Jones v. Sec'y, Case No. 3:13-cv-470-J-39JBT

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
PartiesMICHAEL JONES, Petitioner, v. SECRETARY, DOC, et al., Respondents.
Docket NumberCase No. 3:13-cv-470-J-39JBT
Decision Date09 November 2015

MICHAEL JONES, Petitioner,
SECRETARY, DOC, et al., Respondents.

Case No. 3:13-cv-470-J-39JBT


November 9, 2015



This cause is before the Court on a Petition for Writ of Habeas Corpus (Petition) (Doc. 1) under 28 U.S.C. § 2254.1 The Petition challenges a 1999 state court (Duval County) conviction for carjacking (Count 4) and causing bodily injury during the commission of a felony: carjacking (Count 5).2 Id. at 1-2. Petitioner raises two grounds for habeas relief: a double jeopardy claim and a due process claim. Id. at 9-22. Upon review, no evidentiary proceedings are required in this Court.

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Respondents filed an Answer to Petition for Writ of Habeas Corpus and Order to Show Cause (Response) (Doc. 25).3 They filed Exhibits in support of the Response (Doc. 26, Index to Exhibits to Response to Order to Show Cause).4 Petitioner filed a Reply to Respondents' Answer (Doc. 41). See Order (Doc. 5).


The Court will analyze Petitioner's claims under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA). "By its terms [28 U.S.C.] § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to th[re]e exceptions." Harrington v. Richter, 562 U.S. 86, 98 (2011). The exceptions are: (1) the state court's decision was contrary to clearly established federal law; or (2) there was an unreasonable application of clearly established federal law; or (3) the decision was based on an unreasonable determination of the facts. Id. at 100.

Of significance, there is a presumption of correctness of state courts' factual findings unless rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to the factual determinations of both trial and

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appellate courts. See Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003).


With regard to this opinion, the following pertinent history transpired. Petitioner was charged by information with multiple criminal offenses. Ex. A at 9-10. Of significance to this case, he was charged with carjacking (unarmed) in Count 4, and causing bodily injury during the commission of a felony (carjacking) in Count 5. Id. The state filed a Notice of Intent to Classify Defendant as an Habitual Felony Offender. Id. at 13. The trial court granted a motion for severance of counts. Id. at 23-26. The trial court conducted a jury trial, and on December 3, 1998, the jury returned a verdict of guilty to carjacking as charged in the information and causing bodily injury during the commission of a felony as charged in the information. Ex. A at 125-26.

On December 8, 1998, Petitioner moved for a new trial. Id. at 127-31. The trial court granted the motion. Id. at 132; Ex. D at 735. The trial court conducted a jury trial, Ex. H; Ex. I, and on July 14, 1999, the jury returned a verdict of guilty to carjacking as charged in the information and causing bodily injury during the commission of a felony. Ex. B at 265-66; Ex. I at 352-53. On July 28, 1999, the court sentenced Petitioner to twenty-five years imprisonment on Count 4, and a concurrent term of fifteen years

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imprisonment on Count 5, with both counts to be served as a habitual felony offender. Ex. B at 348-54.

Petitioner appealed his conviction. Id. at 359; Ex. N; Ex. O; Ex. P; Ex. Q. On November 30, 2000, the First District Court of Appeal per curiam affirmed. Ex. R. The mandate issued on January 23, 2001. Ex. V.

Through counsel, Petitioner filed his initial Rule 3.850, Fla. R. Crim. P., Motion for Post-Conviction Relief. Ex. W at 1-33. In pertinent part, in ground one of this motion, Petitioner asserted that he received the ineffective assistance of counsel for failure to move for judgment of acquittal on the causing bodily injury during the commission of a felony charge. Ex. W at 14-16. The state responded. Id. at 50-52. The trial court conducted an evidentiary hearing. Id. at 105-54. At the evidentiary hearing, the state conceded error "as the defendant was convicted of a statute as charged of a crime that didn't exist; he was convicted of felony causing bodily injury with the predicate offense of carjacking, which can't happen under the statute, so I will concede that." Id. at 150.

In the State's Post-Evidentiary Hearing Memorandum, an explanation is provided:

Initially, the State concedes the Court must set aside the defendant's conviction and sentence for the offense of felony causing bodily injury. The defendant was convicted of the offense of felony causing bodily injury and sentenced as a habitual offender to a term

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of fifteen years in prison. The State concedes the defendant was improperly charged. Accordingly, the State concedes the defendant is entitled to have his conviction and sentence set aside only as to the felony causing injury conviction.

