Lee v. Sec'y, Dep't of Corr.

• Decision Date: 04 May 2021
• Docket Number: Case No. 8:18-cv-989-MSS-JSS
• Parties: CHARLES R. LEE, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

CHARLES R. LEE, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:18-cv-989-MSS-JSS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

May 4, 2021

ORDER

Lee petitions for the writ of habeas corpus under 28 U.S.C. § 2254 challenging his state court convictions for trespass and aggravated battery. (Doc. 1) The Respondent asserts that the statute of limitations bars the petition and the one ground in the petition is procedurally barred and without merit. (Doc. 9) Lee replies that the Respondent incorrectly calculates the statute of limitations and contends that he is entitled to relief. (Doc. 13)

PROCEDURAL HISTORY

A jury found Lee guilty of trespass and aggravated battery. (Doc. 11-2 at 274, 302) The trial court sentenced Lee to time served for the trespass conviction and 15 years of prison for the aggravated battery conviction. (Doc. 11-2 at 305, 308)

The state appellate court affirmed the convictions and sentences in a written opinion. (Doc. 11-2 at 360-67) Lee v. State, 100 So. 3d 1183 (Fla. 2d DCA 2012). The state appellate court summarized the evidence at trial as follows (Doc. 11-2 at 362-63):

In July 2009, Mr. Lee entered the home of [the victim] and physically attacked him. A woman at this home witnessed the attack. She testified that Mr. Lee hit [the victim] with his fists and kicked him with his feet. The motive for this attack is unclear, but [the victim] was apparently attempting to assist the woman in collecting a debt that Mr. Lee owed either the woman or another member of her family.

Mr. Lee testified, claiming that he went to the home to give the woman some of the money that he owed. He claimed that [the victim] started the fight, that he hit [the victim] in the head several times with his fists, but that he did not kick [the victim].

[The victim] testified that he had a preexisting back injury. He claimed that Mr. Lee knocked him to the ground and then kicked him both in his back and on his head. As a result of this attack, he was hospitalized for several days. [The victim] claimed that he suffered a badly swollen jaw, some fractures to his face, and lacerations on his head that required stitches. There is no evidence that his back injury was aggravated by this event. Although the State introduced photographs of the injuries, it presented no medical testimony.

The witnesses claimed that Mr. Lee was wearing "tennis shoes" when he kicked [the victim]. Our record has no photographs of the shoes, and the jury apparently knew nothing more about the shoes than [the victim's] claim that the shoes were "big."

The State's amended information charged Mr. Lee with burglary of a dwelling and aggravated battery. The information charged that the battery was aggravated both because the battery caused great bodily harm, permanent disability, or permanent disfigurement and because Mr. Lee used a deadly weapon, which the information described as "shoes or boots."

. . .

The verdict form did not separate the two theories of aggravated battery. Without objection, the jury was asked to determine only whether Mr. Lee was "guilty of aggravated battery, as charged." The jury returned a verdict, finding Mr. Lee guilty of the lesser offense of trespass on the charge of burglary but guilty as charged on the count of aggravated battery.

Lee moved for post-conviction relief (Doc. 11-2 at 412-63), the post-conviction court denied the motion (Doc. 11-3 at 31-61), and the state appellate court affirmed. (Doc. 11-3 at 63) Lee's federal petition followed.

TIMELINESS

A one-year statute of limitations applies to a federal habeas petition challenging a state court judgment. 28 U.S.C. § 2244(d)(1). The limitations period begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).

On October 19, 2012, the state appellate court affirmed Lee's convictions and sentences in a written opinion. Lee v. State, 100 So. 3d 1183 (Fla. 2d DCA 2012). Lee could have sought discretionary review in the state supreme court 30 days from the date of rendition of the opinion. Fla. R. App. P. 9.120(b). Lee timely filed a motion for rehearing which tolled rendition. (Doc. 11-2 at 369-70) Fla. R. App. P. 9.020(i). The state appellate court denied rehearing on November 30, 2012. (Doc. 11-2 at 371) Lee did not seek review in the state supreme court, and the time to seek that review expired on December 31, 2012. The limitations period began to run the next day on January 1, 2013. Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) ("We hold that, for a state prisoner who does not seek review in a State's highest court, the judgment becomes 'final' on the date that the time for seeking such review expires.").¹

"[A] properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim" tolls the limitations period. 28 U.S.C. § 2244(d)(2). If a petitioner appeals an order ruling on a state post-conviction motion, the limitations periodtolls until the state appellate court issues a mandate. Lawrence v. Florida, 549 U.S. 327, 331-32 (2007). Because Lee was incarcerated and proceeding pro se during collateral review in state court, the prison mailbox rule applies. Haag v. State, 591 So. 2d 614, 617 (Fla. 1992).

