Garrett v. Tucker

• Decision Date: 09 August 2012
• Docket Number: Case No. 3:09cv468/MCR/CJK
• Parties: WILLIAM GARRETT, Petitioner, v. KENNETH S. TUCKER, Respondent.
• Court: U.S. District Court — Northern District of Florida

WILLIAM GARRETT, Petitioner, v. KENNETH S. TUCKER, Respondent.

Case No. 3:09cv468/MCR/CJK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

Date: August 9, 2012

REPORT AND RECOMMENDATION

Before the Court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 1). Respondent filed an answer (doc. 25), submitting relevant portions of the state court record (doc. 26). Petitioner replied. (Doc. 31). Respondent filed an amended answer on May 8, 2012. (Doc. 34). On May 9, 2012, the Court issued an order providing petitioner thirty days in which to amend his reply. (Doc. 35). Petitioner has not filed an amended reply. 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 of all issues raised by petitioner, 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 in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the Court show that petitioner is not entitled to federal habeas relief, and that the petition should be denied.

BACKGROUND AND PROCEDURAL HISTORY

On January 8, 2003, petitioner was convicted upon jury verdict of Burglary of a Dwelling while Armed (Count 1), Battery (Count 2), Aggravated Battery with aDeadly Weapon (Count 3) and Aggravated Assault by Threat (Count 4) in Escambia County Circuit Court Case Number 01-4998. (Doc. 26, Ex. C).¹ The offenses occurred on October 31, 2001. Petitioner was sentenced on May 7, 2003, to concurrent terms of 20 years imprisonment on Counts 1, 3 and 4, and to 6 months imprisonment on Count 2 concurrent with the other counts. (Ex. D).

Petitioner appealed his judgment and sentence to the Florida First District Court of Appeal ("First DCA"), raising three claims of error:

I. THE EVIDENCE WAS INSUFFICIENT TO CONVICT APPELLANT OF ARMED BURGLARY.

II. THE EVIDENCE WAS INSUFFICIENT TO CONVICT APPELLANT OF AGGRAVATED BATTERY OR SIMPLE BATTERY.

III. THE EVIDENCE WAS INSUFFICIENT TO CONVICT APPELLANT OF AGGRAVATED ASSAULT.

(Ex. F). The State filed an answer brief, asserting that petitioner was not entitled to relief on any of his claims, because petitioner failed to preserve a challenge to the sufficiency of the evidence at trial and could not make the requisite showing of fundamental error. (Ex. G, pp. 7-8). The State alternatively argued the merits. On December 13, 2004, the First DCA per curiam affirmed without written opinion. Garrett v. State, 888 So.2d 627 (Fla. 1st DCA 2004) (Table) (copy at Ex. H).

On January 18, 2005, petitioner filed a motion for mitigation of sentence under Florida Rule of Criminal Procedure 3.800(c). (Ex. J). The trial court denied relief on February 7, 2005. (Ex. K). Petitioner did not appeal.

On October 20, 2005, petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, raising the following five claims:

GROUND ONE - FUNDAMENTAL ERROR OR INEFFECTIVE ASSISTANCE OF COUNSEL DURING JURY INSTRUCTIONS, WHICH FAILED TO ASSIGN A BURDEN OF PROOF BEYOND A REASONABLE DOUBT TO ESSENTIAL ELEMENT OF ENHANCED BURGLARY OFFENSE.

GROUND TWO - INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO REQUEST JURY INSTRUCTION ON INDEPENDENT ACT DEFENSE.

GROUND THREE - FUNDAMENTAL ERROR IN JURY INSTRUCTIONS, WHICH INCLUDED ALTERNATIVE ENHANCED BURGLARY NOT CHARGED IN INFORMATION.

GROUND FOUR - INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO CHALLENGE BIASED JURORS.

GROUND FIVE - ILLEGAL GENERAL SENTENCE IMPOSED FOR SEPARATE OFFENSES.

