Lutz v. Palmer, Case No.: 3:11cv334/LAC/EMT

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtELIZABETH M. TIMOTHY
PartiesDAVID EARL LUTZ, Petitioner, v. JOHN PALMER, Respondent.
Decision Date10 September 2012
Docket NumberCase No.: 3:11cv334/LAC/EMT

DAVID EARL LUTZ, Petitioner,
v.
JOHN PALMER, Respondent.

Case No.: 3:11cv334/LAC/EMT

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

Date: September 10, 2012


REPORT AND RECOMMENDATION

This cause is before the court on Petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (doc. 1). Respondent filed an answer and relevant portions of the state court record (docs. 14, 15, 28). Petitioner filed a reply (doc. 35).

The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(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 docs. 14, 15).1 Petitioner was charged in the Circuit Court in and for Santa Rosa County, Florida, Case No. 2002-CF-1249, with four counts of lewd or lascivious molestation (Ex.

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A at 1). Counts 1, 2, and 4 involved the same victim (R.P.), and Count 3 involved another victim (J.S.) (id.). Count 3 was severed from the other counts (Ex. B at 188-95). Petitioner went to trial on the remaining three counts on March 23-24, 2004, and the jury found him guilty on all three counts (renumbered Counts 1, 2, and 3) (Ex. A at 85-86, Exs. F, G, H). On May 3, 2004, the trial court dismissed Count 3 upon agreement of the parties (Ex. A at 100, Ex. B at 243). Petitioner was adjudicated guilty and sentenced to twenty-five years of imprisonment on Count 1, with pre-sentence credit of497 days, and a consecutive term of thirty (30) years of probation on Count 2 (Ex. A at 105-10, Ex. B at 242-75). The State announced a nolle prosequi of the severed count (Ex. B at 270).

Petitioner appealed the judgment to the Florida First District Court of Appeal ("First DCA"), Case No. 1D04-2062. On August 12, 2005, the First DCA affirmed the judgment per curiam without written opinion (Ex. L). Lutz v. State, 908 So. 2d 1061 (Fla. 1st DCA 2005) (Table). Petitioner sought certiorari review by the Florida Supreme Court and the United States Supreme Court (Exs. M-1, M-2, N-1). On March 27, 2006, the United States Supreme Court denied the petition for certiorari (Ex. N-2).

On February 28, 2007, Petitioner filed a habeas petition in the First DCA alleging ineffective assistance of appellate counsel, Case No. 1D07-1111 (Ex. O-1). The First DCA denied the petition on the merits on March 29, 2007 (Ex. O-2). Lutz v. State, 956 So. 2d 492 (Fla. 1st DCA 2007). Petitioner's motion for rehearing was denied May 30, 2007 (Ex. O-2).

On June 18, 2007, Petitioner filed a motion for post-conviction relief, pursuant to Rule 3.850 of the Florida Rules of Civil Procedure, which he subsequently amended (Ex. P at 1-20, 41-80, 90-101). On October 27, 2010, the state circuit court summarily denied the motion (id. at 102-17). Petitioner appealed the decision to the First DCA, Case No. 1D10-6584 (Ex. Q). The First DCA affirmed the decision per curiam without written opinion on May 10, 2011, with the mandate issuing July 19, 2011 (Exs. S, V). Lutz v. State, 64 So. 3d 1265 (Fla. 1st DCA 2011) (Table).

Petitioner filed his federal habeas petition on July 6, 2011 (doc. 1). The court previously determined the petition was timely (see docs. 23, 27).

II. STANDARD OF REVIEW

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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).2 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

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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 (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 813, 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] reme Court and nevertheless arrives at a result different from [Supreme Court] precedent.'" Lockyer, 538 U.S. at 73 (quoting Williams, 529 U.S. at 405-06). 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). 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 standard for an unreasonable

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application inquiry is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409. Whether a State court's decision was an unreasonable application of a legal principle must be assessed in light of the record the court had before it. Holland v. Jackson, 542 U.S. 649, 652, 124 S. Ct. 2736, 2737-38, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n.4, 122 S. Ct. 1843, 1851 n.4, 152 L. Ed. 2d 914 (2002) (declining to consider evidence not presented to state...

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