Hunt v. Sec'y, Florida Dep't of Corr., Case No. 2:09-cv-361-FtM-29SPC

• Decision Date: 22 August 2012
• Docket Number: Case No. 2:09-cv-361-FtM-29SPC
• Parties: DAVID ALAN HUNT, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

DAVID ALAN HUNT, Petitioner,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 2:09-cv-361-FtM-29SPC

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

Dated: August 22, 2012

OPINION AND ORDER

I. Status

David Alan Hunt (hereinafter "Petitioner" or "Hunt") initiated this action by filing a pro se Petition for Writ of Habeas Corpus ("Petition," Doc. #1) pursuant to 28 U.S.C. § 2254. Hunt was charged in the following three cases, which were consolidated for trial:

Case Number 01-273CF: Burglary of a dwelling and petit theft of Andrew Cole's property;

Case Number 01-274CF: Burglary of a dwelling and grand theft of David Johnson's property;

Case Number 01-297CF Burglary of a dwelling and grand theft of Peggy Brunk's property.

Hunt was found guilty by a jury as charged in case numbers 01-273CF and 01-274CF, and guilty of the lesser charge of burglary of a structure and grand theft in case number 01-297CF. Petitioner was sentenced as a habitual offender to: (1) ten years in prison on the two burglary counts; (2) concurrent five years in prison on the two grand theft counts; (3) a consecutive probationary term of threeyears on the offense of burglary of a dwelling; and (4) time served on the misdemeanor charge. Petitioner's sentence and conviction were per curiam affirmed on direct appeal on August 22, 2003. Hunt v. State, 856 So. 2d 993 (Fla. 2d DCA 2003).

The Petition sub judice identifies the following grounds for relief:

Ground 1: Whether the State court violated Petitioner's constitutional right on his post conviction appeal where the trial court erred and/or abused its discretion when it imposed $303.00 in court costs and $50.00 in prosecution costs in case number 01-273CF at sentencing on December 10, 2001. Petition at 7.¹

Ground 2: Whether the State court violated Petitioner's constitutional right on his post conviction appeal where the Petitioner alleged he was deprived of effective assistance of counsel, where counsel failed to present mitigation testimony and evidence in violation of the 6th and 14th Amendments of the U.S. Constitution. Petition at 8.

Ground 3: Whether the State court violated Petitioner's constitutional right on his post conviction appeal where the Petitioner alleged he was deprived of a fair trial and/or effective assistance of counsel, where counsel admitted elements of guilt without the consent of the Petitioner in violation of the 5th, 6th and 14th Amendments of the U.S. Constitution. Petition at 10.

Ground 4: Whether the State court violated Petitioner's constitutional right on his post conviction appeal where the Petitioner alleged he was deprived of a fair trial, the right to compulsory process for obtaining witnesses for defense, and/or effective assistance of counsel, where counsel refused and/or failed to compel co-defendant to testify. Petition at 13.

Ground 5: Whether the State court violated Petitioner's constitutional right where it deprived Petitioner of a fair trial and effective assistance of counsel, where counsel failed to investigate the facts and to acquaint himself with the case and layout of the victim's property. Petition at 16.

Ground 6: Whether the State court violated Petitioner's constitutional right where Petitioner was deprived of a fair trial and effective assistance of counsel, where counsel failed to obtain a copy of the taped statement, where Petitioner allegedly inculpated himself during victim's interrogative taped interview by sheriff's deputies. Petition at 19.

Ground 7: Whether the State court violated Petitioner's constitutional right to a fair trial, where Petitioner alleged ineffective assistance of counsel for failing to object to the court's refusal to clarify a jury question on recent possession of stolen goods presumption instruction during deliberation. Petition at 23.

Ground 8: Whether the State court violated Petitioner's constitutional right to a fair trial where Petitioner alleged ineffective assistance of trial counsel, where counsel advised Petitioner against testifying and/or coerced Petitioner not to testify on his own behalf. Petition at 25.

