Jones v. Sec'y Dep't of Corr.

• Decision Date: 11 December 2014
• Docket Number: Case No. 3:12cv536/LC/CJK
• Court: U.S. District Court — Northern District of Florida
• Parties: DEMETRIS L. JONES, Petitioner, v. SECRETARY DEPARTMENT OF CORRECTIONS, Respondent.

DEMETRIS L. JONES, Petitioner, v. SECRETARY DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 3:12cv536/LC/CJK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

December 11, 2014

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 1). Respondent filed an answer, submitting relevant portions of the state court record. (Doc. 23). Petitioner did not reply, although invited to do so. (Doc. 25). 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 the issue raised by petitioner, the undersigned concludes 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. The undersigned further concludes that the pleadings and attachments before the court show that petitioner's claim is procedurally defaulted, and that the petition should be denied.

BACKGROUND AND PROCEDURAL HISTORY

On May 27, 2009, petitioner was charged in Escambia County Circuit Court Case Number 09-CF-2136 with one count of Robbery Armed with a Firearm (Count 1), one count of Aggravated Assault by Threat with a Firearm (Count 2), one count of Possession of a Firearm by a Convicted Delinquent Under 24 Years of Age (Count 3), three counts of Aggravated Assault on a Law Enforcement Officer with a Firearm (Counts 4-6) and two counts of Possession of a Controlled Substance (Counts 7-8). (Doc. 23, Ex. A).¹ On June 29, 2009, petitioner was charged in Escambia County Circuit Court Case Number 09-CF-2672 with one count of Burglary of an Unoccupied Conveyance (Count 1), one count of Grand Theft (Count 2) and one count of Criminal Mischief (Count 3). (Ex. B).

In Case No. 09-CF-2136, petitioner entered a counseled no contest plea to Count 3 and proceeded to a jury trial on the remaining counts. (Ex. F). The jury found petitioner guilty as charged on the remaining counts (Counts 1, 2 and 4-8). (Ex. D). In Case No. 09-CF-2672, petitioner entered a counseled no contest plea to all counts as charged. (Ex. F).

By judgment and sentence rendered July 14, 2010, petitioner was adjudicated guilty on all counts in Case No. 09-CF-2136, and sentenced to a total term of 10 years in prison followed by 36 months of probation. (Ex. F). By the same judgment, petitioner was adjudicated guilty on all counts in Case No. 09-CF-2672, and sentenced to a total term of 94.2 months in prison, to run concurrent with Count 1 in Case No. 09-CF-2136. (Ex. F). Petitioner's judgment of conviction was affirmedon direct appeal on October 10, 2011, per curiam and without a written opinion. Jones v. State, 71 So. 3d 120 (Fla. 1st DCA 2011) (copy at Ex. I).

Petitioner filed his federal habeas petition in this court on November 4, 2012. (Doc. 1). The petition raises one ground for relief: "Trial Court Deprived Petitioner Of His Due Process Rights To A Fair Trial By Allowing Highly Prejudicial Evidence Of The Case, That Does Not Support The Genuine Material Fact That[']s In Dispute, Is A Constitutional Violation." (Doc. 1, p. 4). Petitioner argues the following in support of this claim:

This Constitutional Error Cannot Be Deemed Harmless, Where The Undue Prejudicial Error Of Irrelevant Testimony Was Not Relevant To The Genuine Material Fact Of Issue At Fact, Whereas The Mistrial Should Have Been Granted To Avoid A Miscarriage Of Justice. Petitioner Has A Constitutional Right To Fair Trial, To Be Deprived Of That Right Along With Life And Liberty Is A Due Process Violation As Well As Abuse Of Discretion.

(Doc. 1, p. 4). Respondent asserts a procedural default defense, arguing that petitioner never presented this federal claim in the state courts. (Doc. 23, pp. 7-11). Respondent reserves the right to address the merits if this defense is rejected. (Doc. 23, p. 1).

