Carter v. Sec'y
| Decision Date | 06 February 2017 |
| Docket Number | Case No.: 3:15cv142-LC/CAS |
| Parties | BRANDON CARTER, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
REPORT AND RECOMMENDATION TO DENY § 2254 PETITION
Petitioner Brandon Carter, proceeding pro se, filed a petition for writ of habeas corpus in this Court on March 27, 2015, by the Mailbox Rule, seeking relief under 28 U.S.C. § 2254. ECF No. 1. On April 21, 2015, this Court ordered Respondent to file an answer, motion, or other response, and gave Petitioner leave to reply. ECF No. 5. On September 21, 2015, Respondent filed a "Response to Petition for Writ of Habeas Corpus" contending that Petitioner's application should either be dismissed as untimely, or denied on one of several grounds. ECF No. 11. Respondent also filed exhibits in support of the response. ECF No. 13. Petitioner filed a reply in opposition on October 12, 2015. ECF No. 15.
The matter is referred to the undersigned United States Magistrate Judge for issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters, pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). As explained in detail below, based on the pleadings and attachments before the Court, the undersigned has determined Respondent's motion to dismiss the petition should be granted.
On April 17, 2009, Petitioner was charged by information in the Circuit Court of Escambia County, Florida, with two counts of armed robbery with a firearm in violation of sections 812.13(2)(a) and 775.087(2), Florida Statutes, and one count of possession of a firearm by a convicted felon in violation of section 790.23(1), Florida Statutes. ECF No. 13 Ex. A.1 He was convicted after a jury trial on both counts of armed robbery, and pled nolo contendere to the third count, which was severed for trial. Ex. D. Petitioner was sentenced on August 28, 2009, to 15 years each on Counts I and II, and a further 15 years with respect to Count III, the sentences torun concurrently. Ex. F. The trial court also imposed a 15-year mandatory minimum with respect to Counts I and II pursuant to section 775.087(2), Florida Statutes, because the offense involved a firearm. Id.
Petitioner appealed, and on April 21, 2010, Petitioner's appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Ex. I. Petitioner did not file a supplemental pro se brief. The First District Court of Appeal (hereafter "First DCA") affirmed Petitioner's conviction and sentence per curiam on August 13, 2010. Ex. J; Carter v. State, 42 So. 3d 236 (2010) (table). The First DCA issued its mandate on September 8, 2010. Ex. J. Because the First DCA affirmed Petitioner's conviction without opinion, Petitioner was procedurally barred from seeking discretionary review by the Florida Supreme Court. See, e.g., Jackson v. State, 926 So. 2d 1262, 1265 (Fla. 2006). Petitioner did not seek direct review by the United States Supreme Court, and his conviction and sentence became final on November 12, 2010.2 See Clay v. United States, 537 U.S. 522, 525 (2003) (); Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir. 2002) ().
After the conclusion of direct appeal, Petitioner did not file any motions or pleadings attacking his original conviction or sentence in either state or federal court for more than a year. In the absence of any filing which would trigger the statutory tolling provisions of 28 U.S.C. § 2244(d)(2), Petitioner's original window for filing a timely section 2254 petition expired on November 14, 2011.3 It may be inferred that either Petitioner did not intend to seek federal review of his conviction and sentence, or that he erroneously believed that his federal limitation period would only begin after the conclusion of the two-year window for collateral attacks in state court established by Florida law. See Fla. R. Crim. P. 3.850(b) (). By this rule, Petitioner's window to file a timely Rule 3.850 motion in Florida's courts would close on September 10, 2012.4 Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 on July 31, 2012, with just over a month to spare. Ex. N.
