Fisher v. Fla. Attorney Gen. & Sec'y

Decision Date31 August 2017
Docket NumberCase No: 2:16-cv-157-FtM-99MRM
PartiesLUKE FISHER, Petitioner, v. FLORIDA ATTORNEY GENERAL and SECRETARY, DOC, Respondents.
CourtU.S. District Court — Middle District of Florida
OPINION AND ORDER

This matter comes before the Court on a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Luke Fisher ("Petitioner" or "Fisher"), a prisoner of the Florida Department of Corrections (Doc. 1, filed February 25, 2016). Fisher, proceeding pro se, attacks the convictions and sentences entered against him by the Twentieth Judicial Circuit Court in Charlotte County, Florida for trafficking in cocaine, possession of methamphetamine, possession of oxycodone, possession of MDMA, driving with a suspended license, carrying a concealed firearm, and possession of drug paraphernalia. Id. Respondent filed aresponse to the petition (Doc. 10). Fisher filed a reply (Doc. 13), and the matter is now ripe for review.

Upon due consideration of the pleadings and the state court record, the Court concludes that each claim must be dismissed or denied. Because the petition is resolved on the record, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the factual allegations in the petition or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).

I. Background2

On April 8, 2008, the State of Florida charged Fisher by amended information with ten separate counts: possession of cocaine, in violation of Florida Statute § 893.13(6)(a) (count one); possession of a controlled substance with intent to sell or deliver, in violation of Florida Statute § 893.13(1)(1) (count two); trafficking in cocaine, in violation of Florida Statute § 893.135(1)(b)(count three); three counts of possession of a controlled substance, in violation of Florida Statute § 893.13(6)(a) (counts four through six); unlawful fleeing from a law enforcement officer, in violation of Florida Statute §316.1935(3)(a) (count seven); driving with a suspended license; in violation of Florida Statute § 322.34(5) (count eight); carrying a concealed firearm, in violation of Florida Statute § 790.01(2) (count nine); and possession of paraphernalia, in violation of Florida Statute § 893.147 (count ten) (Vol. 1 at 14).

Fisher faced up to ninety years in prison if convicted on all counts, but entered into a negotiated plea agreement in which he agreed to plead no contest to some of the counts in exchange for a prosecutor recommendation of forty-eight months in prison, followed by two years of supervised release (Vol. 1 at 62-63). At Fisher's November 4, 2008 plea colloquy, the trial court agreed to forego taking Fisher into immediate custody. Id. at 128. However, the court warned Fisher of the ramifications of violating the law during his furlough:

Here's the way I do that. Before I go through a plea colloquy with you, Mr. Fisher, I'll go along with what's been negotiated, but I will not impose sentence today. What I do rather than impose the sentence and give you a date to report, I defer sentencing, and I'll be really upfront and honest with you. I'm always upfront and honest, but I'm going to be really blunt. The reason why I do that is because if you pick up any new charges between now and your sentencing date, or if you fail to appear for sentencing, your plea would stand, but not the agreed upon sentence. Which means that I can give you a total of 10, 40, 50, 55 years in state prison. So it's an incentive for you not to break the law while you're pending sentencing.

Id. at 128-29. Fisher affirmed his understanding of the warning, and the trial court proceeded with the colloquy. Id. at 131-34. The court found Fisher competent to tender the plea, and it was accepted. Id. at 34. Sentencing was set for three weeks later. Id.

