Keinz v. Sec'y, DOC, Case No. 2:08-CV-878-FtM-99DNF

• Decision Date: 02 March 2012
• Docket Number: Case No. 2:08-CV-878-FtM-99DNF
• Parties: MICHAEL DAVID KEINZ, Petitioner, v. SECRETARY, DOC, Respondent.
• Court: U.S. District Court — Middle District of Florida

MICHAEL DAVID KEINZ, Petitioner,

v.SECRETARY, DOC, Respondent.

Case No. 2:08-CV-878-FtM-99DNF

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

Dated: March 2, 2012

OPINION AND ORDER

I. Status

Petitioner Michael David Keinz, an inmate of the Florida penal system who is proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus (Doc. #1, Petition) pursuant to 28 U.S.C. § 2254 on November 25, 2008.¹ Petitioner challenges his state court plea-based judgment of conviction entered in the Twentieth Judicial Circuit, Lee County, Florida. Petition at 1. Respondent filed a Response (Doc. #18, Response) with supporting exhibits (Exhs. 1-26/ Record on Appeal Exhs. 2, Vol. 1-5, Supp. 1-3, and Exh. 21, Vol. 1, Supp. 1), including Petitioner's postconviction motions and hearing transcripts. The Court warned Petitioner that failure to file a timely Reply would result in the Court reviewing his action without the benefit of his Reply. SeeDoc. #24. Nevertheless, Petitioner failed to file a Reply. See generally docket. This matter is ripe for review.

II. Procedural History

On May 22, 2001, Petitioner entered a nolo contendere plea to the following offenses charged in three cases:

Case number 00-253CF- trafficking in more than 400 grams of cocaine, trafficking in 4 grams or more of heroin, and trafficking in over 28 grams of heroin;

Case number 00-507CF- trafficking in 4 grams or more of heroin in; and,

Case number 00-508CF- trafficking in over 28 grams of cocaine.

Response at 1-2; see Exh. 1 (plea transcript). Each of these offenses involved a controlled buy between Petitioner and a confidential informant. Exh. 1 at 181-184. Pursuant to a negotiated plea agreement, Petitioner was sentenced to concurrent terms of 2 0 years in prison for each case.² Response at 2. Petitioner proceeded to file a litany of post-conviction motions. Only the relevant motions will be discussed herein.

A. Direct Appeal

Petitioner did not pursue a direct appeal in either case number 00-507CF, or case number 00-508CF. Id. However, Petitioner filed a direct appeal in case number 00-253CF. Id. at 3; Exh. 3. Petitioner challenged the denial of his Florida Rule of CriminalProcedure 3.800(b) motion, claiming that his 3-year minimum mandatory prison terms for trafficking in heroin and cocaine were illegal. Id. The State filed an answer brief. Exh. 4.

On July 11, 2003, the appellate court affirmed in part Petitioner's conviction and sentence, but reversed and remanded Petitioner's sentence for trafficking in 4 grams or more of heroin and trafficking in 28 grams or more of cocaine. Id. at 3; Exh. 5; see also Keinz v. State. 870 So. 2d 4 (Fla. 2d DCA 2003) . The State appealed to the decision to the Florida Supreme Court. Exh. 9. The Florida Supreme Court accepted jurisdiction, consolidated other cases involving the same sentencing issue, and quashed the decision of the appellate court. Exh. 12; State v. Herndon. 894 So. 2d 966, 968 (Fla. 2005). Petitioner's case was remanded for reconsideration in light of State v. Herndon. Id. Upon remand, Petitioner's sentence was left intact. Response at 3-4.

Florida Rule of Criminal Procedure 3.850

During the pendency of Petitioner's direct appeal of case number 00-253CF, on May 13, 2003, Petitioner filed a pro se motion pursuant to Florida Rule of Criminal Procedure 3.850. Response at 4; Exh. 18(a) . The State moved to stay the Rule 3.850 Motion while the direct appeal was pending. Response at 4. The post-conviction court granted the State's motion to stay. Id. Petitioner filed an amended Rule 3.850 Motion raising seven grounds for relief on October 22, 2003. Response at 4; Exh. 18(b). On May 19, 2005,the post-conviction court summarily denied grounds three and six, and scheduled an evidentiary hearing on grounds one, two, four, five, and seven. Exh. 19. After the post-conviction court held an evidentiary hearing, the court entered an order denying Petitioner relief on all claims on August 11, 2006. Response at 10; Exh. 20. Petitioner appealed the post-conviction court's denial of grounds one and four, Exh. 22, and after briefing, the appellate court per curiam affirmed on May 28, 2008. Response at 10; Exh. 24, Keinz v. State. 982 So. 2d 695 (Fla. 2d DCA 2008) [table] . Mandate issued on June 18, 2008. Id.

