Croft v. Sec'y, Dep't of Corr., Case No. 8:11-cv-58-T-17TGW

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtELIZABETH A. KOVACHEVICH
PartiesDAVID DEAN CROFT, Now Known As DAVID DARK HORSE, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
Docket NumberCase No. 8:11-cv-58-T-17TGW
Decision Date17 October 2011

DAVID DEAN CROFT,
Now Known As DAVID DARK HORSE, Petitioner,
v.
SECRETARY,
DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:11-cv-58-T-17TGW

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: October 17, 2011


ORDER

This cause is before the Court on Croft's 28 U.S.C. § 2254 petition. Croft challenges his plea-based conviction and life sentence for first degree murder which arises out of the Sixth Judicial Circuit, Pinellas County, Florida, in case no. 83-04772. (Doc. 1). A review of the record demonstrates that, for the following reasons, the present petition must be denied.

PROCEDURAL HISTORY

In 1983, Croft was indicted in case no. 83-04772 for his role in the brutal slaying of P.F., a 15-year-old girl. Croft's codefendant, Jeff Murphy, was found guilty of first degree murder after a jury trial and sentenced to life in prison. Subsequently, on August 18, 1984, Croft pled guilty to first degree murder, and the state waived the death penalty. Adjudicated guilty as charged, Croft was sentenced to life in prison without eligibility for parole for a minimum mandatory prison term of 25 years. Croft did not appeal his judgment.

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More than two years after his judgment became final, Croft filed a pro se rule 3.850 motion for postconviction relief dated February 9, 1988. Therein, he claimed, among other things, his trial counsel led him to believe that by pleading guilty, he would be out of prison in five years. In the same ground, he asserted he did not understand what life with a mandatory 25-year prison term meant. Applying rule 3.850's time limitation, the state trial court dismissed Croft's motion as untimely filed -- a ruling which was per curiam affirmed on April 20, 1988. Croft v. State, 525 So. 2d 886 (Fla. 2d DCA 1988)[table].

On August 11, 1988, Croft filed a pro se 28 U.S.C. § 2254 petition for writ of habeas corpus in case no. 88-1241-CIV-T-15C. After Croft was appointed counsel, the parties filed a pre-evidentiary stipulation reflecting that Croft's grounds included his contentions that Croft's plea was coerced by his trial counsel and was not knowingly and voluntarily entered, and his counsel did not fully inform him of the consequences of his plea, his options, and his right to appeal. In response, the Respondent maintained, and Croft's counsel conceded, the grounds were procedurally barred. The Magistrate Judge recommended dismissal for Croft's failure to exhaust cause to excuse his procedural default.1 Adopting the report and recommendation of the Magistrate Judge, the Honorable William J. Cartagena dismissed Croft's first-filed federal petition without prejudice. Judgment was entered August 6, 1990.

On February 15, 2000, Croft filed a pro se petition for belated appeal in state court. On March 27, 2000, the state district court of appeal denied the petition without written decision in case no. 2D00- 456. Croft v. State, 767 So. 2d 1213 (Fla. 2d DCA 2000)[table]. After seeking rehearing, Croft took a voluntary dismissal on September 11, 2000. Croft v. State, 767 So. 2d 1213 (Fla. 2d DCA 2000) [table].

Croft filed a pro se "amended" rule 3.850 motion for postconviction relief or in the alternative, petition for writ of habeas corpus dated July 19, 2000. Finding that Croft did

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not meet Florida's newly discovered evidence exception to rule 3.850's two-year time limit, the state trial court denied the rule 3.850 motion as untimely-filed and declined to consider such as a petition for writ of habeas corpus. Croft appealed, and on January 12, 2001, the state appellate court affirmed without written decision in case no. 2D00- 3659. Croft v. State, 782 So. 2d 873 (Fla. 2d DCA 2001)[table]. The mandate issued February 5, 2001.

Croft filed a pro se 28 U.S.C. § 2254 petition dated November 13, 2001, in case no. 8:01-CV-2169-T-17EAJ. Croft's second-filed petition was dismissed for Croft's failure to remit the filing fee. Judgment was entered December 19, 2001.

On December 2, 2002, Croft filed a pro se motion to correct illegal sentence pursuant to Fla.R.Crim.P. 3.800(a). On March 7, 2003, the state district court of appeal affirmed the state trial court's denial of relief in case no. 2D03-25. Darkhorse v. State, 840 So. 2d 232 (Fla. 2d DCA 2003)[table]. The mandate issued April 3, 2003.

