REPORT AND RECOMMENDATION Before the court is a second amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 22). Respondent filed an answer, submitting relevant portions of the state court record. (Docs. 28, 34). Petitioner replied. (Doc. 32). 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 habeas relief, and that the second amended petition should be denied.
BACKGROUND AND PROCEDURAL HISTORY On March 29, 2012, petitioner was convicted by jury verdict of failing to properly register as a sex offender, in violation of Fla. Stat. § 943.0435, in Bay County Circuit Court Case No. 10-CF-2391. (Doc. 34, Ex. A, p. 125).1 Petitioner was adjudicated guilty and sentenced to 75.9 months imprisonment. (Ex. A, pp. 131-135). The Florida First District Court of Appeal ("First DCA") affirmed the judgment on June 10, 2013, in a written opinion. Goodman v. State, 117 So. 3d 32 (Fla. 1st DCA 2013) (copy at Ex. G). Petitioner sought further review in the Florida Supreme Court, which declined to accept jurisdiction and denied review in an order filed December 26, 2013. Goodman v. State, 132 So. 3d 221 (Fla. 2013) (Table).
Petitioner filed his original federal habeas petition on December 23, 2014 (doc. 1, p. 32 (postmark)), which he twice amended (docs. 9, 22). Petitioner's second amended petition raises three claims: (1) the trial court erred in convicting petitioner of a nonexistent crime; (2) the trial court erred in instructing the jury on a nonexistent crime; and (3) the trial court erred in failing to acquit petitioner as the evidence was insufficient to support his conviction. (Doc. 22, pp. 5-8). Respondent concedes that petitioner exhausted these claims by presenting them in his direct appeal. (Doc. 28, pp. 13, 20, 24).2 Respondent asserts that petitioner is not entitled to habeas relief, because the state court's adjudication of the claims was not contrary to and did not involve an unreasonable application of clearly established federal law. (Doc. 28, pp. 13-28).
Ground One "The Trial Court Erred In Convicting Petitioner Of A Nonexistent Crime." (Doc. 22, p. 5).
Petitioner explains the basis of this claim as: "There is no crime in Florida law of failure to submit travel logs to the Bay County Sheriff's Office." (Doc. 22, p. 5). Petitioner does not expound further, except to assert that he raised this claim in his direct appeal. (Id.). Petitioner's appellate counsel summarized the substance of this claim ("Issue I" of petitioner's direct appeal) as follows:
The trial court fundamentally erred in convicting Appellant of a nonexistent crime. Nowhere in section 943.0435 of the Florida Statutes does the Legislature demonstrate its intent to require transient sexual offenders to appear in person at the local sheriff's office on a weekly basis to report where they will be staying for the week to come. Indeed, this conviction was premised on a nonexistent crime wholly created by a non-legislative entity. Specifically, the Bay County Sheriff's Office created a local policy requiring transient offenders to submit to written weekly logs after having a brainstorming session in order to close a purported loophole in section 943.0435.
(Ex. E, p. 15). Petitioner's counsel characterized the issue as "involving matters of statutory construction". (Ex. E, p. 16). The First DCA likewise construed petitioner's claim:
At issue is whether Bay County Sheriff Office's policy of requiring registered sexual offenders, who are perpetually itinerant within the county, to report in person to its main office by 10 a.m. each Monday morning to specify where they intend to spend the next seven nights is consistent with the applicable sexual offender statute, section 943.0435(4)(b), Florida Statutes (2010). John Luther Goodman III, a registered sex offender, claims the policy goes beyond what the statute required of him, and that his felony conviction for failing to comply with the policy is flawed. He challenges the policy and the special jury instruction that was given. We disagree and affirm.
I.