Ground 9: Whether the State court violated Petitioner's constitutional right to a fair trial where counsel presented an invalid and/or improper defense theory at trial contrary to Petitioner's 5th, 6th and 14th Amendment rights. Petition at 28.

Ground 10: Whether the State court violated Petitioner's constitutional right to a fair trial where Petitioner alleged ineffective assistance of trial counsel, where the cumulative effects of all or some of counsel's errors resulted in an unfair trial and prejudice the Petitioner in violation of his 6th and 14th Amendment rights. Petition at 30.

Ground 11: Whether the State court violated Petitioner's constitutional right to a fair trial and due process of law, where the State used false witness testimonies in violation of his 5th, 6th and 14th Amendment rights. Petition at 32.

Ground 12: Whether the State court violated Petitioner's due process right under an illegal probation sentence. Petition at 37.

Respondent filed a Response to the Petition (Doc. #19, Response), and attached exhibits in support (Exhs. 1-20). Respondent concedes that the Petition is timely filed pursuant to 28 U.S.C. § 2244(d), but submits that the Petition should be denied due to: (1) the Court's lack of subject matter jurisdiction; (2) Petitioner's procedural defaults; and, (3) his failure to satisfy his burden under 28 U.S.C. § 2254(d), (e). Response at 1, 6. Petitioner was given admonitions and a time frame to file a Reply to the Response. See Order of Court, Doc. #8. Petitioner elected not to file a Reply. See docket. Additionally, due to Petitioner's release from incarceration,² Respondent submits that Ground 2 is moot, and Grounds 1 and 12 of the Petition are moot only as to the cases in which Petitioner was not assessed costs and probation (case numbers 01-274CF and -1-297CF). Respondent's Return to Order (Doc. #24) at 3. This matter is ripe for review.

II. Applicable § 2254 Law

A. Only Federal Questions Cognizable

A federal court only may entertain an application for a writ of habeas corpus from a state prisoner who claims his custodyviolates the "Constitution or the laws or treaties of the United States." 28 U.S.C. § 2254(a). "The writ of habeas corpus was not enacted to enforce State-created rights." Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000)(citation and quotation marks omitted); Estelle v. McGuire, 502 U.S. 62, 68 (1991); Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983). In particular, "[a] state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved." McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992). "Federal courts entertaining petitions for writs of habeas corpus must follow the state court's interpretation of a state law absent a constitutional violation." Hunt v. Tucker, 93 F.3d 735, 737 (11th Cir. 1996); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005). Consequently, "a challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment - i.e., the conviction itself - and thus habeas relief is not an appropriate remedy." Alston v. Dep't of Corr., 610 F.3d 1318, 1325-26 (11th Cir. 2010)(internal quotation and citation omitted). Similarly, a claim that petitioner's federal rights have been violated because state officials failed to correctly apply state law is merely a state law claim "couched in terms" of a federal claim, and fails to state a claim upon which relief may be granted by habeas corpus. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1989).

B. Exhaustion and Procedural Default

A federal court may only review an issue under § 2254 if petitioner first afforded the state courts an adequate opportunity to address that issue. 28 U.S.C. § 2254(b)(1)(A).

Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. To provide the State with the necessary opportunity, the prisoner must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.

Baldwin v. Reese, 541 U.S. 27, 29 (2004)(internal citations and quotations omitted). This imposes a "total exhaustion" requirement in which all the federal issues must have first been presented to the state courts. Rhines v. Weber, 544 U.S. 269, 274 (2005). "In other words, the 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 Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.")(quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)); Duncan v. Henry, 513 U.S. 364, 365 (1995)(stating "exhaustion of state remedies requires that petitioners 'fairly present federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights'"). Additionally, in articulating a factual basis in support of a claim for relief, a petitioner must have also alleged the factual predicate to the state court. Kelley v. Sec'y for Dep't of Corrs., 377 F.3d 1317, 1343-44 (11th Cir. 2004)(noting that petitioners may not present particular factual instances of ineffective assistance of counsel in their federal petition if they did not first raise them in the state courts).

"A claim is procedurally defaulted if it...