Harmon v. Sec'y

• Decision Date: 13 April 2015
• Docket Number: Case No. 3:12-cv-772-J-34JBT
• Parties: WILLIE LEE HARMON, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

WILLIE LEE HARMON, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:12-cv-772-J-34JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

April 13, 2015

ORDER

I. Status

Petitioner Willie Lee Harmon, an inmate of the Florida penal system, initiated this action on July 9, 2012, by filing a pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28 U.S.C. § 2254 and a Supplement (Doc. 5). In the Petition, Harmon challenges a 2007 state court (Duval County, Florida) judgment of conviction for burglary of an occupied structure. Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Answer in Response to Order to Show Cause and Petition for Writ of Habeas Corpus (Response; Doc. 12) with exhibits (Resp. Ex.). On October 19, 2012, the Court entered an Order to Show Causeand Notice to Petitioner (Doc. 7), admonishing Harmon regarding his obligations and giving Harmon a time frame in which to submit a reply. Harmon submitted a brief in reply. See Petitioner's Reply to Respondents' Answer to show Cause and Petition for Writ of Habeas Corpus (Reply; Doc. 14); Supplement (Doc. 15). This case is ripe for review.

II. Procedural History

On January 22, 2007, the State of Florida charged Harmon with burglary of an occupied structure. Resp. Ex. C at 9, Information. Harmon proceeded to trial in April 2007, see Resp. Ex. C, Transcript of the Jury Trial (Tr.), at the conclusion of which, on April 24, 2007, a jury found him guilty of burglary of an occupied structure, as charged. See Resp. Ex. C at 62, Verdict; Tr. at 310. On May 24, 2007, the court sentenced Harmon to a term of imprisonment of fifteen years. Resp. Ex. C at 78-83, Judgment; 95-113, Transcript of the Sentencing (Sentencing Tr.).

On appeal, Harmon, with the benefit of counsel, filed an initial brief, arguing that the trial court erred when it: impermissibly limited Harmon's voir dire examination (ground one), and failed to permit Harmon to testify about whether he had the intent to commit theft (ground two). Resp. Ex. D. In its answer brief, the State sought affirmance on the grounds of harmless errorand failure to preserve the alleged errors for appellate review.¹ Resp. Ex. E. On July 31, 2008, the appellate court affirmed Harmon's conviction and sentence per curiam, with a separate concurring opinion, see Harmon v. State, 987 So.2d 241 (Fla. 1st DCA 2008); Resp. Ex. F, and the mandate issued on August 18, 2008, see Resp. Ex. G. Harmon did not seek review in the United States Supreme Court.

On January 21, 2009, Harmon filed a pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. I at 1-10. In his request for post conviction relief, Harmon asserted that counsel was ineffective because she failed to object to: Ms. Hortense Johnson's service as a juror (ground one); the trial court's limiting Harmon's testimony as to his intent upon entering the property (ground two); and the State's pretrial motion in limine (ground four).² He also asserted that counsel was ineffective because she failed to impeach Chris Scarborough, a State witness, when he described the area in question as being a fenced-in secure area (ground three), and thatcounsel's cumulative errors substantially impaired Harmon's right to a fair trial (ground five). In an amended request for post conviction relief, Harmon asserted that the trial court erred when it sentenced him as a habitual felony offender (ground six). Id. at 18-21. The State responded. Id. at 22-29. On June 9, 2009, the circuit court denied Harmon's motion, as to the five ineffectiveness claims, for the reasons set forth in the State's response. Id. at 30-100. Harmon did not appeal.

On August 9, 2009, Harmon filed a pro se motion to correct illegal sentence. Id. at 104-08. The circuit court denied the motion on September 23, 2009. Id. at 109-24. Harmon did not appeal.

On October 16, 2009, Harmon filed a second motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Id. at 125-55. He subsequently supplemented the motion on December 15, 2009, March 2, 2010, March 9, 2010, and April 27, 2010. Id. at 156-60, 161-77, 178, 179-208, 209-25. In his requests for post conviction relief, he asserted that counsel was ineffective because she failed to present a defense that he could not be convicted of burglary of an occupied structure because no one occupied the fenced-in area where Harmon was apprehended, id. at 127, 211, and failed to impeach three State witnesses (Sara Miller, Christopher Scarborough, and Detective Noell Dunn), id. at 164-65. He also asserted that the trial court lacked subject matter jurisdiction to enter the judgment or impose sentence. Id. at 157.The State responded. Id. at 227-63. On September 1, 2010, the circuit court denied Harmon's motion based on the State's reasons. Id. at 264-302. On appeal, Harmon filed a pro se brief, see Resp. Ex. J, and the State notified the court that it did not intend to file an answer brief, see Resp. Ex. K. On March 9, 2011, the appellate court affirmed the trial court's denial per curiam, see Harmon v. State, 64 So.3d 1264 (Fla. 1st DCA 2011); Resp. Ex. L, and later denied Harmon's motion for rehearing on April 27, 2011, see Resp. Exs. M; N; O; P. The mandate issued on July 26, 2011. See Resp. Ex. Q.

On January 10, 2011, Harmon filed a pro se motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Resp. Ex. S at 1-5. The court denied the motion on November 30, 2011. Id. at 6-29. On March 30, 2012, the appellate court affirmed the trial court's denial per curiam, see Harmon v. State, 93 So.3d 1016 (Fla. 1st DCA 2012); Resp. Ex. T, and later denied Harmon's motion for rehearing on June 6, 2012, see Resp. Exs. U; V. The mandate issued on June 22, 2012. See Resp. Ex. W.

On August 26, 2011, Harmon filed a pro se petition for writ of habeas corpus. Resp. Ex. Y. In the petition, he asserted that appellate counsel was ineffective because he failed to raise the following issues on direct appeal: the trial court erred when it summarily denied Harmon's motion for a new trial, and failed to define the term "curtilage" to the jury. Citing Florida Rule ofAppellate Procedure 9.141(d)(5),³ the appellate court dismissed the petition on September 23, 2011. Resp. Ex. Z.

III. One-Year Limitations Period

The Petition appears to be timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. The pertinent facts of this case are fully developed in the record before the Court. Because this Court can "adequately assess [Petitioner's]claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Standard of Review

The Court will analyze Harmon's claims under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(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.

Thus, 28 U.S.C. § 2254(d) "bars religation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 131 S.Ct. 770, 784 (2011). As the United States Supreme Court stated, "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burtv. Titlow, 134 S.Ct. 10, 16 (2013). This standard of review is described as follows:

Under AEDPA, when the state court has adjudicated the petitioner's claim on the merits, a federal court may not grant habeas relief unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). "Under § 2254(d)(1)'s 'contrary to' clause, we grant relief only '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.'" Jones v. GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). "Under § 2254(d)(1)'s 'unreasonable application' clause, we grant relief only '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. (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495).

For § 2254(d), clearly established federal law includes only the holdings of the Supreme Court - not Supreme

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