Colville v. Dixon

• Decision Date: 07 March 2022
• Docket Number: 3:21cv850/LAC/EMT
• Court: U.S. District Court — Northern District of Florida
• Parties: DAVID CRAIG COLVILLE, Petitioner, v. RICKY D. DIXON, Respondent.

DAVID CRAIG COLVILLE, Petitioner,
v.
RICKY D. DIXON, Respondent.

No. 3:21cv850/LAC/EMT

United States District Court, N.D. Florida, Pensacola Division

March 7, 2022

REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE.

Petitioner David Craig Colville (Colville) filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 7). Respondent (the State) filed an answer and relevant portions of the state court record (ECF Nos. 21, 22). Colville filed a reply (ECF No. 26).

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 the issues presented by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a), Rules Governing Section 2254 Cases. It is further the opinion of the undersigned that the pleadings and attachments before the court show that Colville is not entitled to habeas relief.

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I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

The relevant aspects of the procedural background of this case are established by the state court record (see ECF No. 22).^[1] Colville was charged in the Circuit Court in and for Santa Rosa County, Florida, Case No. 2014-CF-1376, with ten counts of sexual battery while in a position of familial or custodial authority (victim 12 years of age or older but less than 18 years of age) (Counts 1-10), one count of lewd or lascivious molestation (victim 12 years of age or older but less than 16 years of age) (Count 11), and one count of lewd or lascivious conduct (Count 12) (ECF No. 22-12 at 26-29 (amended information)). A jury trial was held on July 15-16, 2015 (ECF No. 22-2 at 26-85, ECF Nos. 22-3, 22-4, 22-5, 22-6 (transcript of jury trial)). The jury found Colville guilty as charged on all counts (ECF No. 22-12 at 48-51 (verdict)). On September 9, 2015, the court sentenced Colville to terms of thirty years in prison on Counts 1 through 10 and terms of fifteen years in prison on Counts 11 and 12, with all sentences to run consecutively (ECF No. 22-16 at 41-47 (judgment); ECF No. 22-24 at 315-49 (transcript of sentencing)). The court also designated Colville a sexual predator (ECF No. 22-16 at 51-52 (Order Designating Defendant as a Sexual Predator)).

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Colville filed a motion to correct sentencing error in the trial court, pursuant to Rule 3.800(b)(2) of the Florida Rules of Criminal Procedure (ECF No. 22-17 at 12-17 (Rule 3.800(b)(2) motion)). The trial court denied the motion (id. at 20-21 (order)).

Colville appealed the judgment and sentences to the Florida First District Court of Appeal (First DCA), Case No. 1D15-4529 (ECF No. 22-19 (Colville's initial brief); ECF No. 22-20 (State's answer brief); ECF No. 22-21 (Colville's reply brief)). On June 6, 2017, the First DCA affirmed the judgment and sentences per curiam without written opinion (ECF No. 22-22 (opinion)). Colville v. State, 227 So.3d 567 (Fla. 1st DCA 2017) (Table). The mandate issued June 22, 2017 (ECF No. 22-30 at 22 (mandate)).

On August 3, 2017, Colville filed a motion for mitigation and reduction of sentence in the state circuit court, pursuant to Rule 3.800(c) of the Florida Rules of Criminal Procedure (ECF No. 22-30 at 24-29 (Rule 3.800(c) motion)). The state court denied the motion in an order rendered on September 5, 2017 (id. at 33-34 (order)).

On June 4, 2018, Colville filed a counseled motion for post-conviction relief in the state circuit court, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (ECF No. 22-30 at 43-92 (Rule 3.850 motion)). Colville filed an

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amended Rule 3.850 motion on December 7, 2018 (id. at 816-66 (amended Rule 3.850 motion)). The circuit court held a limited evidentiary hearing on October 18, 2019 (ECF No. 22-30 at 2225 through ECF No. 22-31 at 26 (transcript of evidentiary hearing)). The circuit court denied Colville's amended Rule 3.850 motion in an order rendered on January 24, 2020 (ECF No. 22-31 at 39-54 (order)). Colville appealed the decision to the First DCA, Case No. D20-1776 (ECF No. 22-26 (Colville's initial brief); ECF No. 22-27 (State's answer brief); ECF No. 22-28 (Colville's reply brief)). The First DCA affirmed the circuit court's decision per curiam without written opinion on March 17, 2021 (ECF No. 22-29 (decision)). Colville v. State, 315 So.3d 1191 (Fla. 1st DCA 2021) (Table). The mandate issued May 28, 2021. Colville sought review in the Florida Supreme Court, Case No. SC21-759. On May 24, 2021, the Florida Supreme Court dismissed the case for lack of jurisdiction. Colville v. State, No. SC 21-759, 2021 WL 2259400, at *1 (Fla. May 24, 2021).

During the pendency of the Rule 3.850 proceeding and appeal, Colville filed numerous applications for post-conviction relief in the state courts.