(Ex. L). On August 8, 2006, the Rule 3.850 court summarily denied Grounds One through Four but granted relief on Ground Five, which the court construed as a motion to correct illegal sentence. (Ex. P). The court held a resentencing hearing on August 22, 2007, and resentenced petitioner to 20 years imprisonment on Count 1; 6 months imprisonment on Count 2; 15 years imprisonment on Count 3; and 5 years imprisonment on Count 4, all sentences to run concurrently. (Ex. Q). An amended judgment and sentence was rendered August 22, 2007.

Petitioner filed a pro se notice of appeal indicating that the nature of the order appealed was the denial of a motion for postconviction relief. (Ex. R). Petitioner alsofiled a pro se initial brief raising four claims of error (that the lower court erred in denying Grounds One through Four of petitioner's postconviction motion). (Ex. S). The State filed a notice that no answer brief would be filed. (Ex. T). The First DCA ordered petitioner to show cause why the appeal should not be redesignated as a direct appeal from the resentencing, citing King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001). (Ex. U). Petitioner responded, agreeing that the appeal should be redesignated as a direct appeal, "conced[ing] to such redesignation," and asserting that, as in King, the appellate court should relinquish jurisdiction for the trial court to appoint counsel for the appeal and allow appointed appellate counsel to brief all issues. (Ex. V). The State responded that the appeal should not be redesignated as a direct appeal from petitioner's resentencing but should proceed in accordance with Florida Rule of Appellate Procedure 9.141(b). (Ex. W). Florida's Appellate Rule 9.141(b) provides a streamlined procedure for appellate review of summary denials of postconviction relief, and does not require the filing of briefs. The First DCA rejected the State's position, redesignated petitioner's appeal as a "direct appeal from the amended sentence filed on August 22, 2007," and relinquished jurisdiction to the trial court to appoint counsel to represent petitioner in the appeal. (Ex. X). Petitioner's appellate counsel filed an Initial Brief raising one issue:

THE TRIAL COURT ERRED IN DENYING APPELLANT'S RULE 3.850 MOTION BECAUSE THE TRIAL COURT DID NOT PROPERLY INSTRUCT THE JURY THAT THE STATE HAD TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS ARMED DURING THE BURGLARY.

(Ex. Y). The First DCA per curiam affirmed without written opinion on August 4, 2009. Garrett v. State, 13 So.3d 470 (Fla. 1st DCA 2009) (Table) (copy at Ex. AA). The mandate issued August 20, 2009. (Ex. BB). Petitioner filed a pro se motion forrehearing on September 10, 2009, arguing that the appellate court erred in converting the appeal to a direct appeal of petitioner's resentencing, and requesting that the court re-hear his appeal "as an appeal from the summary denial of his Rule 3.850 motion." (Ex. CC). The First DCA denied the motion for rehearing on October 5, 2009. (Ex. DD).

Petitioner filed the instant federal habeas petition on October 21, 2009. (Doc. 1). The petition presents seven grounds for relief. Respondent concedes that the petition is timely, but argues that petitioner is not entitled to federal habeas relief because his claims are either procedurally defaulted or without merit. (Doc. 34).

LEGAL STANDARDS

Exhaustion and Procedural Default

Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all available state court remedies for challenging his conviction, 28 U.S.C. § 2254(b)(1),² thereby giving the state the "'opportunity to pass upon and correct'alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and which can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. O'Sullivan, 526 U.S. at 839-40, 848, 119 S. Ct. 1728; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998) (holding that federal habeas courts should enforce applicable state procedural bars even as to claims that were never presented to the state courts). To overcome a procedural default, the petitioner must show cause and prejudice, or a fundamental miscarriage of justice. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1990), rev'd on other grounds, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991). "For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McCleskey v. Zant, 499 U.S. 467, 497, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). To satisfy the miscarriage of justice exception, the petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 85, 130 L. Ed. 2d808 (1995). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him." Schlup, 513 U.S. at 327. Further:

a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.

Id.

Section 2254 Standard of Review

Federal courts may issue habeas corpus relief for persons in state...