Ho v. Jones

• Decision Date: 15 August 2017
• Docket Number: Case No.: 5:16cv105/LAC/EMT
• Parties: DUONG THANH HO, Petitioner, v. JULIE L. JONES, Respondent.
• Court: U.S. District Court — Northern District of Florida

DUONG THANH HO, Petitioner,
v.
JULIE L. JONES, Respondent.

Case No.: 5:16cv105/LAC/EMT

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

August 15, 2017

ORDER AND REPORT AND RECOMMENDATION

This cause is before the court on Petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (ECF No. 1). Respondent filed an answer, supplemental answer, and relevant portions of the state court record (see ECF Nos. 20, 24). Petitioner filed a reply and three supplements (see ECF Nos. 22, 25, 27, 30).

The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C) and Fed. R. Civ. P. 72(b). After careful consideration of all issues raised by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a), Rules Governing Section 2254 Cases. It is further the

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opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief.

I. BACKGROUND AND PROCEDURAL HISTORY

The relevant aspects of the procedural background of this case are established by the state court record (see ECF Nos. 20, 24).¹ Petitioner was charged in the Circuit Court for Bay County, Florida, Case No. 2009-CF-1606, with one count of principal to burglary of a structure (Count I) and one count of principal to felony criminal mischief (Count II) (Ex. A at 14). On September 16, 2009, Petitioner and the State entered a deferred prosecution agreement ("DPA"), and Petitioner entered a pretrial intervention ("PTI") program (id. at 20-22). On or about December 3, 2009, Petitioner was unsuccessfully discharged from the PTI program after being charged in Case No. 2009-CF-3413 with one count of sale of marijuana to a minor (Count I) and one count of misdemeanor possession of drug paraphernalia (Count II) (id. at 23, 123). On February 24, 2010, Petitioner and the State entered a written plea agreement, pursuant to which Petitioner agreed to enter a no contest plea to the charges in both cases in exchange for a sentence of three concurrent terms of five (5)

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years of probation on the felony counts and time served on the misdemeanor count (id. at 146-47). The trial court accepted the plea and sentenced Petitioner in accordance with the plea agreement on February 24, 2010 (id. at 158-60).

On September 29, 2011, Petitioner was arrested for home invasion armed robbery (Ex. B at 246-47). He was charged in Case No. 2011-CF-3166 with one count of burglary of an occupied dwelling while armed and with a battery or assault (Count I) and one count of attempted armed robbery (Count II) (id. at 302). Additionally, these new charges led to issuance of a probation violation warrant in Case Nos. 2009-CF-1606 and 2009-CF-3413 (Ex. A at 171-74). A jury trial was held in Case No. 2011-CF-3166 on January 7-8, 2013, which resulted in a verdict of guilty at to Count I (Exs. C, V).² Petitioner pleaded no contest to the probation violations in Case Nos. 2009-CF-1606 and 2009-CF-3413 (see Ex. B at 371-83). On February 18, 2013, Petitioner was sentenced to five (5) years in prison, with credit for 495 days, on each of the three felony counts in Case Nos. 2009-CF-1606 and 2009-CF-3143 (see Ex. B at 371-83, Ex. E). He was sentenced to twenty (20) years in prison, with credit for 509 days, in Case No. 2011-CF-3166 (id.). The court ordered all sentences to run concurrently (id.).

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The trial court consolidated the cases for appeal to the Florida First District Court of Appeal ("First DCA"), Case No. 1D13-888 (see Ex. B at 232, Ex. G). The First DCA affirmed the judgment per curiam without written opinion on April 8, 2014, with the mandate issuing April 24, 2014 (Ex. I). Ho v. State, 135 So. 3d 292 (Fla. 1st DCA 2014) (Table).

While Petitioner's appeal was pending, he filed a motion for post-conviction relief in the state circuit court, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. B at 384-95). The circuit court dismissed the motion for lack of jurisdiction, without prejudice to Petitioner's filing a timely motion upon completion of the direct appeal (id. at 397).

On October 17, 2014, Petitioner filed a Rule 3.850 motion in the state circuit court (Ex. P at 1-11). In an order rendered November 4, 2014, the circuit court struck the motion as facially insufficient, without prejudice to Petitioner's filing an amended motion within sixty (60) days (id. at 14). Petitioner filed a timely amended motion (id. at 21-32). The circuit court summarily denied the motion on January 21, 2015 (id. at 35-39). Petitioner appealed the decision to the First DCA, Case No. 1D15-0987 (Ex. Q). The First DCA affirmed the judgment per curiam without written

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opinion on June 1, 2015, with the mandate issuing August 3, 2015 (ECF No. 1 at 26-27). Ho v. State, 169 So. 3d 1165 (Fla. 1st DCA 2015) (Table).

On September 1, 2015, Petitioner filed another Rule 3.850 motion in the state circuit court (Ex. J at 1-13). The circuit court dismissed the motion as impermissibly successive on September 15, 2015 (id. at 45-47). Petitioner appealed the decision to the First DCA, Case No. 1D15-4733 (Ex. K). The First DCA affirmed per curiam on January 20, 2016 (Ex. L). Ho v. State, 214 So. 3d 669 (Fla. 1st DCA 2016) (Table). The mandate issued March 22, 2016 (Ex. O).

Petitioner filed this federal habeas action on April 10, 2016 (ECF No. 1).

II. STANDARD OF REVIEW

Federal courts may grant 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. Section 2254(d) provides, in relevant part:

(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

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(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) (2011).

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). The appropriate test was described by Justice O'Connor as follows:

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).

Employing the Williams framework, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a state court proceeding, the federal court must first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is "clearly established"

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only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130 S. Ct. 1171, 175 L. Ed. 2d 1003 (2010); Woods v. Donald, — U.S. —, 135 S. Ct. 1372, 1376, 191 L. Ed. 2d 464 (2015) ("We have explained that clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions." (internal quotation marks and citation omitted)).

After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is "contrary" only if either the reasoning or the result contradicts the relevant Supreme Court cases. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) ("Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases—indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). Where there is no Supreme Court precedent on point, the state court's conclusion cannot be contrary to clearly established federal law. See Woods, 135 S. Ct. at 1377 (holding, as to claim that counsel was per se ineffective in being absent from the courtroom for ten minutes

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during testimony concerning other defendants: "Because none of our cases confront the specific question presented by this case, the state court's decision could not be contrary to any holding from this Court." (internal quotation marks and citation omitted)). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 954, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007).

If the "contrary to" clause is not satisfied, the federal habeas court next determines whether the...