Hardy v. Jones
| Decision Date | 15 October 2015 |
| Docket Number | Case No. 4:13cv137-RH/CAS |
| Court | U.S. District Court — Northern District of Florida |
| Parties | ANTHONY LAMAR HARDY, Petitioner, v. JULIE L. JONES, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent. |
REPORT AND RECOMMENDATION TO DENY AMENDED § 2254 PETITION
On March 19, 2013, Petitioner Anthony Lamar Hardy, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. Respondent filed an answer, with exhibits. Doc. 17. Petitioner subsequently filed an amended § 2254 petition. Doc. 22. Respondent filed an answer to the amended petition on July 22, 2014, with additional exhibits. Doc. 24. Petitioner filed a reply on July 31, 2014. Doc. 26.
The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this matter. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons stated herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief, and the amended § 2254 petition should be denied.
By information filed January 18, 1991, the State of Florida charged Petitioner Anthony Lamar Hardy with four counts in the Second Judicial Circuit, Gadsden County, case number 91-CF-33, in connection with events that took place on or about January 3, 1991, at Pat's Grocery, a convenience store: one count of attempted armed robbery with a firearm, in violation of section 812.13(2)(a), Florida Statutes, and three counts of attempted first degree murder with a firearm, in violation of sections 777.04 and 782.04(1), Florida Statutes. Doc. 17 Ex. A at 5-6. Hardy proceeded to a jury trial on August 5 and 6, 1991, during which he testified. Doc. 17 Ex. E at 101-29. The jury found him guilty as charged, specifically finding "with a firearm" on each count. Id. at 213-14; Ex. A at 33-36. On August 16, 1991, the state trial court sentenced him to 30 years in prison on the first count and to life in prison on each of the other counts, with all terms concurrent. Id. Ex. A at 42-48; Ex. F at 9.
Hardy appealed his conviction and sentence to the First District Court of Appeal (DCA), assigned case number 1D91-2786. Id. Ex. J. The First DCA per curiam affirmed the case without an opinion on February 5, 1993, and the mandate issued February 23, 1993. Hardy v. State, 613 So. 2d 15 (Fla. 1st DCA 1993).
On August 9, 1994, Hardy filed a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Doc. 17 Ex. L at 1-51. The State filed a response. Id. at 52-59. The state trial court summarily denied the motion by order rendered February 14, 1996. Id. at 60-64. Hardy appealed to the First DCA, assigned case number 1D96-905, and that court per curiam affirmed the case without a written opinion on September 12, 1996. Hardy v. State, 680 So. 2d 427 (Fla. 1st DCA 1996). The mandate issued September 30, 1996. Doc. 17 Ex. M.
On March 4, 1997, Hardy filed another Rule 3.850 motion. Doc. 24 Ex. N at 1-12. The State filed a response. Id. at 58-63. The state trial court summarily denied the motion by order rendered May 30, 1997. Id. at 64-65. Hardy appealed to the First DCA, assigned case number 1D97-2558, and that court affirmed the case without an opinion on March 17, 1998. Hardy v. State, 709 So. 2d 539 (Fla. 1st DCA 1998). The mandate issued April 28, 1998. Doc. 17 Ex. O.
On October 28, 1998, Hardy filed a petition for writ of habeas corpus in the First DCA, assigned case number 1D98-4109. Doc. 17 Ex. P. The First DCA denied the petition on January 12, 1999. Id. Ex. Q. Hardy v. State, 731 So. 2d 653 (Fla. 1st DCA 1999).
On or about June 22, 1999, Hardy filed his first federal habeas corpus petition. Doc. 17 Ex. R. This Court denied the petition, assigned case number 4:99cv244-WS, by order filed April 17, 2001, finding the petition untimely. Id. Exs. U, V; see id. Ex. T (Report and Recommendation). This Court and the Eleventh Circuit Court of Appeals denied a certificate of appealability. Id. Exs. W, X.
On February 26, 2002, Hardy filed in the state trial court a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.800. Id. Ex. Y at 1-34. The court denied the motion by order rendered March 14, 2002. Id. at 35. On appeal, assigned case number 1D02-3761, the First DCA affirmed without an opinion on January 6, 2003. Id. Ex. Z; Hardy v. State, 838 So. 2d 1150 (Fla. 1st DCA 2003). Hardy filed a motion for rehearing, which the First DCA denied by order on February 20, 2003. Doc. 17 Ex. AA. The mandate issued March 10, 2003. Id. Hardy petitioned for certiorari review in the U.S. Supreme Court, and his petition was denied on October 8, 2003. Id. Exs. BB, CC.