EXHAUSTION AND PROCEDURAL DEFAULT

Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all available state court remedies for challenging his conviction, 28 U.S.C. § 2254(b)(1),² thereby giving the state the "'opportunity to pass upon and correct'alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Picard, 404 U.S. at 277-78. The petitioner must "fairly present" his federal claim in each appropriate state court to provide the State with the requisite opportunity. Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004). This can be done by "indicat[ing] the federal law basis for [a] claim in a state-court petition or brief." Id. at 32, 124 S. Ct. 1347.

A claim that was not presented to the state court and which can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. O'Sullivan, 526 U.S. at 839-40, 848, 119 S. Ct. 1728; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998) (holding that federal habeas courts should enforce applicable state procedural bars even as to claims that werenever presented to the state courts). A petitioner seeking to overcome a procedural default must show cause and prejudice, or a fundamental miscarriage of justice. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993). "For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McCleskey v. Zant, 499 U.S. 467, 497, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). The miscarriage of justice exception requires the petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 85, 130 L. Ed. 2d 808 (1995). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him." Schlup, 513 U.S. at 327. Further:

a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.

Id.

Petitioner's claim involves the following exchange during defense counsel's cross-examination of Mr. Parker, the victim of the armed robbery and aggravated assault:

Q [Defense counsel]: What we are clear about, sir . . . and correct me if I am wrong, is that the maintenance man told you that Mr. Jones carried a chrome gun and that Mr. Hicks [petitioner's co-defendant] carried a .380?

A [Mr. Parker]; Yeah. I probably told you that because he [the maintenance man] said that he [petitioner] pulled the guns on him one time, and tried to rob him and --

Q: And that's what you told the police?

A: No. I told the police that they robbed me.

Q: Right, okay. But you told the police what type of gun they had?

A: Yes.

(Ex. C, pp. 98-99). After re-direct by the State, defense counsel requested a bench conference and moved for a mistrial:

MR. SMILEY [Defense Counsel]: Your Honor, I did not make a big deal about it at the time, but when I asked Mr. Parker a question he was very - it was non responsive and he mentioned that he said they tried to rob him, too. I don't know if the jury caught that or not, but I think out of an abundance of caution I just make a motion that I think that is highly prejudicial to my client, the fact that he mentioned that they said that they tried to rob him, also.

MR. GIRAUD [Prosecutor]: That's not evidence in trial, Judge. They opened the door and asked him the question about what the other guy was talking about, so they opened the door.

THE COURT: And I understand that what the argument that you just made. What relief were you seeking?

MR. SMILEY: I was seeking to have a mistrial, Judge.

THE COURT: All right. Then the record is made. Based upon Mr. Giraud's argument, it's denied.

(Ex. C, pp. 101-02). Defense counsel asserted in his motion for mistrial that Mr. Parker's statement was "highly prejudicial", but that did not put the trial court on notice that petitioner was raising a federal due process claim.

On direct appeal, petitioner captioned his claim as follows: "THE TRIAL COURT [ERRED] IN DENYING MR. JONES' MOTION FOR MISTRIAL BASED UPON INADMISSIBLE AND HIGHLY PREJUDICIAL COLLATERAL CRIME EVIDENCE WHEN MR. PARKER TESTIFIED TO MR. JONES' ALLEGED ATTEMPTED ARMED ROBBERY OF THE MAINTENANCE MAN." (Doc. 23, Ex. H, pp. 15, 16). Petitioner's substantive argument addressed Florida law, with the bulk of it consisting of petitioner's attempt to analogize his case to Czubak v. State, 570 So. 2d 925, 926-928 (Fla. 1990), and Harris v. State, 34 So. 3d 187 (Fla. 1st DCA 2010), both of which rejected the State's argument of "invited error" and held that admission of the collateral crime evidence was not harmless under Florida's harmless error test. Petitioner did not cite in conjunction with his claim a federal source of law on which he relied, nor did he label the claim "federal" or otherwise indicate a federal law basis for his claim. Petitioner made not even a passing reference to due process, fundamental fairness,...