Kennedy v. Crews
| Decision Date | 18 March 2014 |
| Docket Number | Case No. 3:12cv243/LC/CJK |
| Court | U.S. District Court — Northern District of Florida |
| Parties | ERVIN KENNEDY, Petitioner, v. MICHAEL D. CREWS, Respondent. |
Before the court is an amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 13). Respondent filed an answer (doc. 27), submitting relevant portions of the state court record (doc. 28). Petitioner replied. (Doc. 36). 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 all issues 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 is not entitled to federal habeas relief, and that the amended petition should be denied.
Petitioner was charged by Amended Information filed in the Circuit Court for Escambia County, Florida, Case No. 07-3971, with the following offenses: Trafficking in Illegal Drugs - Heroin, Morphine, Opium (28 grams or more but less than 30 kilograms of Oxycodone) (Count 1); Trafficking in Illegal Drugs - Heroin, Morphine, Opium (4 grams or more but less than 14 grams of Hydrocodone) (Count 2); Possession of a Controlled Substance (Temazepam) (Count 3); Possession of a Controlled Substance (more than 20 grams of Cannabis) (Count 4) and Possession of a Firearm by a Convicted Felon (Count 5). (Doc. 28, Ex. A, pp. 3-4).1 The offenses were alleged to have occurred on August 9, 2007, and arose out of an incident wherein Florida Department of Law Enforcement agents served a search warrant on petitioner's premises in Molino, Florida. (Ex. A, pp. 3-4, 11-13). On January 25, 2008, petitioner was charged with additional crimes in four separate cases filed in the Escambia County Circuit Court:
The offenses arose out of sales petitioner allegedly made to an undercover informant, Donny Sorrells. (Ex. A, p. 10).
Petitioner proceeded to trial on Counts 1-4 of Case No. 07-3971, and was found guilty as charged of Counts 1, 2 and 4 and not guilty of Count 3 (the possession of Temazepam charge). (Ex. B, pp. 215-16; Ex. D, p. 362). Count 5 of Case No. 07-3971 was severed out, and petitioner later pled no contest to that charge. (Ex. B, pp. 222-233). Petitioner entered no contest pleas to the offenses charged in Case Nos. 08-108, 08-109, 08-111 and 08-112. (Id.). In exchange for petitioner's pleas, the State nolle prossed the charges in four other cases: Escambia County Circuit Court Case Nos. 08-105, 08-106, 08-107 and 08-110. .
On August 14, 2008, petitioner was adjudicated guilty of Counts 1, 2, 4 and 5 of Case No. 07-3971, and sentenced to 25 years imprisonment with a 25-year mandatory minimum on Count 1; a concurrent term of 15 years imprisonment with a 3-year mandatory minimum on Count 2; a concurrent term of 5 years imprisonment on Count 4; and a concurrent term of 15 years imprisonment with a 3-year mandatory minimum on Count 5. (Ex. B, pp. 251-53). That same date, petitioner was adjudicated guilty of each charge in Case Nos. 08-108, 08-109, 08-111 and 08-112, and sentenced to 15 years imprisonment with a 15-year mandatory minimum in Case Nos. 08-108 and 08-109, and to 15 years imprisonment with a 3-year mandatory minimum in Case Nos. 08-111 and 08-112, with all sentences to run concurrent with each other and with the sentences imposed in Case No. 07-3971. (Id., pp. 253-54). Petitioner was adjudicated not guilty of Count 3 of Case No. 07-3971. (Ex. B, p. 217, 278). Judgment was rendered August 14, 2008. (Id., pp. 267-78). Petitioner'sjudgment of conviction was affirmed on direct appeal on July 27, 2009, per curiam and without a written opinion. Kennedy v. State, 13 So. 3d 60 (Fla. 1st DCA 2009) (Table) (copy at Ex. G).
Petitioner then began a continuous stream of filings to overturn his convictions in state court. On September 25, 2009, petitioner filed a petition for writ of habeas corpus in the Florida First District Court of Appeal ("First DCA"), alleging ineffective assistance of appellate counsel (counsel's failure to argue that the trial court committed fundamental error by prohibiting defense counsel from making a particular closing argument). (Ex. S). The First DCA denied the petition on the merits on November 9, 2009. Kennedy v. State, 22 So. 3d 693 (Fla. 1st DCA 2009) (copy at Ex. T).
