Kleckley v. Florida

• Decision Date: 27 June 2022
• Docket Number: 19-cv-62972-ALTMAN/REID
• Parties: ROBERT KLECKLEY, Petitioner, v. STATE OF FLORIDA, Respondent.
• Court: U.S. District Court — Southern District of Florida

ROBERT KLECKLEY, Petitioner, v. STATE OF FLORIDA, Respondent.

No. 19-cv-62972-ALTMAN/REID

United States District Court, S.D. Florida

June 27, 2022

REPORT OF MAGISTRATE JUDGE

LISETTE M. REID UNITED STATES MAGISTRATE JUDGE

This cause is before the Court upon Petitioner, Robert Kleckley's (“Petitioner”) Petition for writ of habeas corpus under 28 U.S.C. § 2254. For the reasons addressed below, it is RECOMMENDED that the Petition be DENIED.

BACKGROUND

Petitioner is a state prisoner convicted of attempted murder (“Count I”) and shooting into an occupied vehicle (“Count II”) in 2001. The crime arose from an altercation between Petitioner and the victim outside of a nightclub in Plantation, Florida, resulting in Petitioner shooting the victim as the victim attempted to flee. He was sentenced to life imprisonment on Count I and to a consecutive 30-year sentence on Count II. On April 9, 2010 Petitioner was resentenced on Count II. Although Petitioner has raised 11 claims in this case, for reasons that will be explained, the only timely issues before the Court in this case relate to Petitioner's resentencing on Count II on April 9, 2010.

The Instant Petition

Petitioner initiated the instant 28 U.S.C. § 2254 Petition on November 27, 2019. [ECF No. 1]. Petitioner asserts the following claims:

Claim 1: Counsel was ineffective for not advising the trial court of a conflict of interest at resentencing.

Claim 2: Counsel was ineffective for failing to cross-examine a state witness during the resentencing.

Claim 3: Counsel was ineffective for failing to call Dorothy Jones as a witness at the resentencing.

Claim 4: Counsel was ineffective for failing to object to the “defective” verdict form thereby depriving the jury of its pardoning power.

Claim 5: Counsel was ineffective for failing to renew objections to the “tainted” jury panel and for bolstering prejudicial statements in admitting Petitioner's guilt.

Claim 6: The trial court erred in reclassifying and enhancing attempted first-degree murder in Count I, which resulted in an illegal sentence because the verdict form did not contain an option to find Petitioner guilty of the charged offense or a less offense.

Claim 7: The trial court erred in enhancing and reclassifying Count I from a first-degree felony to a life felony.

Claim 8: Counsel was ineffective for failing to retain an expert to conduct fingerprint analysis on the various items found in the suspect vehicle.

Claim 9: Counsel was ineffective for failing to retain an expert to conduct an analysis of hair found in the suspect vehicle.

Claim 10: There was lack of probable cause to support Petitioner's arrest.

Claim 11: The trial court erred in sentencing Petitioner as a Habitual Felony Offender.

See generally [Id.].

DISCUSSION

I. Timeliness

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs petitions for writ of habeas corpus brought under 28 U.S.C. § 2254. S. 735, 104th Cong. § 102-108 (1996). See Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998) (per curiam). The AEDPA imposes a one-year statute of limitations on petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). Specifically, the AEDPA provides that the limitations 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 action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that 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.

See Id.

The Eleventh Circuit has held the one-year statute of limitations period begins to run ninety days after the state appellate court affirms a petitioner's conviction, and not ninety days from when the mandate issues. Chavers v. Sec 'y, Florida Dep t of Corr., 468 F.3d 1273, 1275-76 (11th Cir. 2006). The limitations period is tolled, however, while a properly filed application for postconviction or other collateral review is pending in the state court. See 28 U.S.C. § 2244(d)(2).

Consequently, if a petitioner sat on any claim creating time gaps in the review process, the one-year clock would continue to run. Kearse v. Sec'y, Fla. Dep't of Corr., 736 F.3d 1359, 1362 (11th Cir. 2013).

A. Initial Appeal and Petitioner's First Set of Post-Conviction Motions

Regarding his conviction and initial sentence, Petitioner timely appealed his conviction to the Fourth District Court of Appeal (“Fourth DCA”). [ECF No. 12-1 at 25]. On May 16, 2001, the Fourth DCA affirmed the conviction, but remanded for correction of the sentencing order. Kleckley v. State, 787 So.2d 868 (Fla. 4th DCA 2001). The mandate issued on June 1, 2001. [ECF No. 121 at 72].