State Habeas Corpus Petition

On April 2, 2005, Petitioner initiated a petition for writ of habeas corpus. Exh. 16 at 5. The appellate court construed the petition as a petition alleging ineffective assistance of appellate counsel, and denied the petition. Exh. 17; Keinz v. State. 902 So. 2d 803 (Fla. 2d DCA 2005).

Instant Petition

Petitioner filed the instant Petition on November 25, 2008, raising the following twenty grounds for relief (restated):

Ground 1-Prosecutorial misconduct stemming from use of alleged perjured testimony from confidential informant;

Ground 2- Prosecutorial misconduct stemming from use of perjured evidence obtained from the controlled buys;

Ground 3-Prosecutorial misconduct by obtaining a search warrant using fraudulent information;Ground -Prosecutorial Misconduct when prosecutor did not furnish any affidavit for the search warrant until after all depositions of the task force members were taken;

Ground -Prosecutorial Misconduct by keeping search warrant and affidavit filed under seal to keep confidential informant's name protected when CI's name is not mentioned;

Ground -Due Process rights were violated because Petitioner's confession was taken while he was intoxicated and requested an attorney;

Ground -Excessive bail was set;

Ground -Prosecutorial misconduct and trial court error based on the denial of exculpatory evidence;

Ground 9- Ineffective assistance of defense counsel for failure to investigate the search warrant;

Ground -Prosecutorial Misconduct for failing to provide Petitioner with free copies of discovery;

Ground -Ineffective assistance of defense counsel based on counsel's failure to obtain F.D.L.E lab reports;

Ground -Prosecutorial misconduct stemming from illegible copies of discovery;

Ground -Trial Court error for giving defense counsel only three weeks to prepare for trial;

Ground -Trial court error for coercing Petitioner to enter his nolo contendere plea;

Ground -Defense counsel rendered ineffective assistance by coercing Petitioner to enter his nolo contendere plea;

Ground -Defense counsel rendered ineffective assistance by failing to object during plea colloquy when the prosecutor entered "false basic information";

Ground -Trial court error for issuing a sentence and not stating what the offense was;

Ground 18-Defense counsel rendered ineffective assistance by waiving the Pre-sentence Investigative Report;

Ground 19-Defense counsel rendered ineffective assistance by allowing Petitioner to enter his nolo contendere plea knowing that Petitioner required medication that he was not provided;

Ground -Newly discovered evidence that task force committed perjury and fabricated evidence.

See generally Petition.³ Respondent raises the following arguments in opposition to the Petition: (1) that any challenges to Petitioner's conviction and sentence stemming from case numbers 00-507CF and 00-508CF are barred by the federal limitations period; (2) to the extent Petitioner raises grounds for relief from his judgment and conviction in case number 00-253CF, his knowing, voluntary, and intelligent nolo contendere plea precludes relief; (3) to the extent any of Petitioner's claims raise a Fourth Amendment issue, Stone v. Powell, bars relief; and, (4) the remaining claims are unexhausted and procedurally defaulted. See generally Response. For the reasons discussed herein, theCourt finds that the Petition must be dismissed, in part, and denied in part.

III. Applicable Law

A. § 2244(d)(1)

Petitioner filed his Petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) , Pub. L. No. 104-132, 110 Stat. 1214 (1996). Consequently, post-AEDPA law governs this action. Penry v. Johnson, 532 U.S. 782, 792 (2001); Davis v. Jones. 506 F.3d 1325, 1331, n.9 (11th Cir. 2007). Neither party disputes the applicability of the AEDPA.

On April 24, 1996, the President signed into law AEDPA. This law amended 28 U.S.C. § 2244 by adding the following new subsection:

(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 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.

28 U.S.C. § 2244(d).

B. Deference to State Court Decisions

Habeas relief may not be granted with respect to a claim adjudicated on the merits in state court 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

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in

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