Hubbard v. Sec'y
| Decision Date | 08 February 2011 |
| Docket Number | Case No. 2:08-cv-215-FtM-36DNF |
| Parties | KENNETH D. HUBBARD, Petitioner, v. SECRETARY, DOC, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
KENNETH D. HUBBARD, Petitioner,
v.
SECRETARY, DOC, Respondent.
Case No. 2:08-cv-215-FtM-36DNF
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Date: February 8, 2011
Petitioner Kenneth D. Hubbard, proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on March 11, 2008.1 (Doc. #1, Petition). Petitioner submits a Memorandum of Law (Doc. #2) and an Appendix (Doc. #3) identifying exhibits in support of the Petition. Respondent, the Secretary of the Florida Department of Corrections,
Page 2
contends, inter alia, that Petitioner has not complied with the one-year period of limitations as set forth in 28 U.S.C. § 2244(d). See Respondent's Limited Response to Petition for Writ of Habeas Corpus Incorporating a Motion to Dismiss as Time-Barred (Doc. #23, Response) at 1. In the alternative, the Respondent moves for summary judgment based upon Petitioner's procedural defaults and his failure to otherwise satisfy 28 U.S.C. § 2254(d) and (e). Id. Respondent submits exhibits in support of its Response. See List of Exhibits (Doc. #25, Exhs. 1-24). Petitioner filed a Reply to Respondent's Response (Doc. #29, Reply). This matter is ripe for review.
Hubbard was charged by Information with Sexual Battery in violation of Florida Statute § 794.011(15) (case number 04-04356-CF-ANO, Twentieth Judicial Circuit, Lee County). Hubbard's jury trial commenced on April 28, 2004. On April 29, 2004, the jury returned a verdict of guilty as charged. On June 28, 2004, the trial court adjudicated Hubbard guilty in accordance with the jury's verdict and sentenced Hubbard to 120 months in prison. Petitioner filed a direct appeal through appointed counsel and, following briefing by the parties (Exhs. ##2-4), the appellate court per curiam affirmed Hubbard's conviction and sentence on April 22, 2005. Hubbard v. State, 902 So. 2d 147 (Fla. 2d DCA 2005); Exh. #5.
Page 3
Hubbard filed a post-conviction motion pursuant to Florida Rule of Criminal Procedure 3.850 (hereinafter "Rule 3.850 Motion") on September 12, 2005. Exh. 8. After a response by the State (Exh. 9b), the post-conviction court summarily denied the Rule 3.850 Motion by order dated June 6, 2006. Exh. 10. Hubbard appealed the summary denial of his Rule 3.850 motion. Exh. 11. On September 15, 2006, the appellate court per curiam affirmed the post-conviction court's denial of Hubbard's Rule 3.850 Motion. Hubbard v. State, 939 So. 2d 103 (Fla. 2d DCA 2006); Exh. 13. Mandate issued October 6, 2006. Exh. 14.
On October 27, 2006, Hubbard filed a State petition for writ of habeas corpus in accordance with Florida Rule of Appellate Procedure 9.141(c), alleging ineffective assistance of appellate counsel. Exh. 16. After directing the State to file a limited response only to issue six of the State petition (Exh. 18), the appellate court dismissed the petition without a written opinion on May 4, 2007. Exh. 21.
Thereafter, on October 11, 2007, Hubbard filed a petition for writ of habeas corpus in the Florida Supreme Court alleging issues of "great public importance." Exh. 23. In particular, Hubbard sought review of the circuit and appellate courts' denials of Hubbard's Rule 3.850 Motion and habeas corpus petition. Id. On December 4, 2007, the Florida Supreme Court "determined that relief
Page 4
[was] not authorized" and dismissed the State petition citing Barker v. State, 878 So. 2d 1236 (Fla. 2006). Exh. 24.
Because Petitioner filed his § 2254 Petition after April 24, 1996, the Petition is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Abdul-Kabir v. Quarterman, 127 S. Ct. 1654, 1664 (2007); Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA "establishes a more deferential standard of review of state habeas judgments, " Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), cert. denied, 535 U.S. 1104 (2002), in order to "prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Several aspects of § 2254, as amended by the AEDPA, are relevant to a review of this Petition.
A. Petition Subject to One-Year Limitations Period
AEDPA establishes a one-year federal limitations period for petitions. In pertinent part, 28 U.S.C. § 2244 provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in
Page 5
violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by 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.
The one-year limitations period is not jurisdictional, and is subject to equitable tolling in certain cases. Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2562 (2010). For a petitioner to be entitled to equitable tolling, he must show that (1) he was pursuing his rights diligently; and (2) that "extraordinary circumstances" stood in his way, which prevented his timely filing. Id. at 2562.
B. Only Federal Claims Are Cognizable
A federal court may entertain an application for a writ of habeas corpus, from a person in state custody pursuant to a state court judgment, only on the grounds that the Petitioner is in custody in violation of the United States Constitution or the laws or treaties of the United States. 28 U.S.C. § 2254(a). A claimed
Page 6
violation of state law is generally insufficient to warrant review or relief by a federal court under § 2254. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000). Questions of state law are only reviewed to determine whether the alleged errors rendered "the entire trial fundamentally unfair." Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983).
C. Claim Must Be Exhausted in State Court
A petitioner, even when asserting grounds that warrant review by a federal court under § 2254, must have first raised such grounds before the state courts, thereby giving the state courts the initial opportunity to address the federal issues. A § 2254 application cannot be granted unless a petitioner "has exhausted the remedies available in the courts of the State;..." 28 U.S.C. § 2254(b)(1)(A). This imposes a "total exhaustion" requirement in which all of the federal issues must have first been presented to the state courts. Rhines v. Weber, 544 U.S. 269, 274 (2005).
"[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Duncan v. Henry, 513 U.S. 364, 36566 (1995). "A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he
Page 7
first properly raised the issue in the state courts." Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). See also Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003), cert. denied sub nom. Pruitt v. Hooks, 543 U.S. 838 (2004). To properly exhaust a claim, a petitioner must present the same claim to the state court that he urges the federal court to consider. A mere citation to the federal constitution is insufficient for purposes of exhaustion. Anderson v. Harless, 459 U.S. 4, 7 (1983). "'[T]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.'" McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005) (quoting Kelley v. Sec'y for the Dep't of Corr., 377 F.3d 1317, 1343-44 (11th Cir. 2004)).
As to ineffective assistance of counsel claims, Petitioner must have presented each instance of alleged ineffective assistance to the state court in such a manner that a reasonable reader would understand each claim's particular legal basis and specific factual foundation. Ogle, 488 F.3d at 1368 (citations omitted); Kelley, 377 F.3d at 1344-45. A state prisoner need not file a petition for certiorari with the U.S. Supreme Court, however, in...
To continue reading
Request your trial