By then, Croft had filed another pro se rule 3.850 motion dated March 19, 2003. Finding that Croft's allegations had been previously addressed, the state trial court denied the rule 3.850 motion as successive. Croft appealed, and on September 24, 2003, the state district court of appeal per curiam affirmed the denial of relief in case no. 2D03-2369. Darkhorse v. State, 860 So. 2d 417 (Fla. 2d DCA 2003)[table]. The mandate issued October 20, 2003.

Croft filed a pro se petition for writ of habeas corpus in the circuit court in Miami-Dade County. On June 11, 2008, the state district court of appeal, in case no. 3D07-2762 affirmed, stating: We affirm the lower court's denial of the petition for writ of habeas corpus. Our affirmance, however, is without prejudice to appellant filing any appropriate challenges to his convictions or sentences pursuant to Florida Rule of Criminal Procedure 3.850 or 3.800 in the judicial circuit in which these convictions and sentences were rendered [FN1] and/or to file any appropriate action against the Florida Parole Commission for relief. [FN2]

FN1. See Gilbert v. State, 972 So.2d 904 (Fla.3d DCA 2007); Broom v. State, 907 So.2d 1261 (Fla. 3d DCA 2005).

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FN2. See Sheley v. Fla. Parole Comm'n, 720 So.2d 216 (Fla. 1998).

Dark Horse v. State, 984 So. 2d 610 (Fla. 2d DCA 2008).

Croft then filed a pro se Fla.R.Crim.P. 3.850 motion for postconviction relief dated September 22, 2008. Therein, the state made an agreement to give him the opportunity for parole after 25 years. (Resp. Ex. 50 at 4) He claimed the state prosecutor recommended parole be denied and in so doing, denied him the opportunity for parole, breaching the terms of his plea agreement. In addition, he claimed his parole hearing was illegal and the result predetermined. By order rendered October 29, 2008, the state trial court transferred the rule 3.850 motion to the Judicial Circuit Court in Leon County, Florida. Croft sought rehearing. In an order denying rehearing, the state trial court addressed his ground, finding that regardless of the state's position, Croft was eligible for parole after 25 years and he had the opportunity to request parole.

Croft appealed, and on December 9, 2010, the state district court of appeal per curiam affirmed the state trial court's denial of rule 3.850 relief in case no. 2D09-465. Croft v. State, 25 So. 3d 1233 (Fla. 2d DCA 2009)[table]. Following denial of rehearing, the mandate issued February 2, 2010.

Upon transfer of his rule 3.850 motion, Croft took a voluntary dismissal, concluding the state trial court had no jurisdiction to review his proceedings. Accordingly, his rule 3.850 motion was dismissed by order rendered in case no. 2008 CA003699.

Croft filed another pro se rule 3.850 motion dated January 27, 2010. Pointing out that his issue was previously addressed in the order denying rehearing, the state trial court reiterated that Croft had an opportunity for parole and a hearing was held on his parole request. With respect to Croft's claim that the state, in recommending denial of parole, reneged on its promise and he was denied the opportunity for parole, the claim was rejected as meritless. The state trial court again pointed out that regardless of the state's position, Croft was eligible for parole after 25 years and he had the opportunity to request

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parole before the Florida Parole Commission. Croft appealed the summary denial, and on November 3, 2010, the state district court of appeal per curiam affirmed the state trial court's decision in case no. 2D10-1696. Croft v. State, 49 So. 3d 241 (Fla. 2d DCA 2010)[table]. Following denial of rehearing, the mandate issued December 16, 2010.

Present Petition Is Time-Barred

The instant pro se 28 U.S.C. § 2254 petition, which reflects that the petition was delivered to prison officials for mailing on December 21, 2010, raises one ground for relief. According to Croft, he was informed by his attorney that by entering his plea, he would serve 25 years in prison; on the other hand, if he tried his case and was found guilty of second degree murder, he would receive a 99-year prison sentence, on which he would serve 33 years (under then applicable state provisions regarding retention of jurisdiction). Croft contends the prosecutor breached negotiated plea terms at a parole hearing held January 31, 2007. (Doc. 1 at 6).

In his habeas memorandum, Croft alleges he was told by his counsel that if he took the plea and stayed out of trouble, he could be home on clemency in five years. Croft then asserts the prosecutor "waived the death penalty on the assurance Dark Horse served twenty-five 25 years under the Life Imprisonment Statute" ... lending more credence to 18-year old Dark Horse's belief and understanding that he would be released after 25 years based upon the plea agreement." (Memo at 3).

Croft's petition is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") effective April 24, 1996. The AEDPA established a one-year statute of limitations for federal habeas...

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