Hinson v. Tucker

• Decision Date: 25 October 2011
• Docket Number: Case No. 3:10cv480/RV/MD
• Parties: ROBERT LEE HINSON, JR., Petitioner, v. KENNETH S. TUCKER, Respondent.1
• Court: U.S. District Court — Northern District of Florida

ROBERT LEE HINSON, JR., Petitioner,

v.KENNETH S. TUCKER, Respondent.¹

Case No. 3:10cv480/RV/MD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

Dated: October 25, 2011

REPORT AND RECOMMENDATION

This cause is before the court on petitioner's petition for habeas corpus filed pursuant to Title 28 U.S.C. § 2254 (doc. 1). Respondent filed a response and relevant portions of the state court record (docs. 32, 35-38, 44). Petitioner filed a response (doc. 47). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. It is further the opinion of the undersigned that the pleadings and attachments before the court show that petitioner is not entitled to relief, and the petition is without merit and should be denied.

BACKGROUND AND PROCEDURAL HISTORY

The petitioner, Robert Lee Hinson Jr., was charged with several crimes in the Circuit Court of Escambia County, Florida, in 2007 and 2008 (see doc. 35, ex. H).² At issue is the charge of burglary of a conveyance in case number 2007 CF 5153 ("case 5153") and the charge of felony petit theft in case number 2008 CF 402 ("case 402").³ (Id.). Mr. Hinson moved to waive his right to counsel and represent himself in both cases (ex. F, p. 18). The trial court granted the motion after holding a Faretta⁴ hearing on March 25, 2008 (ex E, pp. 86-107). On the burglary charge, Mr. Hinson entered a plea of guilty to the lesser included offense of trespassing. (Ex. A, pp. 39-44) (case no. 2008 CF 5153). The court sentenced him to nine months in jail with nine days of credit time (Ex. A, p. 50). He was tried by jury and adjudicated guilty of felony petit theft on July 2, 2008. (Ex. F, p. 135) (case no. 2008 CF 402). The court sentenced him to a term of five years imprisonment with 225 days of credit time (ex. G, pp. 183-89).

Mr. Hinson appealed the convictions and sentences in cases 5153 and 402 to the First District Court of Appeal ("First DCA") (exs. A, p. 70; G, p. 208). The First DCA consolidated the appeals (ex. D, p. 77). Through counsel, Mr. Hinson raised one issue: the trial judge erred in not conducting an adequate Faretta inquiry (ex. D). On July 13, 2009, the First DCA per curium affirmed the convictions and sentences without written opinion. Hinson v. State of Florida, 14 So.3d 1007 (Fla. 1st DCA 2009) (Table). A motion for rehearing was denied (ex. H, dkt. Aug. 25, 2009).

Mr. Hinson filed numerable motions and appeals in the state trial and appellate courts. On January 21, 2009, he filed a motion to correct the sentence in case 402based on the Florida speedy trial rule (ex. I, p. 1). The trial court denied the motion on February 6, 2009 (ex. I, p. 4). The First DCA affirmed the decision on May 14, 2009, and issued the mandate on July 1, 2009. Hinson v. State of Florida, 10 So.3d 365 (1st DCA 2009) (Table) (docket at sxs. J, HH).

On August 13, 2009, Mr. Hinson filed two virtually identical petitions for writ of habeas corpus seeking a belated appeal. The first challenged the June 9, 2008, hearing on his motion to dismiss the charges in case 402, stating the information was impermissibly vague, and his appellate attorney failed to appeal "the hearing[.]" (Ex. K). The second challenged the portion of the August 11, 2008, hearing pertaining to case 402 (ex. M). At that hearing, the trial judge denied Mr. Hinson's post-trial "motion for judgment of not guilty" and "motion for a cross bill of information", which Mr. Hinson stated was similar to a motion to dismiss the charges. (See ex. F, p. 168). The First DCA per curiam denied both petitions by separate opinions issued on September 17, 2009 (exs. L, N).

On August 17, 2009, Mr. Hinson filed a petition for writ of habeas corpus with the First DCA contending the trial court lacked subject matter jurisdiction in case 402 because the information was defective (ex. O). The First DCA denied the petition without written opinion on September 17, 2009 (ex. P).