Since his 1989 conviction for lewd and lascivious/indecent assault on a child under sixteen, Goodman has been a registered sexual offender subject to the requirements of Florida's sexual offender registration statute. Though the record is incomplete, it appears he has generally been in compliance with registration requirements related to his Florida driver's license listing him as a transient, his establishment of a general delivery mail address, and his twice-yearly re-registration requirements through the end of 2010. Because Goodman lacks a permanent or temporary residence, and is essentially a homeless itinerant, he has sporadically run afoul of the county's transient policy, which is set forth in a two-page signature form that sexual offenders (and sexual predators) are given to sign when they register:
In accordance with Florida State Statutes 943.0435 (for offenders) and 775.21 (for predators), the Bay County Sheriff's Office is immediately enforcing new agency policy guidelines for sexual offenders and predators which addresses the transient status requirements for providing transient information to the Bay County Sheriff's Office in a specific timely manner. It is a third degree felony offense if the offender or predator does not report this change in person at the Sheriff's Office. Please review the Florida Department of Law Enforcement notice of responsibilities attached.
The Statutory requirements for the offender or predator are to provide an address for the transient residence or other location that he or she will be occupying during the time which he or she fails to establish or maintain a permanent or temporary residence, [pursuant to] 943.0435(4)(b) or [section] 775.21(g)(2).
1. The offender will respond in person to the Bay County Sheriff's Office within 48 hours to declare he or she is transient and has no permanent or temporary residence. At that time he will be required to sign a registration form declaring the transient status. At that time a current mailing address will also be required. The offender or predator will need to respond to the Sheriff's Office location of 3421 N Hwy 77, Panama City to complete the process Monday through Friday (excluding weekend and holidays) from 8:00 am to 4:00 pm.
2. All transient sexual offenders and predators will provide a written weekly location log "prior" to staying at their listed locations each Monday morning, no later then [sic] 10:00 am [sic]. If the offender or predator declares the transient status during the work week (after Monday), they will provide a written list of locations through the following Monday prior to staying at them.
3. a) A Florida drivers [sic] license or identification card must also be obtained with "Transient, General Delivery, Panama City, Florida 32401" showing on the face of the card. The offender or predator is also required to provide a current mailing address to [sic] Department of Motor Vehicle to be logged also.
b) The valid mailing address is required for correspondence you will receive from the Florida Department of Law Enforcement as well as the Bay County Sheriff's Office. The correspondence will be date and time sensitive. It will require you to check your mailing address on a regular basis. If you have no mailing address to provide, you will be required to use the downtown location as General Delivery, Attention to: Offender Name, Panama City, Florida 32401. The Post Master will not hold the mail indefinitely and it is your responsibility to check it regularly. You may want to speak with the Post Master about your correspondences if you will be staying in transient status for an extended period.
c) Officers should be able to locate you by the log you provide for your transient locations. Your log should reflect the date, location address, type of location, vehicle information (if applicable). If your log reflects you to be at one location and you have to leave that location, new location information should be provided to the Bay County Sheriff's Office, forwarded to the Crime Analysis Unit 248-2076 or 248-2083 prior to the move.
Goodman is familiar with this policy, having signed forms at least twice in the past few years.
Goodman was charged with failure to appear in person and provide the required information at the Sheriff's Office from June 29, 2010, to September 6, 2010. He moved to dismiss the charge, arguing that the policy's burdens exceeded those the statute imposed upon him. He also objected to the special jury instruction prepared by the State that was used. A jury convicted him on March 29, 2012 and he was sentenced immediately thereafter to 75.9 months in prison.
II.
Our analysis begins with the statutory definitions in effect in 2010 during the time Goodman was alleged to have violated state law. Undergirding the sexual offender registration system are three key definitions of potential residences a registrant might have: permanent, temporary, and transient. These definitions have specific statutory meanings. First, a "permanent residence" is defined as "a place where the person abides, lodges, or resides for 5 or more consecutive days." § 775.21(k), Fla. Stat. (2010) (emphasis added). Second, a "temporary residence" is defined as:
a place where the person abides, lodges,
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