Duncan v. Sec'y, Fla. Dep't of Corr.
| Decision Date | 20 August 2021 |
| Docket Number | 3:18-cv-2099-MCR-GRJ |
| Parties | WILLIAM DUNCAN, Petitioner, v. SEC'Y, FLA. DEP'T OF CORR., Respondent. |
| Court | U.S. District Court — Northern District of Florida |
REPORT AND RECOMMENDATION
Petitioner initiated this case on September 11, 2018 when he filed his Petition for Writ of Habeas Corpus.[1] ECF No. 1. In his Petition Petitioner challenges his 2010 Escambia County, Florida convictions and sentences for burglary and arson, for which Petitioner is serving concurrent sentences of twenty-five (25) years. Id. at 1. Respondent filed a response in opposition, together with relevant portions of the state-court record. ECF No. 14. Petitioner filed a second amended reply memorandum, attempting to address Respondent's arguments. ECF No. 28.
Upon due consideration, it is respectfully RECOMMENDED that the Petition, ECF No. 1, be DENIED.[2]
The procedural history of this case is established in the state court records appended to Respondent's response. ECF No 14-1 to 25. Petitioner was charged in an Information in Escambia County, Florida with one count of burglary of a dwelling or structure (in violation of Fla. Stat §§ 810.02(1) and (2)(c)(2)) and one count of arson (in violation of Fla. Stat. § 806.01(1)(a)). Id. at 23.
The facts are as follows: In the early evening of January 24 2010, Escambia County Fire personnel responded to a structure fire in Pensacola, Florida and found a single-family wood-framed home ablaze. ECF No. 14-1 at 25 (). Finding no natural or accidental explanation for the fire, firefighters requested that the State Fire Marshal Bureau of Fire and Arson (SFM/BFA) investigate. Id. The SFM/BFA determined that the fire was caused by an open flame, originating in the living room. Id. The fire caused damage to the interior of the home in excess of $10, 000 and was intentionally set. Id. at 23 and 25.
SFM/BFA contacted the owner, who was not at home at the time of the fire. Id. at 25. The homeowner stated that one of the female occupants of the home had argued with a person named “Billy” before everyone left the home that night. Id.
Two days after the fire, SFM/BFA interviewed several eyewitnesses who placed Petitioner at the scene minutes before the fire broke out. Two neighbors saw Petitioner enter the home in question and remain inside for about two to three minutes before he departed by taxi. ECF No. 14-1 at 26. The taxi driver identified Petitioner as the person he picked up at the scene on the date and at the time in question. Id.
Petitioner was arrested and charged with two first-degree felonies (one count of burglary of a dwelling and one count of arson). Id. at 23. On February 25, 2010, the State filed Notice that it intended to seek Habitual Felony Offender (HFO) sentencing against Petitioner. Id. at 34. On April 19, 2010, Petitioner filed a pro se motion asking the court to allow him to represent himself and to “dispense” with his public defender. ECF No. 14-1 at 74-76. In the motion, Petitioner states: Id. at 75.
The court held a Faretta hearing contemporaneous with the filing of the motion, and the public defender appeared on Petitioner's behalf. See ECF 14-1 at 35-73. At the hearing, the court questioned Petitioner extensively about his reason for wanting to represent himself, his mental state, his understanding of the seriousness of the charges, and his understanding of his possible sentence as an HFO if convicted. Id. The court explained that proceeding to trial without the assistance of counsel presented enormous challenges, and Petitioner agreed that it would put him at a “serious disadvantage.” Id. at 50. Nonetheless, Petitioner told the court that he understood Id. at 52.
The court further warned Petitioner that if he represented himself and was convicted, he could not claim on appeal that he was due a new trial because of his own lack of legal knowledge, nor could he bring an ineffective assistance of counsel claim since he was “self-represented.” ECF No. 14-1 at 55-56. Petitioner responded, “Yes, sir, I understand.” Id. at 56. After lengthy examination, the court found that Petitioner understood the risks and disadvantages of self-representation and that Petitioner demonstrated that he “knowingly and intelligently” waived his right to counsel. Id. at 64. Nevertheless, the court ordered the public defender to represent Petitioner as “standby counsel” in the event Petitioner changed his mind, or the court later revoked his right to represent himself. Id. at 61-65.
