Caldwell v. Attorney Gen., Case No. 5:08-cv-151-Oc-10GJK

• Decision Date: 18 July 2011
• Docket Number: Case No. 5:08-cv-151-Oc-10GJK
• Parties: Larry Caldwell, Petitioner, v. Attorney General, State of Florida, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

Larry Caldwell, Petitioner,

v.Attorney General, State of Florida, et al., Respondents.

Case No. 5:08-cv-151-Oc-10GJK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

Dated: July 18, 2011

MEMORANDUM AND ORDER

This matter is before the Court on a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. For the reasons that follow, the Petition is denied.

BACKGROUND

In November 2004, Petitioner was found guilty of burglary of a dwelling with battery and of sexual battery, in violation of Florida Statutes §§ 810.02, 784.03, and 794.011(5). He was also found to be a Prison Release Offender and sentenced to life in prison on both counts.

After his conviction, Petitioner filed a notice of appeal to the Florida Fifth District Court of Appeal. Petitioner's public defender submitted a brief but moved to withdraw from the case. Petitioner proceeded pro se and raised two issues on appeal: 1) Whether the court erred when entering judgment because the charges were a violation of the Double Jeopardy clause of the Fifth Amendment; and 2) the sentence on Count 2 was illegal. The Florida Fifth District Court of Appeal affirmed Petitioner's conviction.

In November 2005, Petitioner filed a motion for post-conviction relief, once amended, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. The motion set forth several grounds for relief, all of which alleged ineffective assistance of counsel. The trial court denied the motion in part and ordered an evidentiary hearing. Following an October 2006 evidentiary hearing, the court denied Petitioner's motion in full.

Petitioner, again represented by the Public Defender's Office, then filed notice of appeal with the Florida Fifth District Court of Appeal. In October 2007, the court per curiam affirmed.

The instant Petition for federal habeas relief was filed on April 9, 2008. In his Petition, Petitioner raises three main claims: 1) the trial court erred in denying his motion for judgment of acquittal; 2) his convictions violate double jeopardy; and 3) ineffective assistance of counsel. Petitioner bases his ineffective-assistance-of-counsel claim on counsel's (a) failure to conduct adequate pre-trial investigation, (b) advice on testifying, (c) advise to reject plea offer, (d) failure to make adequate objections at trial, (e) failure to object to improper jury instructions, and (f) failure to object to the admissibility of DNA evidence.

The Government argues that Petitioner has only exhausted his state remedies on claims 1, 2, and 3(a) and (b). As a result, federal habeas review is not available on Petitioner's remaining sub-claims, 3(c), (d), (e), and (f). In addition, Petitioner's other claims have already been denied on the merits. The Government asks that the Petition be dismissed with prejudice.

Petitioner argues that he is entitled to an evidentiary hearing, that Claim 3, sub-issues (e) and (f) are not procedurally barred, and that summary judgment/dismissal of his Petition is inappropriate.

DISCUSSION

I. Standard of Review

The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") strictly limits a federal court's power to review habeas petitions brought by state-court prisoners. In particular, the AEDPA restricts the Court's review to state-court adjudications of the direct appeal or habeas petition that:

(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).

The habeas statute also requires that a petition submitted by a person in custody pursuant to a state conviction be filed in federal court within one year from the date the conviction became final, 28 U.S.C. § 2244(d), and that a habeas petitioner exhaust his available state court remedies prior to raising them in a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A). Generally, claims alleging a violation of state law are not subject to review in federal habeas proceedings. Pulley v. Harris, 465 U.S. 37, 41 (1984); McCullough v. Singletary, 967 F.2d 530, 535-36 (11th Cir. 1992).

II. Evidentiary Hearing

The Government argues that Petitioner is not entitled to an evidentiary hearing on the instant federal habeas petition. This Court agrees. Indeed,

a habeas corpus petitioner is entitled to an evidentiary hearing on his claim if he alleges facts which, if proven, would entitle him to relief. A district court, however, need not conduct an evidentiary hearing if it can be conclusively determined from the record that the petitioner was not denied effective assistance of counsel.

Smith v. Singletary, 170 F.3d 1051, 1053-54 (11th Cir. 1999) (citations and internal quotation marks omitted). Petitioner has not alleged facts which, if proven, would entitle him to relief. In addition, as will be explained below, it can be conclusively determined from the record that Petitioner was not denied effective assistance of counsel.

