Cannon v. Jones
| Decision Date | 24 August 2015 |
| Docket Number | Case No.: 3:14cv348/MCR/EMT |
| Court | U.S. District Court — Northern District of Florida |
| Parties | KIMBERLY M. CANNON, Petitioner, v. JULIE L. JONES, Respondent. |
This cause is before the court on Petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (doc. 1). Respondent filed an answer and relevant portions of the state court record (doc. 21). Petitioner filed a reply (doc. 24).
The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C) and Fed. R. Civ. P. 72(b). After careful consideration of all issues raised by Petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief.
The relevant aspects of the procedural background of this case are established by the state court record (see doc. 21).1 Petitioner was charged in the Circuit Court in and for Escambia County, Florida, Case No. 2002-CF-404, with one count of burglary of an unoccupied dwelling (Count 1)and one count of grand theft (Count 2) (Ex. A3). She was subsequently charged in the Escambia County Circuit Court in three additional cases. In Case No. 2004-CF-520, she was charged with one count of exploitation of the elderly, one count of organized fraud, eight counts of grand theft, and one count of felony petit theft (Ex. C). In Case No. 2004-CF-528, she was charged with three counts of illegal use of personal identification, one count of grand theft auto, and two counts of forgery (Ex. D). And in Case No. 2004-CF-707, she was charged with three counts of making a false statement with intent to defraud a financial institution (Ex. B3).
Disposing of all counts in all cases, on November 18, 2004, Petitioner signed a negotiated plea agreement, pursuant to which she agreed to plead nolo contendere to all counts as charged in Case Nos. 2002-CF-404, 2004-CF-520, and 2004-CF-707 (Ex. E). In Case No. 2004-CF-528, Petitioner agreed to enter a nolo contendere plea to two counts of illegal use of personal identification and two counts of forgery, and the State agreed to nolle pros the remaining two counts (id.). Pursuant to the plea agreement, Petitioner would be adjudicated guilty and serve (id.).
During proceedings held November 19, 2004, the court accepted Petitioner's pleas, adjudicated her guilty on all counts to which she pled, and sentenced her to concurrent terms of five years of incarceration, to be followed by five years of probation, with pre-sentence jail credit (Exs. F, G, H). On February 3, 2005, the court granted Petitioner's request for an additional five days of sentence credit, and the judgment was modified accordingly (Exs. G, I).
On March 8, 2007, Petitioner filed a motion to correct illegal sentence, pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure (Ex. J1). In an order rendered July 9, 2007, the state circuit court granted the motion and directed the clerk of court to correct the judgment and sentence to reflect the following:
Defendant's third-degree felonies (count 2 in case no. 02-0404B, counts 1 through 11 in case no. 04-0520B, counts 2, 3, 5, and 6 in case no. 04-0528B) should be corrected to reflect a sentence of five years of incarceration on each count, to be served concurrently. The rest of Defendant's sentences shall remain the same.
(Ex. J2).
On May 9, 2008, a probation violator warrant issued (Ex. M). Petitioner was charged with nine violations (Ex. P). During proceedings held October 22, 2010, Petitioner pleaded no contestto Counts I through V of the Addendum to Violation Report (three allegations of new law violations charged in the Circuit Court in and for Leon County, Florida, Case No. 2008-CF-1677, and two allegations of possessing or sending contraband from a county detention facility for an attempted escape, or a solicitation to aid in escape) (Exs. P, Q). The State nolle prossed the remaining four alleged violations (see Ex. Q). The court adjudicated Petitioner guilty of violating her probation and sentenced her in Case No. 2002-CF-404, to fifteen years in prison, with credit for time served (see Exs. Q, S, T). The court sentenced her in Case No. 2004-CF-707, to three concurrent terms of ten years in prison, to run consecutively to the sentence in Case No. 2002-CF-404 and consecutively to any other sentence she was then serving, with credit for time served (see Exs. Q, S).2 The judgment was rendered October 22, 2010 (see Ex. S).