Between his plea colloquy and his December 5, 2008 sentencing, Fisher was arrested for other drug-related crimes (S at 3). At defense counsel's ("Counsel's") request, an evidentiary hearing was held to establish whether Fisher had violated the terms of his furlough. Id. at 5. Brad Combs, a detective with the Charlotte County Sheriff's Office, testified at the hearing. Id. at 8. Combs testified that Fisher sold Roxycodone pills to a confidential informant and undercover detective on November 6, 2008 and November 21, 2008. Id. at 8-10. A search warrant was executed at Fisher's residence where 620 Oxycodone pills, 17 grams of methamphetamine, and one gram of crack cocaine were located. Id. at 11. Fisher was apprehended, and he was found to be carrying a substantial amount of cash and a key to a bank deposit box. Id. The box was found to contain 1003 Roxycodone pills and $15,000 in cash. Id. On cross-examination, Combs admitted that he was not physically present at the November 6, 2008 drug buy; rather, he listened to the transaction on a listening device in order to monitor the situation. Id. at 12. However, Combs clarified that he saw the search warrant executed and he saw the drugs in Fisher's house.Id. at 22. He also saw the search warrant executed on the bank deposit box and saw the money and drugs contained therein. Id.

The trial court found that competent and substantial evidence showing that Fisher violated the plea agreement by committing additional crimes while on furlough (S. at 32). Fisher was sentenced to twenty years in prison on count three; concurrent five-year terms on counts four, five, six, eight, and nine; and to time served on count ten. Id. at 33-34.

In his brief on direct appeal, Fisher argued that the trial court committed reversible error when it relied on hearsay evidence to void Fisher's sentencing agreement (Ex. 2). Instead of considering the merits of Fisher's claims, Florida's Second District Court of Appeal determined that Fisher had not preserved the claim for appellate review:

Fisher argues the trial court violated the terms of the plea agreement by relying on insufficient evidence to determine that he committed a new law violation and thereafter imposing a sentence greater than the sentence approved under the plea agreement. In support of his argument, Fisher relies on the evidentiary requirements set forth in Neeld [v. State, 977 So. 2d 740, 745 (Fla. 2d DCA 2008)]. But in Neeld, this court, prior to addressing the merits of his appeal, noted Neeld had filed a motion to withdraw plea. 977 So.2d at 741. In contrast, for reasons that are unclear in our record on appeal, Fisher did not file a motion to withdraw his plea. Therefore, Fisher's contentions were not preserved under rule 9.140(b)(2)(A)(ii)(b), and we find his arguments concerning the sufficiency of the evidence relied upon by thetrial court to be beyond our scope of appellate review. Accordingly, we affirm Fisher's judgments and sentences without prejudice to any right he may have to file a motion for postconviction relief.

(Ex. 5); Fisher v. State, 35 So. 3d 2010 (Fla. 3d DCA 2010).

Thereafter, Fisher filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 motion") in which he argued that Counsel had been constitutionally ineffective for not preserving his sentencing claim for appellate review by filing a motion to withdraw his plea (Ex. 8). Fisher also filed an amended Rule 3.850 motion (Ex. 9). The motions were struck by the post-conviction court on the ground that Fisher had not alleged prejudice from Counsel's failure to file a motion to withdraw plea—in other words, the post-conviction court noted that Fisher had not demonstrated that the state could not have presented "non-hearsay evidence demonstrating new law offenses between [Fisher's] plea and sentencing." (Ex. 10 at 3).

On March 20, 2012, Fisher filed another Rule 3.850 motion in which he raised three claims of ineffective assistance of counsel (Ex. 11). Two of the claims were denied on the merits, and an evidentiary hearing was ordered on Fisher's claim that Counsel had failed to advise him of a viable defense (Ex. 14). After holding an evidentiary hearing (Ex. 23), the remaining claim was also denied (Ex. 15). Florida's Second District Court of Appealaffirmed without a written opinion (Ex. 21); Fisher v. State, 185 So. 3d 1242 (Fla. 2d DCA 2016).

II. Legal Standards
a. The Antiterrorism Effective Death Penalty Act ("AEDPA")

Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that 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) resulted in a decision that 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). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). Notably, a state court's violation of state law is not sufficient to show that a petitioner is in custody in violation of the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).

"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). That said, the Supreme Court has also explained that"the lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since 'a general standard' from [the Supreme Court's] cases can supply such law." Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). State courts ...

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