Although the defendant is entitled to relief as to the felony causing bodily injury conviction because he was charged under an incorrect provision of the statute, the defendant is not entitled to relief on the basis his trial counsel was ineffective. . . .

Id. at 57.

Petitioner submitted Supplemental Authority and Argument on Pending Rule 3.850 Fla. R. Crim. P. Motion. Id. at 75-79. He urged the court to conclude that the two charges merged, becoming "essential elements of each other." Id. at 77. As relief, he asked that the conviction with regard to both counts be found to be invalid and the judgments and sentences set aside. Id. In the alternative, he requested that the court set aside the judgment and sentence for carjacking because it merged or was subsumed within the bodily injury charge, as the carjacking offense was the lesser level offense. Id. at 77-78. In sum, he claimed that the court must vacate the lesser of the offenses. Id. at 78.

The state responded that Petitioner's conviction and sentence for felony causing bodily injury was invalid from its imposition. Id. at 80. The state explained its position:

Regrettably, the State incorrectly charged the defendant with violating the second subsection of the felony causing bodily injury statute instead of the first subsection of the

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statute. The State charged the defendant with a violation of section 782.051(2) which prohibited an injury caused during the commission of felony other than a felony specifically enumerated in section 782.04(3) (see attached version of 782.051). Because carjacking is an enumerated felony set forth in section 782.04(3), carjacking could not have supported a felony causing bodily injury claim under section 782.051(2).

Ex. W at 81.

The state further explained that the Florida Legislature intended the causing bodily injury offense to be a distinct substantive offense. Id. at 82. Petitioner responded, in his Reply to State's Response to Defendant's Supplemental Authority and Argument on Pending Rule 3.850 Motion, that he is not claiming that the offenses are not separate, and he insists that he is not making a Blockburger5 argument; instead, he claims that the way the offenses were charged, the state could only sentence Petitioner for the higher offense because one offense was made an essential element of the other offense. Id. at 88.

The trial court granted post conviction relief with respect to the charge of felony causing bodily injury, finding the state conceded, through its pleadings, that Petitioner was improperly charged with that offense. Id. at 97. The conviction for felony causing bodily injury was vacated and set aside. Id. The court

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denied post conviction relief in all other respects. Id. at 90-96. The court rejected Petitioner's merger argument (the two charges merged and became essential elements of one another). Id. at 94-95. The court found there was simply an error in charging, not proof. Id. at 95. As directed by the court, the clerk re-recorded the judgment, removing the conviction and sentence for felony causing bodily injury. Ex. X.

Petitioner appealed. Ex. W at 104. Petitioner raised a double jeopardy claim, urging the appellate court to find that the carjacking charge merged with the causing bodily injury charge, precluding the conviction for carjacking. Ex. Y at 27-31. The state urged the appellate court to find that Petitioner was charged with a non-existent crime, and the proof was irrelevant. Ex. Z at 14. The state further contended that carjacking did not merge with a non-existent crime. Id. at 15. Petitioner, in his reply, states that all of the elements of the crime were present, and the state merely referenced the wrong statutory citation with respect to the bodily injury charge. Ex. AA at 6-7. Petitioner argued that there was only one crime, the taking of the car by force which caused an injury. Id. at 7. On December 18, 2007, the First District Court of Appeal affirmed per curiam. Ex. BB. The mandate issued on January 3, 2008. Ex. DD.

Petitioner's counsel filed a second Rule 3.850 motion entitled Motion for Post-Conviction Relief Newly Discovered Evidence. Ex. GG at 1-84. Petitioner filed a pro se Motion for Postconviction

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Relief Newly Discovered Evidence. Id. at 100-204. The state responded to the motions declaring that "[t]he error conceded by the State of Florida lies not in the nature of the evidence produced at trial, but rather in its failure to charge the defendant with having committed a violation of section 782.051(1), FS, as opposed to section 782.051(2), FS." Ex. HH at 239. Through counsel, Petitioner replied. Id. at 283-93. The trial court denied post conviction relief. Id. at 294-318. In denying the double jeopardy claim, the court held:

Defendant also argues that double jeopardy prohibits his conviction for Carjacking when the Court vacated his conviction for Causing Bodily Injury during the Commission of a Felony. "The two offenses are found in separate statutory provisions; neither offense is an

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