Harold v. Sec'y, Case No. 3:16-cv-888-J-34JRK

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
PartiesGLENN HAROLD, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
Docket NumberCase No. 3:16-cv-888-J-34JRK
Decision Date21 February 2019
ORDER
I. Status

Petitioner Glenn Harold, an inmate of the Florida penal system, initiated this action on June 30, 2016,1 by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1), with an attached memorandum in support of the Petition (Memorandum; Doc. 2). In the Petition, Harold challenges a 2009 state court (Duval County, Florida) judgment of conviction for aggravated battery with a firearm and possession of a firearm by a convicted felon. Harold raises four grounds for relief. See Petition at 5-10.2 Respondents have submitted a memorandum in opposition to the Petition. See Answer to Petition for Writ of Habeas Corpus (Resp.; Doc. 11) with exhibits (Resp. Ex.). Harold submitted a brief in reply on July 4, 2017. See Reply to Respondents' Show Cause Answer (Reply; Doc. 12). This case is ripe for review.

II. Procedural History

On April 25, 2008, the State of Florida (State) charged Harold by way of an amended Information with attempted second-degree murder (count one), possession of a firearm by a convicted felon (count two), and driving while license suspended or revoked - felony habitual offender (count three). Resp. Ex. 1 at 51. On June 18, 2009, Harold, through counsel, filed a motion to sever count one from the remaining counts. Id. at 85-86. The circuit court granted the motion to sever on the same day. Id. at 84. Harold proceeded to a jury trial on count one, at the conclusion of which the jury found him guilty of the lesser-included offense of aggravated battery with a deadly weapon, with a specific finding that Harold discharged a firearm causing great bodily harm. Id. at 97-98. On July 13, 2009, Harold entered a negotiated plea of guilty to count two in exchange for the State entering a nolle prosequi as to count three. Resp. Ex. 2 at 199-200. Pursuant to the plea agreement, the circuit court sentenced Harold to a term of incarceration of five years in prison with a three-year minimum mandatory as to count two. Id. at 199, 205-06, 254. The circuit court further sentenced Harold to a term of incarceration of twenty-five years in prison with a twenty-five-year minimum mandatory as to count one and ordered both sentences to run concurrently. Id. at 204, 206, 247, 254.

Harold appealed the judgment of conviction and sentences to Florida's First District Court of Appeal (First DCA). Id. at 217. Harold, with the assistance of counsel, raised the following claims in his initial brief: the circuit court abused its discretion when it denied Harold's request for an additional peremptory strike as to juror Cuevas (issue one); the cumulative effect of the prosecutor's prejudicial comments during closing argument constituted fundamental error (issue two); and the circuit court's failure to give thecomplete jury instruction for the justifiable use of deadly force constituted reversible error (issue three). Resp. Ex. 5 at 17-49. The State filed an answer brief. Resp. Ex. 6. On October 20, 2010, the First DCA per curiam affirmed the judgment and sentences without a written opinion, and it issued the Mandate on November 5, 2010. Resp. Ex. 8.

On October 28, 2011, Harold filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. 9 at 1-26. In his Rule 3.850 Motion Harold alleged his trial counsel was ineffective because he: failed to interview and call Doctor Steven Porter as a witness (ground one); failed to properly object to the jury instruction for the justifiable use of deadly force (ground two); failed to object to improper prosecutorial comments during closing argument (ground three); inadequately argued a motion for judgment of acquittal (ground four); failed to object to an improper jury instruction (ground five); failed to use a peremptory challenge on juror Brandis Cuevas (ground six); failed to call a ballistics expert to refute the victim's testimony (ground seven); failed to obtain surveillance footage from the scene of the crime (ground eight); and failed to demonstrate to the jury that his fist caused the injury to the victim's chin (ground nine). Id.

On February 16, 2012, Harold filed an amended Rule 3.850 motion (Amended Rule 3.850 Motion), in which he raised the following claims: counsel failed to adequately question and use a peremptory challenge on juror Cuevas (ground one); counsel failed to object when the circuit court only allowed six peremptory challenges when Harold was entitled to ten (ground two); the circuit court abused its discretion in not removing juror Cuevas after a valid challenge (ground three); counsel failed to object to the reading of a partial jury instruction for self-defense (ground four); counsel failed to object to improperprosecutorial comments (ground five); counsel failed to obtain exculpatory surveillance footage (ground six); and counsel failed to object to confusing jury instructions (ground seven). Id. at 27-43. On November 5, 2012, Harold subsequently filed an amendment to his Amended Rule 3.850 Motion, adding two additional claims: the State failed to prove corpus delicti for count one (ground eight); and the circuit court failed to use the proper standard for ruling on Harold's motion for judgment of acquittal (ground nine). Id. at 44-54.

On August 30, 2013, Harold filed another amended Rule 3.850 motion (Second Amended Rule 3.850 Motion). Id. at 55-92. Harold raised the following claims in his Second Amended Rule 3.850 Motion: counsel failed to properly investigate and ultimately use a peremptory challenge on juror Cuevas (ground one); counsel failed to object when the circuit court only allowed six peremptory challenges when Harold was entitled to ten (ground two); the circuit court abused its discretion in not removing juror Cuevas after a valid challenge (ground three); counsel failed to object to the reading of a partial jury instruction for self-defense (ground four); counsel failed to object to improper prosecutorial comments (ground five); the State failed to prove corpus delicti for count one (ground six); the circuit court failed to use the proper standard for ruling on Harold's motion for judgment of acquittal (ground seven); and counsel failed to file a "Stand Your Ground" motion (ground eight). Id.

On May 29, 2014, Harold again filed an amended Rule 3.850 Motion (Third Amended Rule 3.850 Motion). Id. at 93-136. In his Third Amended Rule 3.850 Motion, Harold raised the same claims as he did in his Second Amended Rule 3.850 Motion and added a ninth ground for relief: counsel failed to properly convey a plea offer (groundnine). Id. On November 4, 2014, Harold filed another amended Rule 3.850 Motion (Fourth Amended Rule 3.850 Motion), in which he realleged all the claims raised in Harold's Third Amended Rule 3.850 Motion. Id. at 137-82.

On February 4, 2016, the circuit court denied all of the grounds raised in Harold's Rule 3.850 Motions. Resp. Ex. 10 at 1-33. Harold appealed, arguing the circuit court erred in denying his Rule 3.850 Motions without an evidentiary hearing. Resp. Ex. 11. The State did not file an answer brief. Resp. Ex. 12. On May 27, 2016, the First DCA per curiam affirmed the circuit court's denial of Harold's Rule 3.850 Motions without a written opinion, and it issued the Mandate on June 22, 2016. Resp. Ex. 13.

III. One-Year Limitations Period

This action is timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the need for a federal evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). "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); Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017). "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." Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the recordbefore the Court. Because the Court can "adequately assess [Harold'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. Governing Legal Principles
A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a state prisoner's federal petition for habeas corpus. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S. Ct. 1432 (2017). "'The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.'" Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of final state court decisions is "'greatly circumscribed' and 'highly deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion explaining its rationale in order for the state court's decision to qualify as an adjudication on the merits. See Harrington v....

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