Davis v. Inch
| Decision Date | 09 June 2021 |
| Docket Number | 19-20858-CV-MOORE |
| Parties | PHILLIP DAVIS, Petitioner, v. MARK S. INCH, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
Phillip Davis, Pro Se.
REPORT OF MAGISTRATE JUDGE RE FEDERAL HABEAS CORPUS PETITION - 28 U.S.C. § 2254
Petitioner, Phillip Davis, has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, attacking the constitutionality of his convictions for one count of organized scheme to defraud, one count of aggravated white collar crime, two counts of grand theft of $20, 000 but less than $100, 000, and five counts of money laundering entered following a jury verdict in Miami-Dade County Circuit Court, No. F05-31344A. [ECF No. 22]. This case has been referred to the Undersigned pursuant to 28 U.S.C. §§ 636(b)(1)(B), (C) and S.D. Fla. Admin. Order 2019-02. [ECF No. 2].
The Undersigned has reviewed the record, including the Amended Petition [ECF No. 22], the Response with supporting appendix [ECF No. 28], and Petitioner's Reply [ECF No. 29]. For the following reasons, the Amended Petition should be DENIED.
Construing the arguments liberally pursuant to Haines v. Kerner, 404 U.S. 419, 520-21 (1972) (per curiam), Petitioner raises six grounds for relief, five challenging counsel's effectiveness and one of trial court error, as follows:
1. Trial counsel failed to move to disqualify Miami-Dade County Circuit Court Judge Beatrice Butchko, the judge who presided over Petitioner's trial, on the basis of bias, which resulted in a violation of Petitioner's right to a fair trial. [ECF No. 22 at 4].
2. Appellate counsel was ineffective for failing to argue on appeal that Count 2 of the Information was fatally defective in that it did not charge a crime, so Petitioner is actually innocent as to Count 2. [Id. at 7].
3. Trial counsel failed to seek dismissal of Count 2 on the basis that it was fatally defective because it did not charge a crime. [Id. at 12].
4. Trial counsel failed to retain and call an expert forensic accountant to testify at trial to rebut the state's expert and evidence, in light of Petitioner's actual innocence. [Id. at 13].
5. Trial counsel failed to request a good faith defense instruction. [Id. at 17].
6. The trial court erred in denying Petitioner's motion to disqualify Miami-Dade Circuit Court Judge Milton Hirsch, the post-conviction judge presiding over Petitioner's Fla. R. Crim. P. 3.850 Motion, on the basis that the judge was biased. [Id. at 18].
Petitioner was found guilty, following a jury trial, of an organized scheme to defraud, in the aggregate value of $50, 000 or more, in violation of Fla. Stat. §§ 777.034(4)(A) and 777.01 (Count 1); aggravated white collar crime, in violation of Fla. Stat. §§ 777.0844(5) and 777.011 (Count 2); two counts of grand theft of more than $20, 000, but less than $100, 000, in violation of Fla. Stat. §§ 812.014(2) and 777.011 (Counts 3, 4); and five counts of money laundering, in violation of Fla. Stat. §§ 896.101(3), (5)(A) and 777.011 (Counts 6-10). [ECF No. 28-2, Ex. D at 124-55; ECF No. 28-3, Ex. E at 2-4]. He was adjudicated guilty and sentenced to a total term of twenty years of imprisonment, with sentences suspended on all counts, except Count 2, and ten years of probation. [ECF No. 28-3, Ex. E at 2-4; ECF No. 28-4, Ex. F at 6-7].
Petitioner's conviction arose from an investigation which revealed Petitioner had engaged in an organized scheme to defraud and had committed grand theft of grant money received from the Miami-Dade Housing Agency to fund a company he operated.[1]
Petitioner appealed, raising five claims of trial court error. [ECF No. 28-3, Ex. H at 11-56]. The Third District Court of Appeal affirmed the convictions and sentences in a published, written opinion. See Davis v. State, 126 So.3d 357 (Fla. 3rd DCA 2013), [ECF No. 28-3, Ex. K at 133]. Rehearing was denied on June 11, 2013. [ECF No. 28-3, Ex. M. at 155]. Discretionary review was denied by the Florida Supreme Court on October 11, 2013 in a written, but unpublished opinion. See Davis v. State, 129 So.3d 1067 (Fla. 2013), [ECF No. 28-4, Ex. Q at 35]. His conviction became final on January 9, 2014, when the ninety-day period for seeking certiorari at the United States Supreme Court expired. See Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012).
