Esty v. Jones, Case No. 3:14cv357/LC/CJK

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtCHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE
Decision Date04 June 2015
PartiesSEAN PATRICK ESTY, Petitioner, v. JULIE L. JONES, Respondent.
Docket NumberCase No. 3:14cv357/LC/CJK

SEAN PATRICK ESTY, Petitioner,
v.
JULIE L. JONES, Respondent.

Case No. 3:14cv357/LC/CJK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

June 4, 2015


REPORT AND RECOMMENDATION

Before the court is an amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (doc. 11), with supporting memorandum (doc. 12). Respondent moves to dismiss the petition as an untimely, unauthorized second or successive habeas corpus application, arguing in the alternative that petitioner's claims are barred by abuse-of-the-writ principles and either fail to state a claim on which federal habeas relief can be granted or are procedurally defaulted (doc. 18). Respondent has provided relevant portions of the state court record (doc. 18). Petitioner opposes all of respondent's arguments, and has submitted additional materials (doc. 23). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases

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in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that the petition does not run afoul of AEDPA's restrictions on "second or successive" petitions or abusive claims, and is not barred by AEDPA's statute of limitations; however, the amended petition should be denied because the claims therein either fail to state a plausible claim for federal habeas relief, or are procedurally defaulted.

BACKGROUND AND PROCEDURAL HISTORY

On January 28, 1992, a grand jury indicted petitioner for first degree murder with a weapon of fifteen-year-old Lauren Ramsey, in Escambia County Circuit Court Case Number 92-132. (Doc. 18, Ex. A).1 Petitioner proceeded to jury trial. (Ex. F). The evidence presented at trial is fully laid out in this court's order (which incorporated the magistrate judge's report and recommendation) denying petitioner's first federal habeas petition, Esty v. McDonough, No. 3:04cv363/MCR/EMT, 2007 WL 1294602, at *2-*10 (N.D. Fla. May 1, 2007), and can also be found in the Florida Supreme Court's opinion affirming petitioner's conviction, Esty v. State, 642 So. 2d 1074, 1075-1076 (Fla. 1994) (copy at Ex. J). The jury found petitioner guilty as charged of first degree murder with a weapon (Ex. F, p. 1436; Ex. O, p. 34), and recommended that petitioner receive a life sentence without the possibility of parole for twenty-five years. (Ex. F, p. 1576; Ex. O, p. 41). The trial judge overrode the jury's recommendation and sentenced petitioner to death. (Ex. O, pp. 52-84). Judgment was rendered September 9, 1992. Petitioner appealed to the Florida Supreme Court, raising nine guilt phase issues and three penalty phase issues. (Ex. G). On August 11, 1994, the Florida Supreme Court affirmed petitioner's conviction

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but reversed the death sentence and remanded for the imposition of a life sentence without eligibility for parole for twenty-five years. Esty, 642 So. 2d at 1075-1081 (copy at Ex. J). Petitioner's motion for rehearing was denied on October 5, 1994. (Ex. L). The mandate issued November 7, 1994. (Ex. O, p. 85). The trial court entered a new judgment on January 25, 1995, reflecting the new sentence. (Ex. O, pp. 103-108). Petitioner filed a petition for writ of certiorari in the United States Supreme Court. (Ex. M). The Supreme Court denied the petition on March 20, 1995. Esty v. Florida, 514 U.S. 1027, 115 S. Ct. 1380, 131 L. Ed. 2d 234 (1995) (Table) (copy at Ex. N).

On December 26, 1996, petitioner filed a counseled motion for postconviction relief in state court under Florida Rule of Criminal Procedure 3.850, raising four grounds of ineffective assistance of trial counsel. (Ex. O, pp. 109-117). The state circuit court conducted an evidentiary hearing, and denied relief in an order filed November 12, 2002. (Ex. O, pp. 625-845). The Florida First District Court of Appeal ("First DCA") per curiam affirmed without opinion on May 26, 2004, with the mandate issuing July 12, 2004. Esty v. State, 875 So. 2d 1242 (Fla. 1st DCA 2004) (Table) (copy at Ex. T).