On August 25, 2009, he filed another petition for writ of habeas corpus with the First DCA, this time alleging ineffective assistance of appellate counsel for failing to "appeal" the June 9 and August 11, 2008, hearings and the trial court's order denying a motion to disqualify the judge (ex. Q). The First DCA denied the petition on the merits on September 29, 2009 (ex. R).

On October 13, 2009, Mr. Hinson filed a petition for writ of habeas corpus with the Florida Supreme Court arguing the trial court was "obligated" to order a mental health evaluation based on the March 25, 2008 Faretta inquiry (ex. S). The Florida Supreme Court transferred the petition to the Escambia County Circuit Court for consideration as a motion for post-conviction relief on February 8, 2010 (exs. T; X, p. 29). While that motion was pending, Mr. Hinson filed a Rule 3.850 post-convictionmotion raising four grounds for relief (ex. U, p. 1). On August 25, 2010, the Rule 3.850 court denied both motions in a written opinion (ex. U, p. 12). Mr. Hinson appealed (ex. LL), and the First DCA per curiam affirmed the Rule 3.850 court's decision on November 10, 2010 (ex. KK, dkt. Nov. 10, 2010).

On March 15, 2010, while the Rule 3.850 motions were pending, Mr. Hinson filed a motion to correct illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure, alleging the trial court did not have subject matter jurisdiction in case 402 because the statute Mr. Hinson violated lacks an enacting clause (ex. V, pp. 1-30). He filed another Rule 3.800(a) motion on July 27, 2010, raising three additional grounds for relief (ex. V, pp. 31-41). The Rule 3.800 court denied both motions on the merits on August 25, 2010 (ex. V, pp. 42-43). Mr. Hinson appealed (ex. II), and the First DCA per curiam affirmed the Rule 3.800 court's decision on November 10, 2010 (ex. JJ).

On August 13, 2010, Mr. Hinson filed three pleadings—a petition for writ of habeas corpus to the Florida Supreme Court, a petition for writ of prohibition to the Florida Supreme Court, and a petition for writ of prohibition to the First DCA—alleging the trial court lacked subject matter jurisdiction in case 402 because the statute under which he was charged does not have an enacting clause and is therefore not a valid law. (See exs. W, Y, AA). The Florida Supreme Court transferred the petition for writ of prohibition to the Jackson County Circuit Court, where Mr. Hinson was imprisoned (ex. Z). That court dismissed the petition on October 6, 2010. (Case no. 2010 CA 827) (docket available at http://www.jacksonclerk.com). The Florida Supreme Court transferred the petition for habeas corpus to the Escambia County Circuit Court (ex. FF, dkt. # 267), which denied the petition on November 5, 2010 (id., dkt. # 282). He appealed to the First DCA (ex. MM), and the court affirmed the trial court's order denying the petition onMarch 14, 2011 (ex. NN). The First DCA dismissed the petition filed in its court on November 19, 2010, due to Mr. Hinson's motion for voluntary dismissal (ex. BB).⁵ Mr. Hinson filed another petition for writ of prohibition with the First DCA on August 25, 2010, again raising the issue of the trial court's failure to order a mental competency evaluation (ex. DD). The court denied the petition on October 29, 2010 (ex. EE).⁶

On November 23, 2010, Mr. Hinson filed the instant petition for writ of habeas corpus (doc. 1).

STANDARD OF REVIEW

Federal courts may issue habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. In relevant part, § 2254 provides:

(d) 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.

28 U.S.C. § 2254(d) (2006).

The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).⁷ Section 2254(d)(2) must be divided into two separate inquiries:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring). The federal habeas court "determining whether [it] should overturn the state courts' [sic] rejection of the claim at issue" should "review the highest state court decision disposing of the claim." Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1237 (11th Cir. 2011); see Knowles v. Mirzayance, 556 U.S. 111, _, 129 S. Ct. 1411, 1419, 173 L. Ed. 2d 251 (2009).

Following the Williams framework, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a formal state court proceeding,...