Petitioner filed a state petition for writ of habeas corpus raising claim 2 of this federal petition on May 3, 2014.[2] [ECF No. 28-4, Ex. S at 52-76]. The Third District Court of Appeal summarily denied the petition in an unpublished opinion. See Davis v. State, 58 So.3d 588 (Fla. 3rd DCA 2014), [ECF No. 28-4, Ex. T at 84]. Rehearing and rehearing en banc were denied on July 29, 2014. [ECF No. 28-5, Ex. V at 2].
Next, in January 2015, Petitioner filed his first motion pursuant to Fla. R. Crim. P. 3.850 (“Rule 3.850 Motion”), raising multiple claims, including claims 1, 3, 4, and 5. [ECF No. 28-5, Ex. W at 4-52]. He filed an Amended Rule 3.850 Motion relating to claim 4. [ECF No. 28-5, Ex. Y at 118-32]. Orders were entered summarily denying claims 1, 3, and 5, and following two evidentiary hearings, a final order was entered denying, in pertinent part, claim 4. [ECF Nos. 28-5, Ex. X at 99-116; Ex. Z at 134-37; ECF No. 28-7, Ex. BB at 2-19].
In the interim, prior to the Rule 3.850 evidentiary hearing, Petitioner filed a motion raising claim 6, in which he sought to disqualify Miami-Dade County Circuit Court Judge Milton Hirsch from continuing to preside over his Rule 3.850 proceeding. [ECF No. 28-6, Ex. AA at 2-11]. The motion was denied at a December 15, 2015 hearing. [ECF No. 28-22 at 1-79].
Petitioner appealed the denial of his Rule 3.850 motions and the denial of his motion to disqualify Judge Hirsch. [ECF No. 28-8, Ex. DD at 5-61]. On February 27, 2019, the Third District Court of Appeal per curiam affirmed the denials, citing Strickland v. Washington, 466 U.S. 668, 687 (1984) and other state court cases regarding imperfections in a charging instrument. See Davis v. Florida, 271 So.3d 96 (Fla. 3rd DCA 2019) (per curiam), [ECF No. 28-8, Ex. GG at 141-42]. The proceeding concluded when the mandate issued on March 19, 2019. [ECF No. 28-8, Ex. HH at 143].
Before the above Rule 3.850 proceedings concluded, Petitioner filed his initial § 2254 Petition in this Court on February 28, 2019. [ECF No. 1 at 1] and, less than a week later, filed an Amended Petition on March 5, 2019. [ECF No. 9: 1]. After requesting and being granted permission to file another amendment, subject to application of Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000)[3] and other procedural bars and defenses, Petitioner filed his operative, Second Amended Petition, raising claims 1 through 6, as listed above. [ECF No. 22 at 1]. The claims raised in this Amended Petition relate back to his earlier petition.
Respondent concedes the Petition is timely because there was less than one-year of un-tolled time during which no post-conviction proceedings were pending from the time Petitioner's conviction became final and the filing of this case. [ECF No. 28 at 18].
Respondent also concedes correctly that claims 1 through 6 have been properly exhausted in the state courts, having been raised in the Rule 3.850 proceeding, the state habeas corpus proceeding, and/or a post-conviction motion to disqualify the presiding judge. [ECF No. 28 at 21, 24, 27, 30, 33]. Because the claims raised in this federal petition were raised to the state's highest court, either in a state habeas corpus petition, a Rule 3.850 proceeding and appeal therefrom, or a motion to disqualify his post-conviction judge and an appeal therefrom, the claims are properly exhausted and ripe for federal habeas corpus review. See Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 456-59 (11th Cir. 2015) (citations omitted).
The Court is bound by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) which requires the Court use a “highly deferential standard for evaluating state-court rulings and demands that [they] be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (quotation marks and citation omitted); see also Lee v. Comm'r, Ala., Dep't of Corr., 726 F.3d 1172, 1192 (11th Cir. 2013) (citations omitted). Deferential review under § 2254(d) is generally limited to the record that was before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see also Griffin v. Sec'y, Dep't of Corr., 787 Fed.Appx. 564, 567 (11th Cir. 2019) (citing Cullen, 563 U.S. at 181).
The Court may not grant relief on any claim adjudicated on the merits in state court unless the state court's decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see also Harrington v. Richter, 562 U.S. 86, 98 (2011) (quoting § 2254(d)); Rimmer v. Sec'y, Fla. Dep't of Corr., 876 F.3d 1039, 1053 (11th Cir. 2017) (accord).
A state court decision is “contrary to” clearly established federal law if it applies a rule that contradicts the governing law set forth by the United States Supreme Court, or arrives at a result that differs from Supreme Court precedent when faced with materially indistinguishable facts. See Id. (quoting Bell v. Cone, 535 U.S 685, 694 (2002)...
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