Grant v. Sec'y, Dep't of Corr.
| Decision Date | 17 March 2023 |
| Docket Number | 8:19-cv-2954-KKM-SPF |
| Parties | HEWITT A. GRANT, II, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Hewitt A. Grant, II, a Florida prisoner, timely[1] filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging his state court convictions based on alleged errors of the state courts and the prosecution and alleged failures of his trial counsel. (Doc. 1.) Having considered the petition, (id.), the response in opposition (Doc. 8), and Grant's reply, (Doc. 13), the petition is dismissed-in-part regarding the grounds over which this Court lacks jurisdiction and is denied-in-part regarding the other grounds. Because reasonable jurists would not disagree Grant is not entitled to a certificate of appealability.
The State of Florida charged Grant with sixty-nine counts of animal fighting or baiting, two counts of managing a property used for training animals for fighting, one count of possession of equipment for fighting or baiting, twelve counts of cruelty to an animal, and one count of possession of a firearm by a convicted felon. (Doc. 9-2, Ex. 1, pp. 26780.) The counts of cruelty to an animal were misdemeanors and the other counts were felonies. (Id.)
A state court jury found Grant guilty of all counts related to animals, animal fighting or baiting, and property or equipment related to animal fighting, totaling eighty-four counts. (Doc. 9-3, Ex. 1, pp. 491-503.) For the felony counts, the state trial court imposed an overall sentence of twenty years in prison followed by twenty-five years of probation. (Doc. 9-3, Ex. 1, pp. 599-601, 631-658.) For the misdemeanor counts, the state trial court sentenced Grant to time served. (Doc. 9-2, Ex. 1, pp. 599, 656.) The state appellate court per curiam affirmed the convictions and sentences. (Doc. 9-4, Ex. 5.)
After his trial, Grant pleaded nolo contendere to the count of possession of a firearm by a convicted felon. (Doc. 9-5, Ex. 9, pp. 377-398; 399-403.) The state trial court sentenced him to nine years in prison, concurrent with his sentence on the other counts. (Id., pp. 395-96.) The state appellate court per curiam affirmed the conviction and sentence. (Doc. 9-6, Ex. 13.)
Grant moved for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 9-7, Ex. 19, pp. 14-60.) The state court denied his motion. (Doc. 9-8, Ex. 19, pp. 114-20.) The state appellate court per curiam affirmed. (Doc. 9-9, Ex. 22.) Grant filed a second Rule 3.850 motion alleging newly discovered evidence, which was also denied. (Doc. 9-11, Ex. 34.) The state appellate court per curiam affirmed the denial. (Id., Ex. 37.) Grant's petition for writ of habeas corpus was dismissed. (Doc. 9-9, Exs. 26 & 28.) The dismissal was affirmed by the state appellate court. (Doc. 9-11, Ex. 32.)
Detective James Scarborough, a certified animal cruelty investigator who had studied dogfighting and had experience using dogs for hunting, was dispatched to a property in Fort Meade, Florida, on October 21, 2014. (Doc. 9-3, Ex. 1c, pp. 356-57, 379, 478-79.) A structure on the property had been a bar or club but was no longer in operation. (Id., p. 380.) A privacy fence surrounded the back section of the property. (Id.) Detective Scarborough heard dogs barking behind the fence. (Id.) He posted a notice for the owner of the dogs to contact him. (Id., p. 381.) That evening, he received a call from Grant. (Id., p. 382.)
Grant agreed to meet Detective Scarborough at the property at 5:00 p.m. the following day. (Id., p. 399.)
The next morning, Detective Scarborough learned that a veterinarian was going to the property. (Id., p. 400.) Detective Scarborough arrived at the property between noon and 1:00 p.m. (Id.) He asked Grant for permission to search the property and Grant signed a consent to search form. (Id., p. 401.) Detective Scarborough observed some dogs in kennels and some dogs tied with logging chains, which he explained are heavy chains typically used for binding equipment or logs onto a semi-trailer. (Id., pp. 359-60, 404.) Detective Scarborough entered the building and saw marks on the floor that led him to believe a dog fighting ring (about 16 square feet in size) had been set up and removed. (Id., pp. 405, 418.) He observed small pieces of carpet remnants on the floor and a red substance that looked like blood on the wall. (Id., p. 405.) Officers obtained a search warrant for the property. (Id., pp. 405-06.) Crime scene technician Kistler collected samples of the apparent blood from the floor and wall. (Id., pp. 464, 466.)
Detective Scarborough found records showing that Grant owned another property in Bartow, Florida. (Id. p. 416.) Detective Scarborough went to that property with Sergeant Thomas Dixon and Deputy Rick Anderson. (Id., p. 418.) At the Bartow property, Detective Scarborough observed a set of two-by-fours with plywood nailed to them and a roll of carpet the same color as the carpet remnants he saw in the Fort Meade building.