On October 1, 2004, Hardy filed another Rule 3.800 motion in the state trial court, which he later amended. Id. Ex. DD at 1-52, 53-105. The State filed a response in which it conceded the first ground raised in Hardy's motion, which asserted the 30-year sentence for attempted armed robbery with a firearm was illegal because that offense is a second degree felony for which the maximum penalty is 15 years in prison. Id. at 111. The State also requested a pre-sentence investigation so that the State could pursue sentencing Hardy as a violent habitual felony offender. Id. at 112. A hearing took place on May 30, 2006. Id. Ex. FF. The court granted the Rule 3.800 motion in part and denied it in part. Specifically, on the first count, the court resentenced Hardy to 15 years, finding the original 30-year sentence illegal. Id. Ex. FF at 9. The court denied the remainder of the motion, leaving the remainder of the sentences as originally imposed, with all sentences still running concurrent. Id. at 9-10. The court entered a corrected judgment and sentence on May 30, 2006. Id. Ex. EE at 135-41.
Hardy appealed and counsel was appointed, who filed briefs in First DCA case number 1D06-3431. Id. Exs. GG, II. The State filed an answer brief, which conceded that Counts 2, 3, and 4, all of which charged attempted felony murder, should have been treated as first degree felonies and not reclassified as life felonies. Id. Ex. HH. The First DCA accepted the concession, and reversed and remanded the case for resentencing in an opinion issued May 4, 2009:
The State concedes the sentencing court erred in imposing life sentences for appellant Anthony Hardy's convictions for attempted felony murder. The State's concession of error is both professional and correct. A sentencing court may not reclassify attempted felony murder, a first-degree felony, as a life felony on the basis of the defendant's use of a firearm, when the firearm use is an essential element of the underlying felony, as it was here. See Traylor v. State, 785 So. 2d 1179, 1181 (Fla. 2000). Accordingly, the case is remanded for resentencing with respect to appellant's attempted felony murder convictions.
Id. Ex. JJ; Hardy v. State, 8 So. 3d 486 (Fla. 1st DCA 2009). The mandate issued June 1, 2009. Doc. 17 Ex. KK.
On remand, the state trial court appointed counsel for Hardy. Id. Ex. LL at 5-6. The State filed a Notice of Intent to Seek Enhanced Penalty as Habitual Felony Offender and/or Habitual Violent Felony Offender. Id. at 7-8. A resentencing hearing took place on July 16, 2009, during which Hardy was represented by counsel. Id. Ex. MM. In an order rendered July 16, 2009, the state trial court found Hardy a Habitual Violent Felony Offender (HVFO). Id. Ex. LL at 20-21. In a judgment and sentence rendered that same day, the court resentenced Hardy, as a HVFO, to 15 years in prison on Count 1, and to life in prison with the possibility of parole on Counts 2, 3, and 4, with the sentences to run concurrent, and with a 3-year minimum. Id. at 23-31.
Hardy again appealed to the First DCA. During the pendency of the appeal, assigned case number 1D09-3732, his counsel filed a Rule 3.800(b)(2) motion in the trial court on May 5, 2010. Doc. 17 Ex. OO at 87-95. A hearing took place on June 24, 2010. Id. Ex. PP. That same day, the trial court entered a new judgment and sentence on June 24, 2010, nunc pro tunc August 16, 1991, which restored the original 30-year sentence on Count 1, with a 10-year minimum, and with life sentences on the other counts, but with 15-year minimums, all sentences concurrent and imposed as HVFO. Id. Ex. OO at 99-108, Ex. PP at 12-15.
On August 4, 2010, Hardy filed another Rule 3.800(b)(2) motion. In an order rendered August 25, 2010, the trial court granted that motion, found it had no jurisdiction to resentence Hardy on Count 1 and, therefore, restored the 15-year non-HVFO sentence on that count, to run concurrent with the sentences on the other counts. Doc. 17 Ex. ZZ at 53.
On November 23, 2010, Hardy filed a third Rule 3.800(b)(2) motion. Doc. 17 Ex. QQ at 151-61. In an order rendered January 20, 2011, the trial court denied the motion. Id. at 162-65.
On October 26, 2011, the First DCA affirmed without a written opinion. Id. Ex. UU; Hardy v. State, 73 So. 3d 763 (Fla. 1st DCA 2011). The mandate issued November 14, 2011. Doc. 17 Ex. VV. On March 1, 2012, Hardy filed a pro se Motion to Take Judicial Notice/Motion to Reinstate Appellate Proceedings in the First DCA. Doc. 17 Ex. WW. The First DCA denied the motion by order dated July 5, 2012. Hardy then filed a petition for writ of mandamus in the Florida Supreme Court, which that court denied on October 17, 2012. Id. Exs. XX, YY; Hardy v. State, 104 So. 3d 1084 (Fla. 2012).
On December 1, 2011, Hardy filed a pro se motion to vacate sentence. Doc. 17 Ex. ZZ at 1-25. In an order rendered July 3, 2012, the state trial court denied the motion. Id. at 25-28. Hardy appealed to the First DCA, assigned case number 1D12-4311, and that cou...
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