Harmon v. Barton

• Decision Date: 20 February 1990
• Docket Number: No. 88-3754,88-3754
• Parties: James HARMON, III, # 080164, Petitioner-Appellant, v. Tom L. BARTON, Robert Butterworth, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1268

894 F.2d 1268

James HARMON, III, # 080164, Petitioner-Appellant, v. Tom L. BARTON, Robert Butterworth, Respondents-Appellees.

No. 88-3754.

United States Court of Appeals,

Eleventh Circuit.

Feb. 20, 1990.

Daniel A. Smith, Jacksonville, Fla., for petitioner-appellant.

John M. Koenig, Jr., Asst. Atty. Gen., Director, Crim. Appeals, Dept. of Legal Affairs, Tallahassee, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, HATCHETT, Circuit Judge, and MORGAN, Senior Circuit Judge.

MORGAN, Senior Circuit Judge:

James Harmon III, a Florida prisoner, appeals from the district court's judgment denying his petition for habeas corpus relief. Because the state court clearly and expressly stated that its decision rested on an independent and adequate state procedural ground, we refuse to address the merits of petitioner's claim for habeas corpus relief. Accordingly, we affirm the district court's order.

FACTS AND PROCEDURAL BACKGROUND

In 1981, Harmon, who was then 17 years old, pleaded guilty to two counts of second degree murder, one count of armed robbery, and one count of kidnapping. In a separate case, he was convicted by a jury of one count of armed robbery and one count of kidnapping. In total, Harmon was adjudicated guilty of committing six felonies, each "punishable by imprisonment for a term of years not exceeding life imprisonment" pursuant to Sections 782.04(2), 787.01(2), and 812.13(2)(a), Fla.Stat. (1981). When the pleas were taken, the court advised Harmon that the maximum sentence on each count was life imprisonment, but that there was no plea agreement as to the sentence. Instead of life sentences, the court imposed six consecutive terms of one hundred years each and retained jurisdiction to deny him parole during the first one-third of the total sentence, or for two hundred years. Harmon's attorney objected that the court could not legally retain jurisdiction over a period greater than Harmon's actual lifetime, but did not move to withdraw the guilty pleas.

Harmon appealed, arguing that the court erred in sentencing him to six hundred years and retaining jurisdiction for two hundred years because the sentence exceeded the statutory maximum. Harmon requested correction of the sentences, but did not request withdrawal of the pleas. The appellate court affirmed and certified the following issue to the Florida Supreme Court: "[W]hether a sentencing court, authorized to impose for each of six felonies a term of years not exceeding life imprisonment, may impose six consecutive 100-year terms and retain jurisdiction for one-third of each sentence, aggregating 200 years, to review any parole release order of the Parole Commission." The Florida Supreme Court accepted jurisdiction, answered the question affirmatively, and upheld the convictions and sentences. Harmon v. State, 438 So.2d 369 (Fla.1983).

On September 18, 1985, Harmon filed his first state motion for post-conviction relief which was denied on February 2, 1986. On February 13, 1987, Harmon filed a second motion for post-conviction relief pursuant to Rule 3.850, Fla.R.Crim.P., alleging that he should be allowed to withdraw his guilty pleas as involuntary because the court did not advise him that it could sentence him to one hundred year terms and retain jurisdiction for two hundred years. The state court, without an evidentiary hearing, denied Harmon's motion on March 5, 1987. The court found that Harmon's claim was procedurally barred because he should have, but did not raise it on direct appeal, or in the previous motion for post-conviction relief, and he did not explain his failure to raise the claim earlier. ¹ On November On February 17, 1988, Harmon filed this federal habeas corpus petition in the Middle District of Florida alleging that the state court did not advise him before he pleaded guilty that the court could retain jurisdiction over a portion of his sentence. He sought to withdraw his pleas. In a report and recommendation, the magistrate found that Harmon's claim was procedurally barred because it was not raised on direct appeal, and that Harmon had not shown cause and prejudice. Over Harmon's objections, the district court adopted the magistrate's recommendation and denied the petition. ² This appeal followed.

20, 1987, the state appellate court affirmed without comment.