On December 10, 2012, Lee placed in the hands of prison officials for mailing a motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure. (Doc. 11-2 at 375-83) The post-conviction court struck the motion as procedurally deficient with leave to file an amended motion. (Doc. 11-2 at 395). Lee filed an amended Rule 3.850 motion (Doc. 11-2 at 397-407), and the post-conviction court struck the amended motion as facially insufficient with leave to file a second amended motion. (Doc. 11-2 at 409-10) Lee filed a second amended Rule 3.850 motion (Doc. 11-2 at 412-63), and the post-conviction court denied the motion on the merits. (Doc. 11-3 at 31-61) The state appellate court affirmed (Doc. 11-3 at 63), and mandate issued on December 8, 2017. (Doc. 11-3 at 64)

Even though the post-conviction court struck Lee's initial Rule 3.850 motion as procedurally deficient, Lee properly filed his amended Rule 3.850 motion and second amended Rule 3.850 motion. Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings."). For tolling, the amended motion and second amended motion related back to the date when the initial motion was filed. Morris v. Sec'y, Fla. Dep't Corrs., 991 F.3d 1351, 1354 (11th Cir. 2021) (citing Bates v. Sec'y, Dep't Corrs., 964 F.3d 1326, 1328 (11th Cir. 2020); Hall v. Sec'y, Dep't Corrs., 921 F.3d 983, 988 (11th Cir. 2019); Green v. Sec'y, Dep't Corrs., 877 F.3d 1244, 1248 (11th Cir. 2017)).

The limitations period began to run on January 1, 2013. The limitations period tolled on December 10, 2012, when Lee filed his initial Rule 3.850 motion. Morris, 991 F.3d at 1354.The limitations period was tolled through December 8, 2017 when mandate issued on appeal. Lawrence, 549 U.S. at 331-32. Lee placed his federal petition in the hands of prison officials for mailing on April 18, 2018. (Doc. 1 at 1) At that time, 130 days had run on the one-year limitations period. Consequently, Lee timely filed his federal petition. 28 U.S.C. § 2244(d)(1)(A).

PROCEDURAL BAR AND MERITS

The Respondent next asserts that the one ground in Lee's federal petition is unexhausted and procedurally barred. (Doc. 9 at 9-10) A petitioner must exhaust the remedies available in state court before a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must (1) alert the state court to the federal nature of his claim and (2) give the state court one full opportunity to resolve the federal claim by invoking one complete round of the state's established appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A federal court may stay — or dismiss without prejudice — a habeas case to allow a petitioner to return to state court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005); Rose v. Lundy, 455 U.S. 509 (1982). If the state court would deny the claim on state procedural grounds, the federal court instead denies the claim as procedurally barred. Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). A petitioner may excuse a procedural default by (1) showing cause for the default and actual prejudice from the alleged violation of federal law or (2)demonstrating a miscarriage of justice. Maples v. Thomas, 565 U.S. 266, 280 (2012); House v. Bell, 547 U.S. 518, 536-37 (2006).

Ground One

Lee asserts that the evidence at trial proved neither great bodily harm nor a deadly weapon for the aggravated battery conviction. (Doc. 2 at 2-5) He contends that the jury wrongfully convicted him of aggravated battery and his conviction violates due process. (Doc. 2 at 4-5) ("Due Process Claim") Also, Lee asserts that trial counsel was ineffective for not arguing that the prosecution failed to prove a deadly weapon for the aggravated battery conviction in either an expanded motion for judgment of acquittal or a motion for a new trial. (Doc. 2 at 2-6) ("Ineffective Assistance of Counsel Claim") He further asserts that appellate counsel was ineffective for not presenting additional argument on direct appeal that the evidence at trial failed to prove a deadly weapon. (Doc. 2 at 6) ("Ineffective Assistance of Appellate Counsel Claim").

Due Process Claim

Lee asserts that the evidence at trial proved neither great bodily harm nor a deadly weapon, and his...