Thereafter, Petitioner filed his first state habeas petition, in which he alleged ineffective assistance of appellate counsel. [Id. at 74]. Specifically, Petitioner alleged counsel failed to order or have the sentencing hearing transcribed. The Fourth DCA granted this petition, and ordered that on remand the trial court was to appoint appellate counsel to assist Petitioner in preparing the record on appeal. Kleckley v. State, 810 So.2d 1081 (Fla. 4th DCA 2002). The mandate issued on April 5, 2002. [ECF No. 12-1 at 100].

Petitioner filed a Fla. R. Crim. P. 3.850 motion for post-conviction relief on April 5, 2002. [Id. at 102]. The trial court denied the petition as improperly filed, [Id. at 116], and the Fourth DCA affirmed and ordered that Petitioner file a motion compliant with Fla. R. Crim. P. 3.987 within 30 days. Kleckley v. State, 815 So.2d 737 (Fla. 4th DCA 2002). Petitioner filed his renewed motion for post-conviction relief on January 15, 2003. [ECF No. 12-1 at 126]. The trial court denied this motion as untimely, but on November 5, 2002, the Fourth DCA reversed and remanded finding there was a “good faith factual dispute regarding the date [Petitioner] filed the renewed motion.” Kleckley v. State, 857 So.2d 1009 (Fla. 4th DCA 2003). The Fourth DCA ordered that the trial court conduct an evidentiary hearing to determine whether the renewed motion was timely filed. Id. On remand the trial Court denied Petitioner's renewed motion for post-conviction relief [ECF No. 12-2 at 11], and the Fourth DCA affirmed on December 21, 2005. [Id. at 15]. The mandate issued on January 20, 2006. [Id. at 16]. Petitioner filed another state habeas petition on December 28, 2005. [Id. at 18-25]. The Fourth DCA denied the petition as untimely on January 27, 2006. [Id. at 27].

Petitioner filed a Fla. R. Crim. P. 3.800(a) motion to correct illegal sentence on January 12, 2006, [Id. at 28-31], which the trial court denied on February 23, 2006. [Id. at 45]. The Fourth DCA affirmed the trial court's decision on May 24, 2006, Kleckley v. State, 932 So.2d 209 (Fla. 4th DCA 2006), and the mandate issued on August 4, 2006. [ECF No. 12-2 at 61]. A subsequent motion to correct illegal sentence was filed on April 25, 2007. [Id. at 62-80]. This motion was denied as well, [Id. at 111], with the Fourth DCA affirming on September 26, 2007, Kleckley v. State, 967 So.2d 314 (Fla. 4th DCA 2007). The mandate issued on December 7, 2007. [ECF No. 12-2 at 136].

B. New Sentencing and Petitioner's Second Set of Post-Conviction Motions.

Petitioner filed a third motion to correct illegal sentence on May 21, 2009, [Id. at 137], which the trial court denied on June 11, 2008. [Id. at 167]. On appeal, however, the Fourth DCA reversed “the summary denial of [Petitioner's] claim that his habitual sentence imposed for count two is illegal and remand for the attachment of record portions conclusively refuting his or for resentencing ... [and] affirm the trial court's denial of appellant's other claim.” Kleckley v. State, 4 So.3d 1290 (Fla. 4th DCA 2009). In accordance with the Fourth DCA's instructions, on April 9, 2010, the trial court resentenced Petitioner to 30 years in prison as a Habitual Felony Offender. [ECF No. 12-2 at 187]. The new sentence was affirmed by the Fourth DCA on April 18, 2012. Kleckley v. State, 86 So.3d 1135 (Fla. 4th DCA 2012). A motion for rehearing was denied [ECF No. 12-2 at 282], and the mandate issued on June 8, 2012. [Id. at 284].

Petitioner moved for post-conviction relief on October 1, 2012. [Id. at 285]. The trial court denied the motion on January 21, 2016. [ECF No. 12-3 at 237]. On July 14, 2016, the Fourth DCA affirmed the trial court's denial of the motion. Kleckley v. State, No. 4D16-1149, 2016 WL 3751181, at *1 (Fla. 4th DCA 2016). The Fourth DCA denied a subsequent motion for rehearing and for clarification, [ECF No. 12-3 at 267], and also warned Petitioner that continuing to file “abusive, repetitive, malicious, and/or other frivolous filing[s] may result in sanctions.” [Id. at 288]. The mandate issued on September 16, 2016. [Id. at 290].

Petitioner filed his fourth, and final, motion to correct illegal sentence on January 9, 2017. [Id. at 292]. The motion was again denied by the trial court [ECF No. 12-4 at 99], as was a motion for rehearing. [Id. at 103 110]. The trial court's decision was affirmed on appeal. Kleckley v. State, No. 4D19-2366, 2019 WL 5260245, at *1 (Fla. 4th DCA 2019). The Fourth DCA denied Petitioner's subsequent motion for rehearing and request for written opinion. [ECF No. 12-4 at 142]. The mandate...