On November 18, 2009, petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, (ex. H, pp. 1-17), which he later amended (id. ,pp. 20-42). The motion challenged only petitioner's conviction in Case No. 07-3971. On February 16, 2010, the state circuit court struck both motions as facially insufficient, with leave to amend within thirty days. (Id., pp 45-46). On March 1, 2010, petitioner filed a second amended Rule 3.850 motion. (Ex. H, pp. 47-69). The circuit court denied relief on the merits in an order filed April 20, 2010. (Id., pp. 70-140). The First DCA per curiam affirmed on October 15, 2010, without a written opinion. Kennedy v. State, 49 So. 3d 750 (Fla. 1st DCA 2010) (Table) (see Ex. I). The mandate issued November 10, 2010. (Id.).
While petitioner's first Rule 3.850 motion was pending, petitioner filed a Rule 3.850 motion on November 25, 2009, related to his pleas in Case Nos. 07-3971, 08-108, 08-109, 08-111 and 08-112 (hereinafter "the 2008 cases"). (Ex. J, pp. 1-28).After striking petitioner's motion with leave to amend (id., pp. 29-32) and petitioner's filing an amended motion dated April 5, 2010 (id., pp. 33-62), the state circuit court granted a limited evidentiary hearing as to petitioner's first claim (that petitioner's plea was involuntary because he did not understand the trial rights he was giving up by entering his plea). (Id., p. 65). On November 23, 2010, when the evidentiary hearing was set to commence, petitioner decided he would waive that claim. (Ex. K, pp. 101-08). On February 14, 2011, the circuit court entered an order denying relief, finding petitioner's first claim withdrawn and his second claim without merit. (Id., pp. 110-81). The First DCA per curiam affirmed on May 19, 2011, without a written opinion. Kennedy v. State, 66 So. 3d 943 (Fla. 1st DCA 2011) (Table) (see Ex. L). The mandate issued August 17, 2011. (Id.).
Also while petitioner's first Rule 3.850 motion was pending, petitioner filed another "Motion for Postconviction Relief" on August 5, 2010, challenging his convictions in Case No. 07-3971, the 2008 cases, and the nolle prossed cases. (Ex. K, pp. 66-79). On August 12, 2010, the state circuit court struck the motion with leave to amend, noting that the appeal of the order on petitioner's first Rule 3.850 motion in Case No. 07-3791 was pending and the court was without jurisdiction to consider any new claims related to that case, and that petitioner's motion failed to state specifically to which cases his present postconviction claim applied. (Ex. K, pp. 80-81). Shortly thereafter petitioner retained counsel. On November 1, 2010, petitioner, through counsel, filed a motion for postconviction relief under Rule 3.850 styled as being filed in all case numbers, including the 2007 case, the 2008 cases, and the previously nolleprossed cases. (Id., pp. 89-91). On November 3, 2010, petitioner filed a counseled "Third Amended Motion for Postconviction Relief," again styledas being filed in all cases numbers. (Id., pp. 92-94). The motion asserted one ground for relief- that the 25-year mandatory minimum should not apply to petitioner. (Id.). The circuit court's February 14, 2011 order, discussed above, denied relief on petitioner's November 1, 2010 motion and his November 3, 2010 motion on state procedural grounds. (Ex. K, pp. 110-181). The First DCA per curiam affirmed on May 19, 2011, without a written opinion. Kennedy v. State, 66 So. 3d 943 (Fla. 1st DCA 2011) (Table) (see Ex. L). The mandate issued August 17, 2011. (Id.).
On May 26, 2011, petitioner filed a petition for writ of habeas corpus in the state circuit court to address belated postconviction claims. (Ex. M, pp. 1-36). The circuit court denied the motion on August 16, 2011. (Ex. N, pp. 37-218). Petitioner filed a notice of appeal (id., p. 219), but his appeal was dismissed on August 29, 2012, pursuant to petitioner's motion for voluntary dismissal. (Ex. O).
On September 14, 2011, petitioner filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). (Ex. P). The state circuit court denied the motion on October 4, 2011. (Ex. Q). The First DCA per curiam affirmed on February 7, 2012, without a written opinion. Kennedy v. State, 93 So. 3d 1017 (Fla. 1st DCA 2012) (Table) (see Ex. R). The mandate issued April 2, 2012. (Id.).
Petitioner filed his original federal habeas petition in this court on May 23, 2012 (doc. 1, p. 1), which he later amended (doc. 13). The amended petition raises eleven grounds for relief. (Doc. 13). Respondent asserts that each of petitioner's claims fails for one or more of the following reasons: (1) the claim is not cognizable on federal habeas review; (2) the claim is...
To continue reading
Request your trial