Cleveland v. Inch
| Decision Date | 23 March 2021 |
| Docket Number | 3:19cv454-LC-HTC |
| Parties | FRED CLEVELAND, JR., Petitioner, v. MARK S. INCH, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
ORDER AND REPORT AND RECOMMENDATION
Petitioner Fred Cleveland, Jr. ("Cleveland"), proceeding pro se, filed a petition under 28 U.S.C. § 2254, ECF Doc. 1, challenging his conviction in the First Judicial Circuit Court in Escambia County, Florida. The matter was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After considering the petition, the State's response (ECF Doc. 11), and Cleveland's reply (ECF Doc. 15), the undersigned recommends the petition be DENIED without an evidentiary hearing.
Cleveland was charged on November 1, 2010 in Escambia County case number 2010 CF 4676 with two counts of Lewd and Lascivious Conduct by a person over eighteen (18) on a person under sixteen (16), a fifteen-year-old female. ECF Doc. 11-1 at 23. The charges stemmed from the events occurring the early morning of October 8, 2010. Cleveland was a friend of the cousin of the victim, S.T., and had spent the evening at her home playing cards and watching football with S.T.'s brother, uncle and cousin. Id. at 189. S.T. fell asleep in a large chair in the living room, and Cleveland stayed after everyone else had gone to bed. Id.
At around 3:00 a.m., S.T. awoke to find her belt removed, her jeans unzipped, and Cleveland kneeling on the floor in front of her with his hand on her boxer shorts under her jeans. Id. at 191-92. After S.T. awoke, Cleveland “aggressively” told her to let him perform oral sex on her. Id. at 191. She refused, left the room, told her mother and aunt about the event, and they contacted the police that night. Cleveland was eventually charged with one count of lewd and lascivious conduct for fondling her and attempting to remove her clothes while she was asleep and another count for later soliciting her to allow him to perform oral sex on her. Id. at 23.
On January 23, 2011, Cleveland sent the circuit court a letter indicating he wanted to have state-appointed counsel removed and to represent himself. Id. at 34. The circuit court held a hearing on May 9, 2011, and denied the motion, stating Id. at 82.
On the day of jury selection, August 8, 2011, Cleveland claimed he had filed a second request to represent himself the same day as the hearing on his first motion (May 9, 2011) but the court “never even addressed it.” Id. at 106. The court immediately conducted a Faretta[1]inquiry and granted the request for Cleveland to proceed to trial pro se. Id. at 114. Cleveland moved for stand-by counsel, which the court denied. Id. Cleveland also moved for a continuance, which the court also denied. Id. at 115.
The trial was held the next day, August 9, 2011, and the jury found Cleveland guilty on both counts. ECF Doc. 11-1 at 45. He was sentenced right after the verdict was received, without the judge asking him again whether he wanted counsel. Id. at 261. He was sentenced to twelve (12) years on each count, to run consecutively to each other and to any other sentence he was serving. Id. at 269.
The Secretary admits the petition is timely filed, and the Court agrees. Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a petition for habeas relief must be filed within one-year limitations of certain “trigger” dates. 28 U.S.C. § 2244(d)(1). For purposes of Cleveland's petition, the applicable trigger date is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”. 28 U.S.C. § 2244(d)(1)(A). Additionally, the limitations period is tolled for the time during which a “properly filed” postconviction motion is pending in state court. Id. § 2244(d)(2).
Cleveland did not initially file a timely notice of direct appeal in this case but was granted a belated appeal by the First District Court of Appeal (“First DCA”) on September 21, 2012. ECF Doc. 11-1 at 5. That appeal resulted in Cleveland's convictions being affirmed but him being resentenced because the sentencing judge had not again offered appointed counsel before sentencing. ECF Doc. 11-2 at 276; No. 1D12-5228. At resentencing, Cleveland again chose to represent himself, and was re-sentenced to essentially the same penalties. ECF Doc. 11-3 at 18-19 (transcript); ECF Doc 11-2 at 305 (judgment after resentencing, July 30, 2014).
Cleveland filed a direct appeal of the resentencing. ECF Doc. 11-2 at 323; No. 1D14-3978. The First DCA affirmed without written opinion on June 17, 2016. Therefore, Cleveland's conviction became final after the expiration of the 90-day period for Cleveland to file a petition for certiorari with the U.S. Supreme Court expired, September 15, 2016. See Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir. 2002); The Fla. Star v. B.J.F., 530 So.2d 286, 288 n.3 (Fla. 1988) ().
The AEDPA clock ran for seventeen (17) days when Cleveland filed a Rule 3.850 application for postconviction relief in circuit court on October 3, 2016. ECF Doc. 11-3 at 127. That motion was continuously pending until July 27, 2017 when the First DCA issued its mandate affirming, without written opinion, the denial of the 3.850 motion. ECF Doc. 11-3 at 194; No. 1D17-0126.
The AEDPA clock ran for another days 27 days (for a total of 44 days) when Cleveland filed a habeas petition directly with the Florida Supreme Court on August 24, 2017. ECF Doc. 11-3 at 262. The Florida Supreme Court sent the petition to the circuit court, id. at 246, which denied it on January 4, 2018. ECF Doc. 11-4 at 14. Cleveland appealed to the First DCA, which appeal remained pending until the First DCA affirmed without written opinion, id. at 142, and issued its mandate on July 13, 2018. Id. at 154; No. 1D18-0811.
No further applications for postconviction relief were filed in state court after July 13, 2018, [2] and -- because 44 days had run -- 321 days remained on the AEDPA one-year time limit. Therefore, the petition needed to be filed by May 30, 2019 to be timely. Cleveland filed the federal petition on February 25, 2019.
Cleveland raises four grounds challenging his convictions. For the reasons discussed below, Cleveland is not entitled to relief on any of these grounds.
In Ground One, Cleveland argues the convictions on Counts 1 and 2 constituted double jeopardy because they were part of the same, single criminal episode. ECF Doc. 1 at 7. Cleveland exhausted this issue by raising it in his 3.850 motion which the circuit court denied with a written opinion on December 19, 2016. Because the First DCA issued a per curiam affirmance without written explanation of the denial of that Rule 3.850 motion, this Court will “look through” that decision to the circuit court's written opinion, which is the last related state-court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
The circuit court denied relief because “Defendant was charged and convicted of two counts of lewd or lascivious conduct based on two distinct acts: the act of unbuckling and unzipping S.T.'s pants, and then the separate and distinct act of asking S.T. to engage in sexual activity.” ECF Doc. 11-3 at 161. The circuit court's conclusion was not contrary to, and did not involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. 28 U.S.C. § 2254(d).
The Double Jeopardy Clause of the United States Constitution protects defendants from (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; or (3) multiple punishments for the same offense. Jones v. Thomas, 491 U.S. 376, 380-81 (1989).
Florida and federal law permit multiple punishments both for offenses committed during different criminal transactions or episodes and for separate offenses committed during one transaction or episode. Mosley v. Jones, 2018 WL 6982924, at *3 (11th Cir. Nov. 15, 2018) ().
To determine whether offenses were committed during one or more criminal episodes, a court examines “whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a temporal break between offenses.” State v. Paul, 934 So.2d 1167, 1172-73 (Fla. 2006) (quotations omitted) (concluding that sexual offenses committed in the living room and bedroom of victim's apartment were committed during separate criminal episodes), abrogated in part on other grounds by Valdes v. State, 3 So.3d 1067, 1074-77 (Fla. 2009).
“[T]he fact that the same victim is...
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