, absent any collateral proceeding that tolled the federal statutory time period, Petitioner's federal habeas was due on or before May 23, 2008.
Petitioner did not file any collateral state court actions until January 22, 2008 - i.e., 243 days after final judgment - when he filed his state Rule 3.850 motion. That motion was denied on February 1, 2010, at which time the tolling ceased. Because Petitioner did nottimely appeal the denial of his Rule 3.850 motion, such motion was no longer pending on March 3, 2010, when the time expired for appealing its denial. Thereafter, an additional period of 55 days ran on Petitioner's AEDPA clock before he filed a motion for belated appeal on April 27, 2010. If a motion for belated appeal is granted, it tolls an unexpired AEDPA period. Williams v. Crist, 230 Fed. Appx. 861, 867-68 (11th Cir. 2006). Petitioner filed this Petition on September 15, 2011, before the post-conviction court's denial of relief was affirmed on November 16, 2011. Therefore, when this Petition was filed, a total of 298 (243 plus 55) days had elapsed and 67 days remained on Petitioner's AEDPA clock, rendering the Petition timely.
This Court acknowledges the State's argument of untimeliness vis-a-vis Williams. In Williams, one of the five reasons the court cited for concluding that a belated appeal motion had a tolling effect was that the appeal was docketed in the same appellate case number as the belated appeal motion. Id. at 868. The State attempts to distinguish the instant case from Williams by emphasizing that a separate appeal was instituted in which review of Petitioner's Rule 3.850 denial was undertaken. However, this is not dispositive and does not control here because the other reasons from Williams support tolling.
Petitioner's writ of habeas corpus fails to satisfy the requirements of §§ 2254(d)-(e). Under § 2254(d), a district court may entertain a state prisoner's application for writ of habeas corpus of a claim that was adjudicated on the merits in state court proceedings when: (1) the result or application was contrary to clearly established Federal law or (2) when theresult was based on an unreasonable determination of facts in light of the evidence presented in the state court proceedings. Pursuant to § 2254(e)(1), a factual finding made by the State court shall be presumed to be correct and the petitioner has the burden...
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