DISCUSSION

A. Procedural Default

Considerations of comity and concerns for the orderly administration of criminal justice preclude federal courts from entertaining a petition for a writ of habeas corpus without restriction. ³ One such limitation is procedural default. Under clear authority beginning with Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), a state habeas corpus petitioner who fails to raise his federal constitutional claim in state court is procedurally barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default. 433 U.S. at 87, 97 S.Ct. at 2506. See also Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). We have held that where the state court correctly applies a procedural default principle of state law, Sykes requires the federal court to abide by the state court's decision. Meagher v. Dugger, 861 F.2d 1242 (11th Cir.1988) (citing Ratcliff v. Estelle, 597 F.2d 474, 478 (5th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979)).

In Florida, a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 cannot be utilized for a second appeal to consider issues that either were raised on direct appeal or could have been raised in that appeal. ⁴ See, e.g., Jones v. State, 446 So.2d 1059 (Fla.1984); McCrae v. State, 437 So.2d 1388 (Fla.1983); Armstrong v. State, 429 So.2d 287 (Fla.1983); Ford v. State, 407 So.2d 907 (Fla.1981). Moreover, Rule 3.850 imposes a procedural bar to successive motions for such relief when the issue could have been raised in a previous motion:

A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or his attorney to assert those grounds in a prior motion constitutes an abuse of the procedure governed by these rules.

The Supreme Court of Florida has held that this provision, effective January 1, 1985, imposes upon prisoners filing successive motions the affirmative duty of demonstrating why the grounds therein were not contained in the first motion. ⁵ Christopher v. State, 489 So.2d 22, 24 (Fla.1986); Tanner v. State, 502 So.2d 1008 (Fla.Dist.Ct.App.1987). In order to establish justification for the failure to raise the issue in the first motion, for example, the petitioner could show in his petition that there had been a change in the law since the first motion or that there are facts relevant to issues in the cause that could not have been discovered at the time the first motion was filed. Witt v. State, 465 So.2d 510 (Fla.1985). ⁶

In the present case, Harmon alleges that his plea was involuntary because he was not informed that the trial court could retain jurisdiction over one-third of his sentence. This issue could have been raised on direct appeal, see, e.g., Schmidt v. State, 464 So.2d 1302 (Fla.Dist.Ct.App.1985); Mrozowski v. States, 444 So.2d 587 (Fla.Dist.Ct.App.1984), and in a motion to vacate and set aside the sentence. See, e.g., Green v. State, 406 So.2d 1148 (Fla.Dist.Ct.App.1981), aff'd, State v. Green, 421 So.2d 508 (Fla.1982). It also could have been raised in a motion for post-conviction relief pursuant to Rule 3.850. See, e.g., Murray v. State, 469 So.2d 940 (Fla.Dist.Ct.App.1985); Stanley v. State, 501 So.2d 90 (Fla.Dist.Ct.App.1987); Fowler v. State, 443 So.2d 125 (Fla.Dist.Ct.App.1983). The state court concluded that, consistent with state law, Harmon was procedurally barred from pursuing his claim because he neither raised the issue on direct appeal nor raised it in his first post-conviction motion and did not explain his failure to raise the claim earlier. ⁷

In the recent decision of Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), the Supreme Court made clear that the "plain statement rule" of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), applies in federal habeas corpus proceedings. Under the Long rule, if a state court issues a "plain statement" that its decision rests on an independent and adequate state ground, then even if the state court issues an alternative ruling based on its interpretation of federal law, federal courts should not address the merits of the federal claim. 463 U.S. at 1041, 103 S.Ct. at 3476. If a state court's reasons for rejecting the claim are ambiguous, however, federal review is not precluded. Id.

The habeas petitioner in Harris violated a state procedural bar rule by not raising his ineffective assistance of counsel claim on direct appeal. When he raised this claim at the post-conviction relief stage, the state appellate court dismissed the claim without clearly relying on the state procedural bar as an independent ground for dismissal. The state appellate court's opinion made only ambiguous references to the applicable state procedural bar, while going on to rely on federal law in rejecting petitioner's ineffectiveness claim on its merits. The Harris Court recognized that "the problem of ambiguous state-court references to state law ... is common to both direct and habeas review." In an attempt to find "a common solution" to this problem, the Court held that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its...