Depriest v. Sec'y

• Decision Date: 03 July 2017
• Docket Number: Case No. 3:14-cv-756-J-34JBT
• Parties: JON DUKE DEPRIEST, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

JON DUKE DEPRIEST, Petitioner, v. SECRETARY, FLORIDA DEPARTMENTOF CORRECTIONS, et al., Respondents.

Case No. 3:14-cv-756-J-34JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

July 3, 2017

ORDER

I. Status

Petitioner Jon Duke DePriest, an inmate of the Florida penal system, initiated this action on June 25, 2014, by filing a pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28 U.S.C. § 2254. In the Petition, DePriest challenges a 2011 state court (Nassau County, Florida) judgment of conviction for dealing in stolen property. Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Answer in Response to Order to Show Cause and Petition for Habeas Corpus (Response; Doc. 12) with exhibits (Resp. Ex.). On September 25, 2014, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. 8), admonishing DePriest regarding his obligations and giving DePriest a time frame in which to submit a reply. DePriest submitted a brief in reply. See Reply to Respondents' Answer (Reply; Doc. 16); Notice of Supplemental Authority (Doc. 19). This case is ripe for review.

II. Procedural History

On February 8, 2011, the State of Florida, in case number 2010-CF-1004, charged DePriest with burglary of a dwelling (count one) and dealing in stolen property (count two). See Resp. Ex. A at 21-22, Amended Information. DePriest proceeded to trial in March 2011, see Resp. Exs. C, D, Transcripts of the Jury Trial (Tr.), at the conclusion of which, on March 14, 2011, a jury found him guilty of dealing in stolen property (count two), see Resp. Ex. A at 79, Verdict, and not guilty of burglary (count one), see id. at 78, Verdict. On April 7, 2011, the court sentenced DePriest to a term of imprisonment of thirty years. See id. at 184-93, Judgment; Resp. Ex. F, Transcript of the Sentencing Proceeding.

On direct appeal, DePriest, with the benefit of counsel, filed an initial brief, arguing that the trial court erred when it failed to give a special jury instruction (as requested by DePriest) expanding the inference permitted if the defendant is found in possession of recently stolen goods. Resp. Ex. G. The State filed an answer brief, see Resp. Ex. H, and DePriest filed a reply brief, see Resp. Ex. I. On December 19, 2011, the appellate court affirmed DePriest's conviction per curiam, see DePriest v. State, 76 So.3d 294 (Fla. 1st DCA 2011); Resp. Ex. J, and the mandate issued on January 17, 2012, see Resp. Ex. K.

On November 5, 2012, DePriest filed a pro se petition for writ of habeas corpus. In the petition, he asserted that appellatecounsel (Assistant Public Defender David A. Davis) failed to raise the following issues on direct appeal: the trial court erred when it allowed the testimonial hearsay statements of Michelle Dotson (a non-testifying witness) over a defense objection (claim one); fundamental error occurred when the prosecutor made improper opening and closing arguments (claim two); there was insufficient evidence to support the conviction for dealing in stolen property (claim three); and the trial court abused its discretion when it permitted the State to introduce Williams¹ rule evidence and allow the evidence to become a feature of the trial (claim four). Resp. Exs. L, M. The appellate court directed the State to show cause why the petition should not be granted. See Resp. Ex. O. The State responded, see Resp. Exs. P; Q, and Petitioner replied, see Resp. Ex. R. The appellate court denied the petition on the merits on June 28, 2013. See DePriest v. State, 115 So.3d 1110 (Fla. 1st DCA 2013); Resp. Ex. S.

On September 6, 2013, pursuant to the mailbox rule, DePriest filed a pro se motion for post-conviction relief pursuant toFlorida Rule of Criminal Procedure 3.850 (Rule 3.850 motion). See Resp. Ex. T. In his request for post-conviction relief, he asserted that counsel (Harrison W. Poole) was ineffective because he failed to: adequately investigate and call Nikki Dotson and Michelle Dotson as witnesses at trial (ground one); locate Michelle Dotson (ground two); cross-examine Detective Rose about her investigative report (ground three); ensure that Deputy Kelly was properly notified of the trial date and available to testify for the defense (ground four); advise DePriest of the negative impact of not calling Deputy Kelly to testify (ground five); file a motion to suppress the recorded telephone conversation between DePriest and Michelle Dotson and object to the prosecutor's interpretation of the inaudible portions of the recording (ground six); request a court order to compel the State to provide the defense with incriminating statements made by Michelle Dotson (ground seven); argue a legally sufficient motion for judgment of acquittal (ground eight); and seek a continuance of the trial based on his assertions in grounds one, two, three, six and seven (ground nine). See Resp. Exs. T at 1-26; U. Additionally, he stated that counsel's "strategy of doing nothing" and cumulative error constitutes ineffectiveness (ground ten). Resp. Ex. T at 24. The court denied the motion on September 11, 2013. See id. at 27-55. On appeal, DePriest filed a pro se brief, see Resp. Ex. V, and the State filed a notice that it would not file an answer brief, see Resp. Ex. W. On March 24, 2014,the appellate court affirmed the court's denial of post-conviction relief per curiam, see DePriest v. State, 136 So.3d 1217 (Fla. 1st DCA 2014); Resp. Ex. X, and denied DePriest's motion for rehearing, see Resp. Exs. Y; Z. The mandate issued on May 23, 2014. See Resp. Ex. AA.

III. One-Year Limitations Period

The Petition appears to be timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the need for a federal evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). "In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, No. 16-8668, 2017 WL 1346407 (June 12, 2017). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record before the Court. Because this Court can "adequately assess[DePriest's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a state prisoner's federal petition for habeas corpus. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S. Ct. 1432 (2017). "'The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.'" Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of final state court decisions is "'greatly circumscribed' and 'highly deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court decision, if any, that adjudicated the claim on the merits. See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc), cert. granted, 137 S. Ct. 1203 (2017); Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). Regardless of whether the last state court provided a reasoned opinion, "it may be presumed that the state court adjudicated the claim on the merits in the absence of anyindication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011) (citation omitted); see also Johnson v. Williams, 568 U.S. 289, --, 133 S. Ct. 1088, 1096 (2013).² Thus, the state court need not issue an opinion explaining its rationale in order for the state court's decision to qualify as an adjudication on the merits. See Richter, 562 U.S. at 100.

If the claim was "adjudicated on the merits" in state court, § 2254(d) bars relitigation of the claim 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); Richter, 562 U.S. at 97-98. As the Eleventh Circuit has explained:

First, § 2254(d)(1) provides for federal review for claims of state courts' erroneous legal conclusions. As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two distinct clauses: a "contrary to" clause and an "unreasonable application" clause. The "contrary to" clause allows for relief only "if the state court arrives at a conclusion opposite to thatreached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Id. at 413, 120 S. Ct. at 1523 (plurality opinion). The "unreasonable application" clause allows for relief only "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the

...