Grant v. Sec'y, Dep't of Corr.

• Decision Date: 07 August 2019
• Docket Number: Case No. 8:16-cv-1978-T-02SPF
• Parties: ULYSSES A. GRANT, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

ULYSSES A. GRANT, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:16-cv-1978-T-02SPF

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

August 7, 2019

ORDER

Ulysses A. Grant, a Florida prisoner, timely filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) challenging his Hillsborough County convictions. The Court ordered Respondent Secretary, Department of Corrections, to show cause why the relief sought in the petition should not be granted. (Dkt. 7). Respondent filed a response, along with the state court record. (Dkts. 13, 15). Mr. Grant filed a reply. (Dkt. 18). Upon consideration, the petition will be denied.

Background

Mr. Grant was charged with three counts of delivery of cocaine to a confidential informant within 1,000 feet of a school. (Dkt. 15, Ex. 32, Vol. 1, p. 12). Count one was severed from counts two and three. Mr. Grant was convicted of count one after a jury trial. (Id., p. 62). The trial court sentenced him to six years in prison, followed by 10 years of probation. (Id., p. 85). After another jury trial, Mr. Grant was convicted of counts two and three. (Dkt. 15, Ex. 33, Vol. 2, p. 141). He received sentences of six years in prison, followed by 10 years of probation. (Id.). The sentences for counts two and three were concurrent to each other but consecutive to the sentence for count one. (Id., pp. 143-44). The state appellate court per curiam affirmed all three convictions and sentences. (Dkt. 15, Exs. 5, 10). Mr. Grant filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 15, Ex. 12). The state court denied relief following an evidentiary hearing. (Dkt. 15, Exs. 17, 18). The state appellate court per curiam affirmed. (Dkt. 15, Ex. 22). Mr. Grant later filed a petition for writ of habeas corpus in the Florida Supreme Court, which was dismissed in part and denied in part. (Dkt. 15, Exs. 30, 31).

Grounds One, Two, Three, and Four of Mr. Grant's federal habeas petition challenge his conviction for count one. Ground Five of Mr. Grant's federal habeas petition appears to challenge his convictions for all three counts.

Discussion

I. Procedurally Defaulted Claims

Exhaustion of State Court Remedies; Procedural Default

A federal habeas petitioner must exhaust his claims by raising them in state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."). The exhaustion requirement is satisfied if the petitioner fairly presents his claim in each appropriate state court and alerts that court to the federal nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971). The doctrine of procedural default provides that "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

II. Merits Review

Standard of Review Under AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:

(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.

A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

AEDPA was meant "to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is differentfrom an incorrect one." Id. at 694; see also Harrington v. Richter, 562 U.S. 86, 103 (2011) ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").

The state appellate court affirmed Mr. Grant's conviction and sentence, as well as the denial of postconviction relief, without discussion. Similarly, the Florida Supreme Court denied in part Mr. Grant's petition for writ of habeas corpus without explanation. These decisions warrant deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). When a state appellate court issues a silent affirmance, "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

A. Ground One

Mr. Grant argues that the State's evidence was insufficient to sustain his conviction, resulting in a federal due process violation. However, as Respondent contends, Mr. Grant's federal claim is unexhausted. On appeal, Mr. Grant presented his claim as one of state law. (Dkt. 15, Ex. 2, pp. 10-13). He did not cite any federal authority or raise any issues of federal law. (Id.). A petitioner may be able to exhaust a federal sufficiency of the evidence claim by presenting an analogous state claim in state court if the federal and state courts apply the same standard of review. Mulnix v. Sec'y for Dep't of Corr., 254 F. App'x 763 (11th Cir. 2007). The standard applied by a federal habeas courtis whether, considering the evidence in the light most favorable to the prosecution, a rational trier of fact could find proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

On appeal, however, Mr. Grant asserted that Florida's distinguishable and heightened standard for circumstantial evidence cases applied. (Dkt. 15, Ex. 2, pp. 10-13). Under this standard, "no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 460 (11th Cir. 2015) (quoting Thorp v. State, 777 So.2d 385, 389 (Fla. 2000)). Accordingly, Mr. Grant failed to exhaust his federal sufficiency of the evidence claim. See id. at 462 (holding that the petitioner did not exhaust a federal claim when his appellate brief relied on Florida's "unique" standard of review for circumstantial evidence cases, cited exclusively to state decisions, and presented substantive arguments based solely on Florida law).

Mr. Grant cannot return to state court to exhaust a federal sufficiency of the evidence claim because state procedural rules do not provide for second appeals. See Fla. R. App. P. 9.140(b)(3) (stating that a notice of appeal must be filed within 30 days of the rendition of the sentence). Therefore, his sufficiency of the evidence claim is procedurally defaulted. See Smith, 256 F.3d at 1138. Mr. Grant does not argue or establish that the cause and prejudice exception applies to excuse the default.

In his reply, Mr. Grant refers to "a miscarriage of justice[.]" (Dkt. 18, p. 4). To the extent Mr. Grant alleges that the fundamental miscarriage of justice exception applies to excuse the default, his argument must fail. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actuallyinnocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). Mr. Grant's "claim of innocence is . . . 'not itself a constitutional claim, but instead a gateway through which [he] must pass to have his otherwise barred constitutional claim considered on the merits.'" Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).

This exception requires a petitioner's "actual" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir 2001). Actual innocence "means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). "To be credible, . . . a claim [of actual innocence] requires 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." Schlup, 513 U.S. at 324. Mr. Grant has not offered any new, reliable evidence...