(Id.) Detective Scarborough then obtained a search warrant for the Bartow property. (Id., p. 420.)
On the Bartow property, Detective Scarborough observed more dogs with heavy logging chains. (Id., p. 423.) He also found saline solution and IV bags, which can be used to treat dogs dehydrated from physical exertion, and wound care items. (Id., pp. 428, 446.) He also found photographs of dogs that appeared to show how many fights the dogs had won or how long the dogs lasted in fights. (Doc. 9-3, Ex. 1c, pp. 433-34, 437-38.) Detective Scarborough located a duffel bag with dog pedigrees, pictures, and a book about dogfighting. (Id., p. 435-36.) He stated that the book has been “banned' in the United States and is highly valuable in the dogfighting world. (Id., p. 483.)
Detective Scarborough observed what looked like blood on the walls, door, and carpet of an area set up as a fighting ring. (Id., p. 439-40.) Detective Scarborough also located a treadmill of the type commonly used to train dogs for dogfighting. (Id., pp. 361, 368-69, 442.) He also found a harness and weight sled on the Bartow property. (Id., 37071, 442.) He explained that a person will place weight on the sled, attach the sled to a harness on the dog, and make the dog pull the sled. (Id., p. 370.) Detective Scarborough stated that the wood panels and rolls of carpet at the Bartow property were taken but were later thrown away because the Sheriff's Office lacked sufficient space to store them. (Id., p. 473.)
All 69 of the dogs at the properties were removed. (Id., pp. 379, 448.) Each dog was removed individually and assigned a number. (Doc. 9-3, Ex. 1d, p. 506.) A picture and written description were recorded for each dog. (Id., p. 506.) Detective Scarborough stated that, based on his experience, the injuries to Grant's dogs were not consistent with hunting them. (Doc. 9-3, Ex. 1c, pp. 485-86.)
Dr. Abbe DeGroat was the staff veterinarian at Polk County Animal Control who examined all 69 dogs. (Doc. 9-3, Ex. 1d, pp. 498, 506.) During the examinations, the dogs were photographed and any injuries were documented. (Id., pp. 507, 510-11.) As part of her evaluation, Dr. DeGroat assigned each dog a body condition score based on a scale of 1 to 5. (Id., p. 512.) A score of 1 indicated an ideal body condition and a score of 5 indicated an emaciated body condition. (Id.) Dr. DeGroat assigned 20 dogs a score of 1, six dogs a score of 2, one dog a score of 2.5, 24 dogs a score of 3, two dogs a score of 3.5, and 12 dogs a score of 4. (Id., pp. 634-35.)[2]
Dr. DeGroat noted similar conditions for many dogs, including fleas and poor coat quality, scars or injuries consistent with fighting, and abrasions. (Id., pp. 512-622.) On some dogs, she noted conditions such as splayed feet from confinement in a space that was too small, sores or scarring from lying on hard surfaces, and missing or broken teeth. (Id., pp. 515, 517-18, 523, 527, 530, 534, 550, 570-71, 579, 582, 585, 587-88, 594, 598-99, 601, 604-06, 616, 620.) On a few dogs, she noted conditions such as worms, missing hair that had been rubbed off the dog's neck by a collar, and teeth that had been filed down. (Id., pp. 517, 527, 546, 570, 574, 587, 591-94, 597, 601, 604, 637.) Dr. DeGroat explained that a dog's teeth may be filed to prevent the dog from injuring another dog while fighting or during breeding. (Id., pp. 520-21.) She also noted that some dogs had heavy collars or chains. (Id., pp. 512-13, 535-37, 540, 543, 546, 549, 552-53, 555-57, 565, 571.)
Dr. DeGroat did not believe the injuries to Grant's dogs were consistent with hunting injuries. (Id., p. 624.) She testified that bite mark patterns from hunting and dogfighting are “completely different.” (Id., p. 663.) Dr. DeGroat concluded that all 69 dogs were used or bred for fighting. (Id., pp. 626-27.)
Grant testified that he bred the dogs for hunting. (Id p. 707.) He stated that although he had not hunted with dogs for about four years, he rented his dogs to friends for hunting. (Id., pp. 707-09.) Often, he stated, he would receive payment in form of meat from the animals that the dogs caught. (Id., pp. 709-10.) He stored the raw meat in freezers on both properties. (Id., p. 780.) Grant stated that he could not afford a veterinarian, but he took care of the dogs and bought them food, medications, vitamins, and de-wormers. (Id., pp. 711-12.) Grant testified about the medical treatment he gave the dogs and denied filing down the teeth of any dog. (Id., pp. 852, 872-902.) He testified that he used the treadmill and weight sled to build the dogs' endurance and...
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