Petitioner's Rule 3.850 motion alleged eight grounds for relief, six of which (Grounds 1-7) contended that Petitioner's trial counsel had been constitutionally ineffective. Id. Ground 8 alleged that the "cumulative effect of the errors in this case" deprived Petitioner of a fair trial. Id. at 18-19. Ground 4 alleged that Petitioner's trial counsel was constitutionally ineffective in failing to object to the court's application of a 10-year mandatory minimum sentence to Petitioner, because the jury that convicted Petitioner did not find that he actually possessed a firearm. Id. at 8-12. On June 10, 2013, the state court granted Petitioner's Rule 3.850 motion with respect to Ground 4, and denied it with respect to all other grounds. Ex. U. On June 11, 2013, Petitioner's judgment and sentence were re-recorded todelete the mandatory minimum sentence with respect to Counts I and II. Ex. V.
Petitioner did not pursue any direct appeal of his re-entered judgment and sentence. Rather, on July 5, 2013, Petitioner filed a notice of appeal which identified the state court's denial of Petitioner's Rule 3.850 motion as the subject of the appeal. Ex. W. The First DCA affirmed the state post-conviction court's ruling per curiam without opinion on November 12, 2013, and issued its mandate on December 10, 2013. Ex. Z.
On April 17, 2014, Petitioner filed a "Motion for Discharge" pursuant to Florida Rule of Criminal Procedure 3.191(p). Ex. AA. Rule 3.191 is titled "Speedy Trial," and subsection (p) provides remedies for the failure to try a person accused of a crime within the time specified by subsection (a). In his motion, Petitioner contended that he was brought to trial 25 days later than permitted by Rule 3.191, and that this delay deprived the trial court of subject matter jurisdiction. Ex. AA. The state court denied Petitioner's motion on May 30, 2014. Ex. BB. After explaining that subject matter jurisdiction in a criminal case is invoked by the filing of a proper information, the state court held that "[Petitioner] is procedurally barred at this juncture from challenging his conviction pursuant to Rule 3.850." Petitioner appealed on June 27, 2014. Ex. CC. The First DCA affirmed per curiam without opinion on October 6, 2014, denied Petitioner's motion for rehearing on October 28, 2014, and issued its mandate on December 9, 2014. Exs. DD & EE.
On March 27, 2015, Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting a single ground for relief. ECF No. 1. Respondent filed a combined response which first moves the Court to dismiss the petition as untimely. ECF No. 11 at 2-13. Respondent further contends that, even if Petitioner's section 2254 petition is not time-barred, it presents an issue of state law not cognizable in federal habeas, and should be dismissed. Id. at 13-16. Finally, Respondent argues that, even if Petitioner's claim presents a federal question, that claim should be denied on the merits. Id. at 16-20. Petitioner filed a reply on October 12, 2015. ECF No. 15.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2241 et seq., establishes timely filing as a threshold question for federal courts when reviewing petitions for federal review of state custody. See 28 U.S.C. § 2244(d) (establishing limitation period). A one-year limitation period applies to section 2254 petitions, and generally begins running from the date on which the applicant's conviction and sentence became final, whether through the conclusion of direct review thereof or through the expiration of the time in which the applicant could have sought such review. Id. § 2244(d)(1)(A). The limitation period may be tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id. § 2244(d)(2). "A state postconviction application remains pending until the application has achieved final resolution through the State's postconviction procedures." Lawrence v. Florida, 549 U.S. 327, 332 (2007) (internal marks omitted) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)).
To toll the statutory deadline, a state petition must be "properly filed." 28 U.S.C. § 2244(d)(2). This requires, among other things, that the state application be timely filed in the state court: time limits are a "condition to filing" petitions, such that a motion which does not comply with an applicable time limitation would not be "properly filed." Artuz v. Bennett, 531 U.S. 4, 8 (2000). Other conditions of filing include "the applicable laws and rules governing filings" such as "the form of the document, . . . the court and office in which it must be lodged, and the requisite filing fee." Id. "[A] petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more 'properly filed' than a petition filed after a time limit that permits no exception." Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). Even if a motion is properly filed, it must be "an attack on the constitutionality or legal correctness of the sentence" to...
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