III. Exhaustion/Procedural Default

The Government argues that federal habeas review is not available for Claim 3, sub-issues (c)-(f). The Government asserts that sub-issues (e) and (f) are barred from review because the lower court never addressed them and therefore these sub-issues have not been exhausted. The Government also argues that because Petitioner failed to assert sub-issues (c) and (d) on appeal, these two sub-issues are procedurally defaulted. For the reasons that follow, the Court finds that sub-issues (e) and (f) are appropriate for habeas review because they have been exhausted; however, sub-issues (c) and (d) are procedurally barred and therefore the Court will not address them.

A. Exhaustion

Pursuant to 28 U.S.C. § 2254(b), a court may not grant a writ of habeas corpus on behalf of a person in state custody unless the petitioner has exhausted his remedies in state court. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998). "Exhaustion of state remedies requires that the state prisoner 'fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'" Id. (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)); see also Leon v. Sec'y, Dept. of Corr., No. 8:09-cv-1410, 2011 WL 3467128, at *2 (M.D. Fla. Aug. 31, 2010).

In the current matter, Petitioner raised sub-issues (e) and (f) in his Amended Motion for Postconviction Relief. (App. I at 35-39). These sub-issues, however, were never addressed in the state court's Order Denying Petitioner's Post Conviction Motion. (App. I at 127-40). It is the Government's position, then, that these sub-issues are not exhausted.

The Court disagrees. Petitioner's sub-issues (e) and (f) were clearly laid out in his Amended Motion for Postconviction Relief. (App. I at 35-39). Moreover, they are also connected to a federal constitutional issue as they were a sub-issue of his ineffective-assistance-of-counsel claim. See Snowden, 135 F.3d at 735 ("The petitioner must apprise the state court of the federal constitutional issue, not just the underlying facts of the claim or a similar state law claim.'") (quoting Anderson v. Harless 459 U.S. 4, 6 (1982))). Therefore, Petitioner did exhaust sub-issues (e) and (f) and habeas review of these sub-issues is appropriate.

B. Procedural Default

The Government next argues that Petitioner waived sub-issues (c) and (d) because he did not raise them on appeal. As a result, Petitioner has procedurally defaulted on these sub-issues and federal habeas review of these issues is inappropriate. Petitioner, conversely, contends that he has not procedurally defaulted on these sub-claims because, even though he did not raise them on appeal, sub-issues (c) and (d) were properly brought before the state court in his Postconviction Motion.

Petitioner did not raise sub-issues (c) and (d) in his brief appealing the trial court's denial of his Postconviction Motion. (App. L at 9-15). Consequently, sub-issues (c) and (d) are not ripe for federal review. See Rodwell v. Singletary, 114 F. Supp. 2d 1308, 1312 (M.D. Fla. 2000) (stating that, in a habeas proceeding, "failure to appeal the denial [of a claim] results in a procedural default"); see also Smith v. Jones, 923 F.2d 588, 588 (8th Cir. 1991) (claims stated in post-conviction motion and not appealed were procedurally barred in subsequent habeas proceedings).

However, claims that are subject to procedural default can be addressed by the Court if Petitioner can demonstrate "cause for, and prejudice resulting from, the default." Jones, 923 F.2d at 589 (citing Murray v. Carrier, 477 U.S. 478, 485 (1986)). Petitioner has not alleged either cause or prejudice that would excuse the default. Therefore, the Court finds that Petitioner has defaulted on sub-issues (c) and (d) of Claim 3.

IV. Summary Judgment/Dismissal

The Government requests that the Court dismiss with prejudice the instant Petition. Dismissal is appropriate when it plainly appears from the face of the Petition that Petitioner is entitled to no relief. See 28 U.S.C. § 2254. In the instant matter, claims 1, 2 and 3, sub issues (a), (b), (e), and (f) are ripe for federal review.

A. Claim One: Judgment of Acquittal

Petitioner first argues that the State failed to present sufficient evidence to prove each and every element of the substantive offense charged. In a federal habeas matter, the state court's factual findings are presumed correct unless rebutted by the Petitioner with clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Rutherford v. Crosby, 385 F.3d 1300, 1306 (11th Cir. 2004). Clear and convincing evidence is an intermediate standard that "'does not call for the highest level of proof,' but it must demonstrate . . . a 'high probability' that the state court's factual findings...