On February 10, 2020, Colville filed a pleading in the Florida Supreme Court, Case No. SC20-193, which the court treated as a petition for writ of habeas corpus (see ECF No. 22-36 (pleading); ECF No. 22-31 at 409 (acknowledgement of new

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case)). On February 27, 2020, the Florida Supreme Court dismissed the case on the ground that the relief sought was not authorized (ECF No. 22-37 (order)). Colville v. State, No. SC20-193, at *1, 2020 WL 970340, at *1 (Fla. Feb. 27, 2020).

On February 26, 2020, Colville filed a petition for writ of prohibition in the Florida Supreme Court, Case No. SC20-296 (ECF No. 22-38 (petition); ECF No. 22-31 at 426 (acknowledgement of new case)). On April 3, 2020, the Florida Supreme Court dismissed the petition as facially insufficient (ECF No. 22-39 (order)). Colville v. State, No. SC20-296, 2020 WL 1656224, at *1 (Fla. April 3, 2020). Colville filed a motion for rehearing (ECF No. 44 (motion), which the court denied on July 1, 2020 (ECF No. 45 (order)). Colville v. State, No. SC20-296, 2020 WL 3578495, at *1 (Fla. July 1, 2020).

On April 17, 2020, Colville filed a Motion to Set Aside Judgment in the state circuit court (ECF No. 22-31 at 439-42 (motion)). The circuit court denied the motion as untimely, successive, and non-complaint with the requirements of Rule 3.850(c), (h), (n) (ECF No. 22-30 at 446-47 (order)). Colville appealed the decision to the First DCA, Case No. D20-1783 (ECF No. 22-32 at 2-12 (Colville's initial brief); ECF No. 22-33 (State's answer brief); ECF No. 22-34 (Colville's reply)). The First DCA affirmed the circuit court's decision per curiam without written opinion on December 10, 2020 (ECF No. 22-35 (decision)). Colville v. State,

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308 So.3d 565 (Fla. 1st DCA 2020) (Table). The mandate issued January 7, 2021. Colville sought review in the Florida Supreme Court, Case No. SC21-759 (ECF No. 22-46 (notice of appeal)). On May 24, 2021, the Florida Supreme Court dismissed the case for lack of jurisdiction (ECF No. 22-47 (order)). Colville v. State, No. SC21-759, 2021 WL 2259400, at *1 (Fla. May 24, 2021).

On May 22, 2020, Colville filed a petition for writ of habeas corpus in the state circuit court (ECF No. 22-31 at 491-94 (petition)). The state court dismissed the petition on June 3, 2020 (id. at 505-06).

On May 22, 2020, Colville filed a petition for writ of mandamus in the Florida Supreme Court, Case No. SC20-726 (ECF No. 22-42 (petition); ECF No. 22-31 at 483 (acknowledgement of new case)). On July 1, 2020, the Florida Supreme Court dismissed the petition as facially insufficient (ECF No. 22-43 (order)). Colville v. State, No. SC20-726, 2020 WL 3568242, at *1 (Fla. July 1, 2020).

On May 29, 2020, Colville filed a petition for writ of quo warranto in the Florida Supreme Court, Case No. SC20-759 (ECF No. 22-40 (petition); ECF No. 22-31 at 499 (acknowledgement of new case)). On July 1, 2020, the Florida Supreme Court denied the petition as procedurally barred (ECF No. 22-41 (order)). Colville v. State, No. SC20-759, 2020 WL 3568352, at *1 (Fla. July 1, 2020).

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On November 28, 2020, Colville filed a second Rule 3.850 motion in the state circuit court (see ECF No. 22-50 at 81-83 (order dismissing Rule 3.850 motion)). The state court dismissed the motion as untimely, procedurally barred, and successive in an order rendered on January 25, 2021 (id.). Colville appealed the decision to the First DCA, Case No. 1D21-421 (ECF No. 22-54 (Colville's initial brief)). On October 8, 2021, the First DCA barred Colville from further pro se filings in Case No. 1D21-421 and future pro se filings in the First DCA related to his criminal judgment and sentence (ECF No. 22-62 (order)). The court subsequently affirmed the circuit court's dismissal of the second Rule 3.850 motion, per curiam without written opinion. Colville v. State, No. 1D21-421, 2021 WL 6110517, at *1 (Fla. 1st DCA Dec. 27, 2021) (Table).

On January 14, 2021, Colville filed motions to correct illegal sentence in the state circuit court, challenging his sexual predator designation (ECF No. 22-50 at 27-28, 34-37 (motions)). The state court denied the motions in an order rendered on March 1, 2021 (id. at 171-72 (order)).

On February 5, 2021, Colville filed a third Rule 3.850 motion in the state circuit court (ECF No. 22-50 at 116-33 (Rule 3.850 motion)). The state court dismissed the motion as untimely and procedurally barred in an order rendered on February 22, 2021 (id. at 147-49 (order)). Colville appealed the decision to the First

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DCA, Case No. 1D21-0709 (ECF No. 22-51 (initial brief)). The First DCA affirmed the circuit court's decision on June 29, 2021, and warned Colville that any future filings that the court deemed frivolous may result in the imposition of sanctions (ECF No. 22-52 (decision)). Colville v. State, 324 So.3d 32, 33 (Fla. 1st DCA 2021) (Mem).

On March 26, 2021, Colville filed a pleading titled, “Nota Bene” in the Florida...