Harter v. Sec'y, Case No. 8:08-CV-202-T-27EAJ
| Decision Date | 24 February 2011 |
| Docket Number | Case No. 8:08-CV-202-T-27EAJ |
| Parties | JOHNATHON HARTER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). Respondent filed a Motion to Dismiss Petition as Time-Barred, Response and Memorandum of Law (Dkt. 8). Petitioner filed a response/reply to the Respondent's motion to dismiss/ response (Dkt. 13), and a supplemental reply (Dkt. 16). After consideration, Petitioner's petition is DENIED.
On March 21, 1997, Harter, while intoxicated, ran the vehicle he was driving into the rear of a van stopped in the emergency lane of an interstate. Two children in the van were killed, and their parents, and a third child, sustained injuries. Petitioner was charged by Information with two counts of DUI manslaughter, one count of DUI serious bodily injury, and two counts of DUI with property damage or personal injury (misdemeanors). (Respondent's Ex. 1, Vol. I at pp 16-19). On March 12, 1998, Harter entered an "open" plea of no contest as charged. (Id. at pp. 68-80). He was sentenced to 26 years in prison on each of the three felony counts, to run concurrently, and to time served on each of the misdemeanor counts. (Id. at pp. 55-65).
Petitioner appealed his sentences. (Respondent's Ex. 2). On June 23, 2000, the appellate court remanded the case to the trial court to reconsider the sentences. (Respondent's Ex. 11); Harter v. State, 779 So. 2d 391 (Fla. 2d DCA 2000) [table].
On remand, Petitioner filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 or, in the alternative, to withdraw the plea under Rule 3.170(f) on December 11, 2000 (Respondent's Ex. 12, Vol. I at pp. 36-49). An evidentiary hearing was conducted on September 20-21, 2001, solely on the Rule 3.170(f) motion to withdraw the plea ). On October 15, 2001, the state post-conviction court denied Petitioner's motion to withdraw his plea (Respondent's Ex. 12, Vol. II). On December 6, 2002, the appellate court per curiam affirmed the denial of Petitioner's Rule 3.170(f) motion (Respondent's Ex. 16); Harter v. State, 835 So. 2d 1125 (Fla. 2d DCA 2002) [table]. The appellate court mandate issued on January 3, 2003 (Respondent's Ex. 17).
Meanwhile, on November 29, 2001, the state court resentenced Petitioner to 25 years prison on each felony count (Respondent's Ex. 19 at pp. 36-40). Petitioner appealed the resentencing judgment but later took a voluntary dismissal (Respondent's Ex. 22). The appellate court dismissed the appeal on February 13, 2003 (Respondent's Ex. 23); Harter v. State, 840 So. 2d 235 (Fla. 2d DCA 2003) [table].
On November 25, 2003, Petitioner filed a Rule 3.850 motion for post-conviction relief (Respondent's Ex. 25, Vol. I at pp. 38-52). An evidentiary hearing was held on November 19, 2004 (Id. at pp. 87-209), and December 17, 2004 (Respondent's Ex. 25, Vol. II at pp. 210-303). On December 21, 2004, Petitioner filed a "Notice of Supplemental Issue" in which he raised a new claim, to wit, that his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004) (Id. at pp. 62-63). On January 25, 2005, the state post-conviction court denied Petitioner's Rule 3.850 motion (Respondent's Ex. 25, Vol. I at pp. 64209; Vol. II at pp. 210-380). The appellate court per curiam affirmed the denial of the Rule 3.850 motion (Respondent's Ex. 30); Harter v. State, 923 So. 2d 501 (Fla. 2d DCA 2006) [table]. The appellate court mandate issued on March 17, 2006 (Respondent's Ex. 31).
