Ellard v. Fla. Comm'n of Offender Review, 3:20cv5520/MCR/EMT

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
PartiesJAMES ELLARD, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
Docket Number3:20cv5520/MCR/EMT
Decision Date29 July 2021

REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE

Petitioner James Ellard (Ellard) filed an amended habeas petition under 28 U.S.C. § 2254 (ECF No. 7). The Florida Commission on Offender Review (FCOR) filed an answer and relevant portions of the state court record (ECF No. 10). Ellard filed a reply (ECF No. 14).

The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B)-(C) and Fed.R.Civ.P. 72(b). After careful consideration of the issues presented by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a), Rules Governing Section 2254 Cases. It is further the opinion of the undersigned that Ellard is not entitled to federal habeas relief.

I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

The relevant aspects of the procedural background of this case are established by the state court record (see ECF No. 10).[1] Ellard was charged in the Circuit Court in and for Escambia County, Florida, No. 1992-CF-3246, with one count of sexual battery on an 11-year old child (Count One) and two counts of sexual activity with a 12-year old child, while in a position of familial or custodial authority (Counts Two and Three) (ECF No. 10-6 at 18-19 (Amended Information)). Ellard entered a plea of nolo contendere to Count Three (see Id. at 20 (Judgment)). On February 1, 1993, the trial court adjudicated Ellard guilty and sentenced him to thirty years in the Florida Department of Corrections (FDOC), with 206 days of jail credit (id.).

On May 27, 1993, Ellard was convicted in the United States District Court for the Northern District of Florida, No. 3:92cr3132/RV/CJK, of one count of possession of a firearm by a convicted felon (ECF No. 10-3 at 19-22 (Judgment)). The federal court sentenced Ellard to 180 months in prison, to run consecutively to the state prison sentence imposed in No. 92-3246, followed by a 5-year term of supervised release (id.). In September 2016, Ellard's federal sentence was reduced to 120 months in prison followed by a 3-year term of supervised release (see ECF No. 10-6 at 49-55 (Request for Modifying the Conditions or Terms of Supervision with Consent of the Offender; Waiver of Hearing to Modify Conditions of Probation/Supervised Release or Extend Term of Supervision)).

On July 20, 2005, the FCOR ordered Ellard to be released from the Florida Department of Corrections (FDOC) on September 9, 2005, the tentative release date established by the FDOC, and placed on conditional release supervision until July 3, 2022, upon expiration of the maximum period for which he was sentenced (see ECF No. 10-6 at 34 (Order of Conditional Release); ECF No. 10-6 at 36-41 (Certificate of Conditional Release and Terms and Conditions of Supervision)).

On August 30, 2005, Ellard was instructed on the conditions of his conditional release supervision and informed that he would be on conditional release supervision until July 3, 2022, unless the FCOR otherwise released him or took other action (ECF No. 10-6 at 36-41 (Certificate of Conditional Release and Terms and Conditions of Supervision)). Special Condition 15 instructed Ellard as follows:

You will be delivered to the custody of the United States Marshall [sic]-Tallahassee in accordance with the detainer (92-03131-Poss. FA[firearm] by Felon-18[0] MOS [months]) placed with the Department of Corrections of the State of Florida. If you should be released from the above authorities at any time during the duration of your conditional release, you shall report to your conditional release supervisor within 5 [sic].

(ECF No. 10-6 at 39 (Certificate of Conditional Release and Terms and Conditions of Supervision)). Ellard refused to sign the Certificate of Conditional Release and Terms and Conditions of Supervision, and his refusal to sign was witnessed by an FDOC staff member (ECF No. 10-6 at 36-41 (Certificate of Conditional Release and Terms and Conditions of Supervision)).

On September 9, 2005, Ellard was released from the FDOC to the custody of federal officials for transportation to a federal Bureau of Prisons (BOP) institution for service of his federal sentence (see ECF No. 10-6 at 44 (FDOC Law Enforcement Inmate Custody Report); ECF No. 10-6 at 49-55 (Request for Modifying the Conditions or Terms of Supervision with Consent of the Offender; Waiver of Hearing to Modify Conditions of Probation/Supervised Release or Extend Term of Supervision)).

On October 7, 2016, Ellard was released from the BOP (see ECF No. 10-6 at 56 (Federal BOP Inmate Locator)).

On November 18, 2016, the FCOR issued a warrant for Ellard's arrest for violating the conditions of his conditional release (ECF No. 10-6 at 58-59 (Warrant for Retaking Conditional Releasee)). On December 21, 2016, Ellard signed a Waiver of Conditional Release Violation Hearing (ECF No. 10-6 at 64 (Waiver); see also 10-6 at 65 (Conditional/Control Release Pre-Revocation Interview Notice of Rights)). On January 25, 2017, the FCOR revoked Ellard's conditional release for violating the condition requiring him to report to his conditional release supervisor within five days of his release from the BOP (ECF No. 10-6 at 70 (Amended Revocation of Conditional Release Order)). The FCOR ordered Ellard returned to the FDOC until expiration of his sentence, without credit for time already served on conditional release (see id.).

On December 1, 2017, Ellard filed a habeas petition in the state circuit court where he was confined (ECF No. 10-3 at 2-6 (Petition)). The FCOR filed a response to the petition (ECF No. 10-6 at 2-16 (Response)). On July 20, 2018, the circuit court denied Ellard's habeas petition (ECF No. 10-8 (Order)). Ellard sought review of the circuit court's decision in the Florida First District Court of Appeal (First DCA), No. 1D18-3071 (see ECF No. 10-9 (Notice of Appeal); ECF No. 10-10 (First DCA orders treating Ellard's briefs as petitions for writ of certiorari); ECF No. 10-11 at 2-32 (Ellard's Second Amended Petition for Writ of Certiorari); ECF No. 10-13 (FCOR's Response); ECF No. 10-14 at 2-19 (Ellard's Amended Reply)). On March 13, 2020, the First DCA denied the petition for writ of certiorari on the merits (ECF No. 10-15). Ellard v. Fla. Comm'n on Offender Rev., 292 So.3d 847 (Fla. 1st DCA 2020) (Mem). The First DCA denied Ellard's motion for rehearing (ECF No.10-16 (Ellard's Motion for Rehearing); ECF No. 10-17 (Order)). The First DCA's mandate issued May 18, 2020 (ECF No. 10-18 (Mandate)).

Ellard commenced this federal habeas action on June 1, 2020 (ECF No. 1).

II. STANDARD OF REVIEW

A federal court “shall not” grant a habeas corpus petition on any claim that was adjudicated on the merits in state court unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).[2] Justice O'Connor described the appropriate test:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this 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 this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

Under the Williams framework, the federal court must first determine the “clearly established Federal law, ” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). After identifying the governing legal principle, the federal court determines whether the state court's adjudication is contrary to the clearly established Supreme Court case law. The adjudication is “contrary” only if either the reasoning or the result contradicts the relevant Supreme Court cases. See Early v. Packer, 537 U.S. 3, 8 (2002) (“Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.”).

If the “contrary to” clause is not satisfied, the federal court determines whether the state court “unreasonably applied” the governing legal principle set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle was “objectively unreasonable” in light of the record before the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542 U.S. 649, 652 (2004). [E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

Section 2254(d) also allows habeas relief for a claim adjudicated on the merits in state court where that adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court ...

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