Kessler v. Sec'y of the Fla. Dep't of Corrs.
| Decision Date | 23 February 2022 |
| Docket Number | 4:19cv468-MW-HTC |
| Parties | PHILLIP KESSLER, Petitioner, v. SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
ORDER AND REPORT AND RECOMMENDATION
Petitioner Phillip M. Kessler, proceeding pro se, filed a petition under 28 U.S.C. § 2254 challenging his conviction in the circuit court of Leon County, Florida, 2011 CF 3412, for four (4) counts of unlawful use of computer service to solicit a child to engage in illegal sexual conduct. ECF Doc. 1. The matter was 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 considering the petition, the State's response (ECF Doc. 27), and Petitioner's reply (ECF Doc 29), the undersigned recommends the petition be DENIED without an evidentiary hearing.
In October of 2011, Petitioner was a 38-year-old Air Force National Guardsman stationed at Tyndall Air Force Base (“Tyndall AFB”) in the Panama City area. ECF Doc. 22-5 at 280. On October 19, 2011, he was arrested as part of a sting operation conducted by members of the Tallahassee Police Department (“TPD”) and other agencies, targeting individuals who solicit young children for sex over the Internet.
Petitioner's involvement in the sting operation began with his response to an October 11, 2011, 3:11 p.m. EST, post by an undercover investigator with the TPD, Russell Huston. Investigator Huston had placed a post on a popular e-commerce website in the “casual encounters” section of Panama City, FL. This section is used by individuals looking for sex, and the title of the post stated, “Do u wanna b my 1st??? - w4m - 99.” ECF Doc. 22-2 at 158; ECF Doc. 22-5 at 55. Petitioner responded to the post within minutes. In Investigator Huston's first email to Petitioner, Huston told Petitioner he was a 14-year-old girl named Amber. Despite that information, Petitioner persisted in soliciting the purported minor child to meet for sex.[1] Petitioner described various illegal sexual acts he would like to perform with the purported minor child, ECF Doc. 22-2 at 160-77, and discussed arrangements for him to visit and for the two to engage in sexual conduct. Id. In these conversations, Petitioner described himself as a “clean cut, nice looking military guy” and sent a picture of himself in military attire, ECF Doc. 22-5 at 72-27 & 88; ECF Doc. 22-2 at 248. He also provided a phone number to a prepaid phone. ECF Doc. 22-5 at 182 & 212. Although Petitioner promised to travel to engage in sex with the minor on two occasions, he did not go either time. ECF Doc. 22-5 at 90.
As part of the TPD investigation and through legal process, Investigator Huston associated Petitioner with the Tyndall AFB Area. ECF Doc. 22-2 at 21; ECF Doc. 22-5 at 86. Investigator Huston sent the picture of Petitioner that Petitioner provided to the Office of Special Investigations (“OSI”) to see if they could identify the individual from their base. ECF Doc. 22-5 at 228.
The OSI agents identified Petitioner as a full-time Air Force National Guardsman at Tyndall AFB and after locating him, brought him to the office of the OSI at the AFB, ECF Doc. 22-2 at 23, where he was interviewed first by TPD Investigator Huston and Florida Department of Law Enforcement (“FDLE”) Agent Chad Hoffman and then by OSI agents. ECF Docs. 22-2 at 23-24 and 22-5 at 229-30. A recording of that interview, in which Petitioner made many inculpatory admissions, was played for the jury at trial. ECF Doc. 22-5 at 96-154. After the interview, OSI agents arrested Petitioner and transported him to the Bay County Jail. ECF Doc. 22-2 at 24.
Petitioner was charged in an Eighth Amended Information with four (4) counts of “Unlawful Use of Computer Service” in violation of Fla. Stat. § 847.0135(3)(a). ECF Doc. 22-1 at 38. Each count was identical except for the date on which Petitioner was alleged to have solicited a person he believed to be a minor to commit “Lewd and Lascivious Battery, Lewd and Lascivious Molestation, Lewd and Lascivious Conduct, and/or Sexual Battery; or to otherwise engage in unlawful sexual conduct.” Id. The dates at issue were October 11, 12, 13 and 18, 2011.
A trial was conducted on March 10, 12-13, 2014, and a jury found Petitioner guilty on all four (4) counts. On September 3, 2014, the state court sentenced Petitioner as follows: (1) 60 months on count 1; (2) 24 months consecutive on count 2, followed by 3 years sex offender probation; (3) five years sex offender probation consecutive to probation in count 2 on count 3; and (4) five years sex offender probation concurrent with count 3 on count 4. ECF Doc. 22-2 at 134. Thus, the state court sentenced Petitioner to 84 months' imprisonment followed by 8 years sex offender probation.[2] Id. The judge also imposed fourteen (14) special conditions of probation which Petitioner challenges in Ground Four.
Generally, under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner has one (1) year from when the judgment becomes final to file an application for habeas relief. 28 U.S.C. § 2244(d)(1). Such time is tolled by the filing and pendency of post-conviction motions, such as a Rule 3.800 or 3.850 motion. 28 U.S.C. § 2244(d)(2). As discussed below, the instant petition is timely.
Petitioner filed a direct appeal of his conviction and sentence and, on May 17, 2016, the First District Court of Appeals (“First DCA”) affirmed the judgment, per curiam and without written opinion. See 1D14-4045; ECF Doc. 22-6 at 143. Petitioner did not seek review in United States Supreme Court. ECF Doc. 1 at 3-4. Before Petitioner's judgment became final[3], however, Petitioner filed a “Motion to Correct, Modify, Reduction” [sic] his sentence pursuant to Fla. R. Crim. P. 3.800(c).
ECF Doc. 22-6 at 153. The circuit court denied the motion on August 24, 2016. Id. at 192.
Less than a month later, on September 19, 2016, Petitioner filed a “Motion to Vacate Judgement and Sentence”, pursuant to Fla. R. Crim. P. 3.850. Id. at 198. After several amendments and an evidentiary hearing, the state court denied the motion. Because Petitioner appealed the state court's denial to the First DCA, the motion tolled the AEDPA clock until July 30, 2019, when the First DCA issued its mandating affirming the state court's denial of the motion. ECF Doc. 22-8 at 40. Petitioner filed the federal petition within two months, on September 19, 2019. ECF Doc. 1. Thus, the instant petition is timely filed.
The AEDPA governs a state prisoner's petition for habeas corpus relief. 28 U.S.C. § 2254. Under that Act, relief may only be granted on a claim adjudicated on the merits in state court if the adjudication:
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S.Ct. 1697, 1702 (2014). A state court's violation of state law is not enough to show that a petitioner is in custody in violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing legal principles set forth in the decisions of the United States Supreme Court when the state court issued its decision. White, 134 S.Ct. at 1702; Casey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Habeas relief is appropriate only if the state court decision was “contrary to, or an unreasonable application of, ” that federal law. 28 U.S.C. § 2254(d)(1). A decision is “contrary to” clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application” of Supreme Court precedent if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Bottoson, 234 F.3d at 531. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). “[T]his standard is difficult to meet because it was meant to be.” Sexton v. Beaudreaux, 138 S.Ct. 2555, 2558 (2018).
Finally when reviewing a claim under 28 U.S.C. § 2254(d), a federal court must remember that any “determination of a factual issue made by a State court shall be presumed to be correct[, ]” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (...
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