On June 12, 2006, Petitioner filed a motion to correct illegal sentence pursuant to Florida Rules of Criminal Procedure, Rule 3.800(a) (Respondent's Ex. 32). The state post-conviction court denied the Rule 3.800(a) motion on May 25, 2007 (Respondent's Ex. 34). On October 3, 2007, the appellate court affirmed the denial of the Rule 3.800(a) motion (Respondent's Ex. 37); Harter v. State, 969 So. 2d 379 (Fla. 2d DCA 2007). The appellate court mandate issued on December 17, 2007 (Respondent's Ex. 40).1
Petitioner filed the instant petition for writ of habeas corpus in this Court on January 29, 2008 (Dkt. I).2
Respondent asserts that the petition should be dismissed as time-barred (Dkt. 8 at pp. 19-22). The Court disagrees.
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) created a new limitations period for petitions for writ of habeas corpus brought pursuant to 28 U.S. C. §2254. 28 U. S.C. §2244(d)(1)(A). Additionally, '' [t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).
Petitioner's judgment became final on May 14, 2003, ninety days after the appellate court dismissed his direct appeal of the resentencing judgment on February 13, 2003. See Bond v. Moore, 309 F.3d 770, 772 (11th Cir. 2002)(one-year limitations period for Florida prisoner's federal habeas petition started to run when time expired for filing petition for certiorari from state high court's denial of discretionary review). See also Latham v. United States, 527 F.3d 651 (7th Cir. 2008) (); U.S. v. Gentry, 432 F.3d 600, 604 n.2 (5th Cir. 2005); Brandon v. McNeil, 2009 U.S. Dist. LEXIS 129755, *12, 2009 WL 559530, at *4 (N.D. Fla. Mar. 4, 2009)(citations omitted).3
Subsection (2) of § 2244(d) provides that the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." Petitioner properly filed a Rule 3.850 motion for post-conviction relief in the trial court on November 25, 2003, after one hundred ninety-five days of the federal limitations period had elapsed. One hundred seventy days remained in the federal limitations period.
The Rule 3.850 motion remained pending until March 17, 2006, when the appellate mandate issued in Case No. 2D05-1019. Petitioner properly filed a Rule 3.800(a) motion for post-conviction relief in the trial court on June 12, 2006, after another eighty-seven days of the federal limitations period had elapsed. Eighty-three days remained in the federal limitations period.
The Rule 3.800(a) motion remained pending until December 17, 2007, when the appellate mandate issued in Case No. 2D07-3022. Petitioner filed his federal habeas petition in this Court on January 29, 2008, after another forty-three days of the federal limitations period had elapsed. Forty days remained in the federal limitations period. Thus, Petitioner's petition was timely (195 + 87 + 43 = 325 days). Accordingly, Respondent's motion to dismiss the petition as untimely is denied.
Under 28 U.S.C. § 2254(d) and (e) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court's review of the state court's factual findings must be highly deferential. Such findings are presumed to be correct unless rebutted by clear and convincing evidence. Similarly, the state courts' resolutions of issues of law, including constitutional issues, must be accepted unless they are found to be "contrary to" clearly established precedent of the Supreme Court of the United States or involved an "unreasonable application" of such precedent. Williams v. Taylor, 529 U.S. 362, 386 (2000). It is not enough that the federal courts believe that the state court was wrong; the state court decision must have been "objectively unreasonable." Id.; Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002).
To prevail on a claim of ineffective assistance of trial or appellate counsel, a Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires a Petitioner to demonstrate that counsel's performance was deficient and "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.
The two-pronged Strickland test is applicable to ineffective assistance of counsel claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). As applied to the plea situation, the first prong of Strickland remains the same in that the attorney's conduct must fall within the range of reasonable conduct. Hill, 474 U.S. at 58. Counsel owes a lesser duty to a client who pleads guilty than to one who goes to trial, however, and in the former case, counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between entering a guilty plea and going to trial. Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). To impart such an understanding to the accused, counsel merely must make an independent examination of the facts, circumstances, pleadings and laws involved, and then offer counsel's informed opinion as to the best course to be followed in protecting the interests of the client. Id.
The second prong of the Strickland test focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea...
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