Dean v. Sec'y
| Decision Date | 27 September 2011 |
| Docket Number | CASE NO. 6:07-cv-1461-Orl-31DAB |
| Parties | MICHAEL DEAN, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section 2254 (Doc. No. 1). Thereafter, the Court concluded that the petition was untimely filed, and Petitioner appealed. The Eleventh Circuit Court of Appeals reversed and remanded with instructions that the State be provided an opportunity to overcome the presumption that Petitioner's Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence was filed on June 24, 2003. (Doc. No. 30 at 13.) On remand, Petitioner filed a motion to amend his habeas petition, which the Court granted. See Doc. Nos. 34 & 35. Respondents filed a response to the amended petition in compliance with this Court's instructions (Doc. No. 38). Petitioner filed a reply to the response (Doc. No. 42).
Petitioner alleges seven claims for relief in his amended petition: (1) the State committed fraud on the state court and defense counsel by intentionally misrepresenting the filing date of the amended information, (2) trial counsel rendered ineffective assistanceby failing to object to the in-court and out-of-court identifications of Petitioner by the three victims, (3) trial counsel rendered ineffective assistance by failing to file a timely motion to dismiss the amended information, (4) trial counsel rendered ineffective assistance by failing to object to the amended information and request a severance of the offenses prior to or during trial, (5) trial counsel rendered ineffective assistance by failing to object to a fundamental error in the jury instructions, (6) trial counsel rendered ineffective assistance by failing to object to a vague jury instruction, and (7) the trial court's denial of Petitioner's motion to correct illegal sentence was error.
Petitioner was charged by amended information with two counts of robbery with a deadly weapon (counts one and three), one count of attempted robbery with a deadly weapon (count two), and one count of fleeing or attempting to elude a law enforcement officer at high speed (count four). A jury trial was conducted, and Petitioner was found guilty of two counts of robbery with a deadly weapon, one count of attempted robbery with a deadly weapon, and the lesser-included offense of fleeing or attempting to elude a law enforcement officer after lights and sirens had been activated. The trial court sentenced Petitioner to life in prison as to counts one and three, to a thirty-year term of imprisonment as to count two, and to a five-year term of imprisonment as to count four. Petitioner appealed, and the Fifth District Court of Appeal of Florida per curiam affirmed on November 19, 2002.
Petitioner filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief on December 1, 2004, which he subsequently amended.1 The trial court denied the amended motion and Petitioner's motion for rehearing, and Petitioner appealed. The state appellate court per curiam affirmed on August 8, 2006. Mandate was issued on October 6, 2006. (App. F at 115.)
While his Rule 3.850 motion was pending, on December 5, 2004, Petitioner filed a state habeas petition. (App. G at 44.) The Fifth District Court of Appeal of Florida denied the petition on February 4, 2005. (App. G at 168.) Petitioner filed a motion for rehearing, which was denied on March 17, 2005. (App. G at 177.)
On September 29, 2006, Petitioner filed a pleading with the state trial court demanding performance, wherein he sought a ruling on his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. (App. H at 1-8.) Petitioner asserted that his Rule 3.800(a) motion was filed on June 24, 2003. On October 30, 2006, the trial court struck Petitioner's demand for performance noting that "neither the case files nor the Clerk's computer contains any indication that [Petitioner] ever filed such a motion." (App. H at 9.)
On November 13, 2006, Petitioner filed a motion to accept his Rule 3.800(a) motionnunc pro tunc. (App. H at 10.) On December 15, 2006, the trial court denied the Rule 3.800(a) motion and determined that the motion was filed on November 22, 2006. (App. H at 19-22.) Petitioner appealed, and the state appellate court per curiam affirmed on March 20, 2007. (App. H at 37.) Mandate was issued on May 21, 2007. (App. H at 51.)
Petitioner initiated this action on September 7, 2007. While the instant action was pending, on September 30, 2008, Petitioner filed a second Rule 3.850 motion in the state court. (Doc. No. 38-1 at 11.) The state court summarily denied the Rule 3.850 motion, and Petitioner appealed. The Fifth District Court of Appeal of Florida affirmed per curiam. Mandate was issued on March 15, 2010. Petitioner filed his amended petition for writ of habeas corpus in this Court on March 10, 2010.2
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).
"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.
Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincingevidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.3 Id. at 687-88. A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:
has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in
whether the adversarial process at trial, in fact, worked adequately. White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted), cert. denied, 514 U.S. 1131 (1995). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
Petitioner asserts that the State committed fraud on the state court and defense counsel by intentionally misrepresenting the filing date of the amended information. Respondents contend that claim one of the amended petition does not relate back to the original petition and thus is not timely.
On the date Petitioner filed his initial federal habeas petition, September 7, 2007, 236 days of the...
To continue reading
Request your trial