Herron v. Sec'y
| Decision Date | 11 September 2014 |
| Docket Number | Case No. 8:11-CV-1483-T-27TGW |
| Parties | TRENTON M. HERRON, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner, an inmate of the Florida penal system proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("petition") challenging probation revocation proceedings in 2009 with respect to convictions for three counts of sale of cocaine and three counts of possession of cocaine entered in 2006 (Dkt. 1). Respondent filed a response to the petition (Dkt. 19), and Petitioner filed a reply (Dkt. 23).
On March 13, 2006, Petitioner pleaded no contest to two counts of possession of cocaine and two counts of sale of cocaine in case number CRC04-15742CFANO, and one count of possession of cocaine and one count of sale of cocaine in case number CRC05-13105CFANO (Respondent's Exs. 1-4). Petitioner was sentenced to five years probation on all counts (Respondent's Ex. 1). Petitioner did not appeal his convictions or sentences.
In December 2008, Petitioner's probation officer filed a 2nd Amended Affidavit alleging thatPetitioner violated certain conditions of his probation (Respondent's Ex. 1). On January 30, 2009, the state court held a revocation hearing, at which Petitioner admitted to the violations of probation (Respondent's Ex. 2). Petitioner's probation was revoked, and on February 6, 2009, he was sentenced to three concurrent terms of 15 years imprisonment for the three sale of cocaine counts, and to three concurrent terms of 5 years imprisonment for the three possession of cocaine counts (Respondent's Exs. 3-4). Petitioner did not file a direct appeal. He did, however, file pro se motions to withdraw his plea pursuant to Rule 3.170, Florida Rules of Criminal Procedure (Respondent's Exs. 5-6). On February 27, 2009, the state court struck both motions as unauthorized pro se pleadings because Petitioner was represented by counsel at the time he filed the motions (Respondent's Ex. 6).
On June 1, 2009, Petitioner filed a state petition for a writ of habeas corpus, seeking a belated appeal of his sentence and the denial of his motion to withdraw his plea (Respondent's Exs. 7, 8, 11). Following an evidentiary hearing on the petition on March 5, 2010 (Respondent's Ex. 17), the commissioner/judge filed his Findings and Recommendation in the appellate court on March 18, 2010, recommending the appellate court deny the petition for a belated appeal (Respondent's Ex. 18). The appellate court denied Petitioner's petition for a belated appeal on April 29, 2010 (Respondent's Ex. 19).
While Petitioner's belated appeal proceedings were pending, he filed a Motion for Post Conviction Relief pursuant to Florida Rules of Criminal Procedure, Rule 3.850 on June 25, 2009 (see Respondent's Ex. 20 at p. 1). On August 25, 2009, the state post conviction court issued an order denying Ground Three of the motion, dismissing Grounds Five and One (A), and dismissing the remaining grounds without prejudice to Petitioner filing an amended motion as to those grounds(Id. at p. 7). Petitioner appealed. On May 7, 2010, the appellate court dismissed the appeal for lack of jurisdiction, and remanded the case to the state post conviction court with directions to enter a revised order allowing Petitioner to amend his motion within a reasonable time (Respondent's Ex. 22).
While the appeal of Petitioner's first 3.850 motion was pending, Petitioner filed a second 3.850 motion in December 2009, which he titled "Belated Amended Motion for Post Conviction Relief" (Respondent's Ex. 30). On March 24, 2010, the state post conviction court issued an order denying several grounds, and dismissing the remaining grounds without prejudice (Respondent's Ex. 31). Petitioner appealed. On October 13, 2010, the appellate court affirmed the denial of Petitioner's "belated" 3.850 motion (Respondent's Ex. 35).
While the appeal of Petitioner's "belated" 3.850 motion was pending, the state post conviction court issued an order on June 15, 2010, granting Petitioner leave to amend his first 3.850 motion (Respondent's Ex. 23).1 Petitioner filed his "Amended Motion for Post-Conviction Relief" on July 6, 2010 (Respondent's Ex. 24). The state post conviction court denied the amended 3.850 motion on December 6, 2010 (Respondent's Ex. 25). Petitioner appealed. On October 7, 2011, the appellate court affirmed the denial of Petitioner's amended 3.850 motion (Respondent's Ex. 29).
While the appeal of Petitioner's amended 3.850 motion was pending, Petitioner filed a second Rule 3.800(a) motion to correct illegal sentence on June 17, 2011 (Respondent's Ex. 44). The state post conviction court denied the motion on July 18, 2011 (Respondent's Ex. 45).Petitioner appealed. The appellate court affirmed the denial of Petitioner's second Rule 3.800(a) motion on February 22, 2012, and issued its mandate on March 6, 2012 (Respondent's Ex. 47).
On June 28, 2011, Petitioner filed the instant federal habeas petition in this court (Dkt. 1).
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) 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.
§ 2244(d) "applies on a claim-by-claim basis, not on a petition-wide basis." Werdell v. Dep't of Corr., 520 Fed. Appx. 854 (11th Cir. 2013) (citing Zack v. Tucker, 704 F.3d 917, 918 (11th Cir.) (en banc), cert. denied, 134 S. Ct. 156 (2013)).
Respondent contends that the appropriate statutory trigger for the federal limitations period is § 2244(d)(1)(A), the date on which the judgment of conviction became final by the conclusion of direct review or the expiration of the time for seeking such review (Dkt. 19 at p. 21). Respondent further argues that "the relevant Judgment is [Petitioner's] original Judgment and Sentence resulting from Petitioner's pleas of nolo contendere and sentences to probation on all counts on March 13, 2006." (Id. at p. 22). The Court disagrees.
For purposes of the habeas statute of limitations Burton v. Stewart, 549 U.S. 147, 156 (2007) (quotation omitted). With the exception of one claim, the petition attacks the 2009 sentence upon revocation of probation, not the 2006 probation sentence.2
Therefore, for all but one claim, Petitioner's limitations period commenced at the time his 2009 sentence became final upon conclusion of its direct review, or the expiration of time for such review. Respondent correctly concedes that if the relevant judgment for purposes of the statute of limitations is the 2009 probation revocation judgment, the petition is timely filed (Dkt. 19 at pp. 27-30). Accordingly, the Court concludes that Petitioner's claims, with the exception of his double jeopardy claim in Ground One, sub-claim (M), are timely.3
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 is highly deferential. Those 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 (2000). It is not enough that the federal courts believe that the state court was wrong; it must be demonstrated that the state court decision was "objectively unreasonable." Id. Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002). "Under § 2254(d), a habeas court must determine what arguments or theories supported. . .the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Wetzel v. Lambert, 132 S.Ct. 1195, 1198 (2012) (citing Harrington v. Richter, 131 S.Ct. 770, 786 (2011)).
To have a facially valid claim alleging ineffective assistance of counsel, Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires 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. However, if a claim fails to satisfy the prejudice component, the court need not make a ruling on the performance component. Id. at 697.
"Surmounting Strickland's...
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