Petitioner thereafter represented himself during a two-day jury trial. ECF No. 14-2 (trial transcript). Prior to jury selection, the court once again offered Petitioner the services of the public defender and Petitioner declined. Id. at 4. In the State's case-in-chief, eyewitnesses testified to the following: (1) that Petitioner entered the burned home minutes before the fire broke out, ECF No. 14-2 at 68-69, 80-81; (2) that Petitioner was the only person at the scene minutes before the fire broke out, id. at 80, 88; (3) that Petitioner threatened to do harm to the people living at the burned home, id. at 78-79[4]; (4) that Petitioner stated he was “glad” the house burned down, id. at 71, 74; and (5) that Petitioner admitted to neighbors Id. at 81. The State fire marshal also testified that the fire was intentionally set. Id. at 122. The homeowner testified that he did not give Petitioner permission to enter his home on the day of the fire. Id. at 49.
Petitioner's lone witness was the fire marshal, whom he questioned in an attempt to impeach the credibility of both the homeowner and the female occupant with whom he had argued. Id. at 171. Petitioner also questioned the fire marshal about Petitioner's own statements regarding his whereabouts on the night of the fire. Id. The jury found Petitioner guilty on both charges, and the court sentenced him as an HFO to twenty-five (25) years for each offense, with the sentences to run concurrently. ECF No. 14-1 at 171-72, 258-59.
Petitioner took three direct appeals. On the first direct appeal, Petitioner made two challenges. First, he argued that the trial court erred in not holding a Nelson hearing, as Petitioner's Faretta motion was really a request for substitute counsel and not a request for self-representation.
ECF No. 14-3 at 3. Second, he argued that the sentencing court erred by not renewing the offer of counsel prior to sentencing. Id. The Florida First District Court of Appeal (1st DCA) upheld both convictions but remanded the sentences because the trial court had not renewed its offer of counsel prior to sentencing. See Duncan v. State, 76 So.3d 1119 (Fla. 1st DCA 2011) (per curiam) and ECF No. 14-12 at 42. On remand, Petitioner requested the assistance of counsel for sentencing. ECF No. 14-1 at 72. After some “competency issues” described at ECF 14-7 at 65-66, the trial court found Petitioner competent to be sentenced. Id. at 72. The court imposed the same 25-year sentence with credit for time served. Id. at 84, 92-95.
In his second direct appeal, Petitioner argued that the trial court erred in finding Petitioner competent for sentencing because two medical doctors found him to be incompetent. ECF No. 14-10. Petitioner also argued that the sentencing court erred in sentencing Petitioner to the same 25-year sentence without being sufficiently familiar with the case. Id. The State conceded error on the first issue, rendering the second issue moot. Id. 8. The 1st DCA reversed the sentences and ordered another competency hearing. See Duncan v. State, 115 So.3d 1121 (Fla. 1st DCA 2013) (per curiam) and ECF 14-12 at 58-59. On remand, Petitioner was evaluated and found to be competent for sentencing. Id. at 68. He was sentenced to 25-years imprisonment for each offense, to run concurrently with credit for time served. Id. at 69-70, 77-71. In his third direct appeal, appellate counsel filed an Anders brief. ECF No. 14-13. Petitioner was permitted to file a pro se brief, which he failed to do. ECF No. 14-15 at 3. The 1st DCA affirmed per curiam. ECF No. 14-16 at 2.
In his state habeas petition filed under Fla. R. Crim. P. 9.141(d), Petitioner argued that he was denied his Sixth Amendment right to effective assistance of appellate counsel. He advanced five grounds in support of his claim: (1) counsel failed to argue that the trial court erred by conducting a Faretta hearing rather than ordering a competency evaluation; (2) counsel failed to attack the trial court's failure to address seven pro se pretrial motions; (3) counsel failed to include the transcript of the hearing on the Nelson motion in the record on appeal; (4) counsel failed to include the transcript of the hearing on Petitioner's motion to represent himself in the record on appeal; and (5) counsel failed to argue that the transcripts showed the trial court failed to renew an offer of counsel immediately prior to trial. ECF No. 14-17 at 4-9.
The 1st DCA denied the petition on the merits without a published opinion in Duncan v. State, 192 So.3d 681 (Fla. 1st DCA 2016) and ECF...
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