On February 2, 2011, Petitioner filed a petition for writ of habeas corpus in the Florida First District Court of Appeal ("First DCA"), Case No. 1D11-0678, seeking a belated appeal (Ex. U1). The First DCA granted the petition and directed the circuit court to treat the petition as a notice of appeal (Ex. U2). Cannon v. State, 65 So. 3d 83 (Fla. 1st DCA 2011) (Mem). Petitioner's counsel filed a brief in Case No. 1D11-4042, pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that the appeal was "wholly frivolous" (Ex. V). Petitioner filed a pro se initial brief (Ex. X). The First DCA affirmed the VOP judgment per curiam without written opinion on March 21, 2012, with the mandate issuing April 17, 2012 (Ex. Y). Cannon v. State, 83 So. 3d 712 (Fla. 1st DCA 2012) (Table). Petitioner did not seek further review.
On September 7, 2011, while the appeal was pending, Petitioner filed a Rule 3.800(a) motion to correct illegal sentence (Ex. AA1). The state circuit court dismissed the motion for lack of jurisdiction on September 20, 2011 (Ex. AA2).
On January 16, 2012, Petitioner filed a letter in the Supreme Court of Florida (Ex. BB1). The state supreme court treated the filing as a petition for writ of habeas corpus and assigned Case No. SC212-168 (Exs. BB2). The court issued an order directing Petitioner to show cause why thepetition should not be dismissed as unauthorized (Ex. BB3). Petitioner filed a response (Ex. BB4). On April 11, 2012, the state supreme court dismissed the habeas petition (Ex. BB5). Cannon v. Tucker, 88 So. 3d 148 (Fla. 2012) (Table).
On April 13, 2012, Petitioner filed a motion in the state circuit court seeking jail credit (Ex. CC). The court denied the motion on August 2, 2012 (see Ex. A1 at 13, Ex. B1 at 9).
Also on April 13, 2012, Petitioner filed a motion for postconviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. DD1). Petitioner subsequently filed a motion for voluntary dismissal (Ex. DD2), which the court granted and dismissed the Rule 3.850 motion without prejudice in an order rendered August 2, 2012 (Ex. DD3).
While the Rule 3.850 motion was pending, Petitioner filed a Rule 3.800(a) motion (Ex. EE1). The state circuit court denied the motion in an order rendered August 2, 2012 (Ex. EE2). Petitioner appealed the decision to the First DCA, Case No. 1D12-3988 (Ex. EE3). The First DCA affirmed the decision per curiam without written opinion on December 10, 2012, with the mandate issuing January 7, 2013 (id.). Cannon v. State, 103 So. 3d 146 (Fla. 1st DCA 2012) (Table).
Petitioner filed another Rule 3.800(a) motion on March 18, 2013 (Ex. FF1). The state circuit court denied the motion in an order rendered April 19, 2013 (Ex. FF2).
Petitioner filed another Rule 3.850 motion on June 16, 2013 (Ex. GG1). In an order rendered November 6, 2013, the state circuit court struck the motion as facially insufficient, without prejudice to Petitioner's filing an amended motion within sixty days (Ex. GG2). Petitioner filed an amended motion on December 6, 2013 (Ex. GG3). The state circuit court summarily denied it on February 24, 2014 (Ex. GG4). Petitioner appealed the decision to the First DCA, Case No. 1D14-1495 (Exs. GG5, GG6). The First DCA affirmed the decision per curiam without written opinion on May 27, 2014, with the mandate issuing July 23, 2014 (Ex. GG8). Cannon v. State, 114 So. 3d 184 (Fla. 1st DCA 2014) (Table).
Petitioner filed the instant federal habeas action on July 21, 2014 (doc. 1). Respondent concedes that the petition was timely filed (doc. 21 at 12).
Section 2254(a) of Title 28 provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court"upon a showing that his custody is in violation of the Constitution or laws of the United States. As the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for habeas review of state court decisions under § 2254 as brought about by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104-132, § 104, 110 Stat. 1214, 1218-19. In relevant part, section 2254(d) now provides:
28 U.S.C.A. § 2254 (2002).
The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).3 The appropriate test was described by Justice O'Connor...
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