Link v. Tucker

• Decision Date: 03 May 2012
• Docket Number: Case No. 3:10cv12/LAC/EMT.
• Citation: 870 F.Supp.2d 1309
• Parties: Ronald W. LINK, Petitioner, v. Kenneth S. TUCKER, Respondent.
• Court: U.S. District Court — Northern District of Florida

870 F.Supp.2d 1309

Ronald W. LINK, Petitioner,

v.Kenneth S. TUCKER,¹ Respondent.

Case No. 3:10cv12/LAC/EMT.

United States District Court,

N.D. Florida,

Pensacola Division.

May 3, 2012.

Ronald W. Link, Lowell, FL, pro se.

ORDER

LACEY A. COLLIER, Senior District Judge.

This cause comes on for consideration upon the magistrate judge's Report and Recommendation dated March 6, 2012 (doc. 22). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de novo determination of the objections filed.

Having considered the Report and Recommendation, and the timely filed objections thereto, I have determined that the Report and Recommendation should be adopted.

Accordingly, it is now ORDERED as follows:

1. The magistrate judge's Report and Recommendation is adopted and incorporated by reference in this order.

2. The petition for writ of habeas corpus (doc. 1) is DENIED.

3. A certificate of appealability is DENIED.

ORDER and REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, United States Magistrate Judge.

This cause is before the court on Petitioner's petition for writ of habeas corpus filed under 28 U.S.C. § 2254 and supporting memorandum (docs. 1, 2). Respondent filed an answer and relevant portions of the state court record (doc. 12). Petitioner filed a reply (doc. 17).

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, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief.

I. BACKGROUND AND PROCEDURAL HISTORY

The relevant aspects of the procedural background of this case are established by the state court record ( see doc. 12).² Petitioner was charged in the Circuit Court in and for Escambia County, Florida, with one count of DUI manslaughter (Count 1), one count of DUI with serious bodily injury (Count 2), and one count of leaving the scene of an accident with death (Count 3) (Ex. A at 3–4). Following a jury trial on April 20–21, 2006, he was found guilty as charged (Ex. A at 70, Exs. B, C, D, E, F). Petitioner was adjudicated guilty and sentenced to a term of 180 months of imprisonment on Count 1, with pre-sentence credit of 970 days, a consecutive term of 60 months of imprisonment on Count 2, and a term of 180 months of probation on Count 3, to run consecutively to the sentence on Count 2 (Ex. A at 72–124, 153–60).

Petitioner, through counsel, appealed the judgment and sentence to the Florida First District Court of Appeal (“First DCA”), Case No. 1D06–3218 (Ex. A at 164). Petitioner's counsel filed a brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there were no meritorious arguments to support the contention that reversible error occurred in the trial court (Ex. G). Petitioner filed a pro se initial brief (Ex. I). The First DCA affirmed the judgment per curiam without written opinion on August 28, 2007 (Ex. J). Link v. State, 963 So.2d 704 (Fla. 1st DCA 2007) (Table). Petitioner did not seek further review.

On August 16, 2008, Petitioner filed a motion for post-conviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. K at 1–15). On November 7, 2008, the state circuit court issued an order striking the motion, because it contained legally insufficient claims, without prejudice to Petitioner's filing an amended motion within thirty (30) days ( id. at 16–17). Petitioner filed an amended motion ( id. at 18–34). The state circuit court summarily denied the motion on March 30, 2009 ( id. at 35–40). Petitioner appealed the decision to the First DCA, Case No. 1D09–2451 (Ex. M). The First DCA affirmed the decision per curiam without written opinion on October 13, 2009, with the mandate issuing December 7, 2009 (Exs. O, R). Link v. State, 22 So.3d 543 (Fla. 1st DCA 2009) (Table).

On June 16, 2009, Petitioner filed a motion to correct illegal sentence, pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure (Ex. S). On July 24, 2009, the state circuit court rendered an order dismissing the motion, because it failed to include an oath, with leave to re-file the motion with a proper oath ( id.). On August 8, 2009, Petitioner filed a “Motion for Clarification” ( id.). The state circuit court dismissed the motion on October 8, 2009 ( id.).

Petitioner filed the instant federal habeas action on January 14, 2010 (doc. 1). Respondent concedes the habeas petition is timely (doc. 12 at 2–3).

II. STANDARD OF REVIEW

Section 2254(a) of Title 28 provides that “a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” upon a showing that his custody is in violation of the Constitution or laws of the United States. As the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for habeas review of state court decisions under § 2254 as brought about by the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104–132, § 104, 110 Stat. 1214, 1218–19. In relevant part, section 2254(d) now provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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 the State court proceeding.

28 U.S.C.A. § 2254 (2002).

The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).³ The appropriate test was described by Justice O'Connor as follows:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied—the state court adjudication resulted in a decision that (1) “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id., 529 U.S. at 412–13, 120 S.Ct. 1495 (O'Connor, J., concurring); Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 2119–20, 147 L.Ed.2d 125 (2000). In employing this test, the Supreme Court has instructed that on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a formal State court proceeding, the federal court should first ascertain the “clearly established Federal law,” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The law is “clearly established” if Supreme Court precedent at the time “would have compelled a particular result in the case.” Neelley v. Nagle, 138 F.3d 917, 923 (11th Cir.1998), overruled on other grounds by Parker v. Head, 244 F.3d 831, 835 (11th Cir.2001).

Next, the court must determine whether the State court adjudication is contrary to the clearly established Supreme Court case law, either because “ ‘the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or because ‘the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.’ ” Lockyer, 538 U.S. at 73, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 405–06, 120 S.Ct. 1495). The Supreme Court has clarified that “[a]voiding these pitfalls does not require citation to our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002) (quoting Williams, 529 U.S. at 405–06, 120 S.Ct. 1495). If the State court decision is found in either respect to be contrary, the district court must independently consider the merits of the petitioner's claim.

If on the other hand, the State court applied the correct Supreme Court precedent and the facts of the Supreme Court cases and the petitioner's case are not materially indistinguishable, the court must go to the third step and determine whether the State court “unreasonably applied” the governing legal principles set forth in the Supreme Court's cases. The ...