On October 21, 2004, petitioner filed a counseled § 2254 petition in this court, claiming: (1) trial counsel was ineffective in four respects (Ground 1); (2) the trial court committed constitutional error in nine respects (Grounds 2-10). (Ex. W; see also Esty v. McDonough, Case No. 3:04cv363/MCR/EMT, Doc. 1). This court denied Grounds 1, 3, 4, 7, 8 and 10 on the merits, determined Ground 2 was barred by the Stone v. Powell doctrine, determined Ground 5 failed to raise a federal constitutional claim and was procedurally defaulted, and determined that Grounds 6 and 9 were procedurally defaulted. (Doc. 18, Ex. X; see also Esty v. McDonough,

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No. 3:04cv363/MCR/EMT, 2007 WL 1294602 (N.D. Fla. May 1, 2007)). The United States Court of Appeals for the Eleventh Circuit denied a certificate of appealability. (Doc. 18, Ex. Y; see also Esty v. McDonough, Case No. 3:04cv363/MCR/EMT, Doc. 48).

On May 31, 2013, petitioner filed a pro se motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), arguing that the trial court failed to award him the correct amount of jail credit and that he was entitled to an additional five (5) days. (Ex. Z, pp. 1-34). The state circuit court granted the motion on June 25, 2013, as follows:

ORDER GRANTING DEFENDANT'S MOTION FOR
ADDITIONAL JAIL CREDIT
and
DIRECTING THE CLERK OF COURT TO CORRECT
SENTENCE

THIS CAUSE is before the Court on Defendant's pro se "Motion to Correct Illegal Sentence," filed June 5, 2013, pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. The Court, after review of the instant motion, record, and relevant legal authority, finds that Defendant is entitled to relief.

On September 9, 1992, the Court sentenced defendant to death for a conviction of first-degree murder. On appeal, the Supreme Court of Florida reversed and remanded the sentence. On January 25, 1995, the Court resentenced Defendant to life in prison without possibility of parole for 25 years. The Court announced at the original sentencing that Defendant would be awarded 241 days of jail credit. At the resentencing, the Court again awarded Defendant 241 days of jail credit, plus all time previously served in prison.

In the instant motion, Defendant alleges that both his original jail credit award and his jail credit award at resentencing were incorrect. Defendant contends that he is owed a total of 246 days of jail credit, five

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more days than he was credited.

Defendant was originally arrested on January 11, 1992, and was sentenced on September 9, 1992; he remained incarcerated during the entirety of that time. He is therefore owed a total of 243 days of jail credit from his time incarcerated before his original sentencing.

Florida law makes it clear that the trial court is to award jail credit for the time spent in county jail awaiting resentencing. See Smith v. State, 93 So. 3d 1181 (Fla. 1st DCA 2012). Defendant asserts that he was in county jail from January 23, 1995, until the date of resentencing, January 25, 1995. Because Defendant was given only the 241 days that he had been given at his original sentencing, it is clear that the Court did not award him the days he spent awaiting resentencing. This Court finds that Defendant should be awarded credit for January 23-25, 1995, a total of three days of jail credit. Based upon these considerations, therefore, Defendant will be awarded five additional days of jail credit against the sentence in the above-styled case, for a grand total of 246 days of jail credit.

Accordingly, it is hereby ORDERED and ADJUDGED that:

1. Defendant's pro se "Motion to Correct Illegal Sentence" is GRANTED;

2. Defendant is awarded five (5) more days of jail credit in addition to what he has already been credited in the above-styled case, for a total of 246 days of jail credit;

3. The Clerk of Court is DIRECTED to correct Defendant's sentence in accordance with this order;

4. The Clerk of Court is further DIRECTED to forward a copy of the corrected sentencing document to the Department of Corrections; and

5. Defendant has 30 days from the date of this order to file a notice

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of appeal, should he choose to do so.

(Ex. Z, pp. 35-37). On June 25, 2013, a "Corrected Judgment and Sentence" was filed. (Ex. Z, pp. 38-42; see also Ex. X, Escambia Circuit Court docket printout, Items 499 and 500 reflecting the recording and filing of a corrected judgment and sentence). Petitioner filed a notice of appeal from the June 25, 2013 order, indicating that he was also appealing "the original judgment of guilt." (Ex. Z, p. 43). Petitioner asserted: "The nature of this order is a final order granting motion to correct illegal sentence for Murder-First Degree. The District Court of Appeals has jurisdiction for direct review, as Defendant was not properly and validly sentenced until June 25, 2013." (Id.). Petitioner's "Statement of Judicial Acts To Be Reviewed" identified no errors relating to the corrected sentence; it identified only pre-trial and trial errors relating to petitioner's undisturbed conviction of first degree murder. (Ex. Z, pp. 62-66). On August 20, 2013, the First DCA issued the following order to show cause:

The record reflects that appellant filed a motion to correct illegal
...

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