Mack v. Singletary, 97-1175-CIV.
| Citation | 142 F.Supp.2d 1369 |
| Decision Date | 03 January 2001 |
| Docket Number | No. 97-1175-CIV.,97-1175-CIV. |
| Parties | Roderick Glenn MACK, Petitioner, v. Harry K. SINGLETARY, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
Thomas Franklin Almon, Jr., Miami, FL, Michael B. Holden, Fort Lauderdale, FL, Roderick Mack, Immokalee, FL, for Petitioner.
Cynthia Ann Greenfield, Mark Rosenblatt, Office of the Attorney General, Department of Legal Affairs, Miami, Fort Lauderdale, FL, Respondent.
THIS CAUSE came before the Court upon Roderick Glenn Mack's Petitioner for Writ of Habeas Corpus.
THE MATTER was referred to the Honorable United States Magistrate Judge Barry L. Garber. A report recommending that the Court deny Petitioner's Petitioner for Writ of Habeas Corpus, dated November 14, 2000, has been submitted. Petitioner filed his objections on December 13, 2000.
The Court has conducted a de novo review of the file and is otherwise fully advised in the premises. Accordingly, it is
ORDERED AND ADJUDGED that United States Magistrate Judge Garber's Report of November 14, 2000, is hereby RATIFIED, AFFIRMED and APPROVED in its entirety. Therefore it is
ORDERED AND ADJUDGED that Petitioner's Petition for Writ of Habeas Corpus is DENIED. It is further ORDERED AND ADJUDGED that all pending motions are DENIED as MOOT. It is further
ORDERED AND ADJUDGED that this case is closed.
REPORT AND RECOMMENDATION
THIS MATTER is before the Court pursuant to an Order of Reference by the Honorable Donald L. Graham, United States District Judge. Petitioner, Roderick Glenn Mack, has filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. This Cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B).
For its consideration of this Petition, the Court has the following: a sworn memorandum of law filed by Petitioner, the state's Response and Supplemental Response to an Order to Show Cause and Supplemental Order to Show Cause, with multiple additional exhibits, and the transcript of Petitioner's state trial.
On July 9, 1990, Petitioner was arrested and subsequently charged by information in Dade County, Florida, of attempted first-degree murder, armed robbery, unlawful possession of a firearm during the commission of a felony and aggravated assault. See Response to Order to Show Cause ("Resp.") at 1 [DE# 6]. These charges were in connection with an armed robbery and shooting at a Miami grocery store. Petitioner entered a plea of not guilty and proceeded to jury trial with two co-defendants on April 8, 1991, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. Id. at 2. On April 17, 1991, Petitioner was found guilty of attempted first-degree murder, armed robbery, aggravated assault, simple assault and the unlawful display of a firearm. Id. He was sentenced to life imprisonment as an habitual offender.
Petitioner prosecuted a direct appeal of his conviction and sentence, raising the following claims:
1. The trial court erred in failing to conduct an adequate Nelson inquiry to sufficiently explore the defendant's allegations of incompetency of and conflict with court-appointed counsel and failed to advise defendant of his right to self-representation;
2. The trial court erred in failing to grant a continuance;
3. The trial court erred in failing to conduct a hearing to determine whether Petitioner's post-arrest custodial statement was voluntary;
4. The trial court erred in failing to advise Petitioner of his constitutional right to testify notwithstanding defense counsel's advice;
5. The trial court erred in precluding Petitioner from eliciting the exculpatory portion of his post-arrest statement;
6. The trial court erred in convicting and sentencing Petitioner for the unlawful display of a firearm where the offense arose from the robbery charge during the commission of a felony and where the offense arose from the same incidents upon which his conviction for robbery with a firearm was based;
7. The trial court erred in adjudicating Petitioner an habitual offender, and;
8. The trial court erred in sentencing Petitioner as an habitual offender where the court indicated there was no discretion in applying the habitual offender statute's permissive penalties.
See Resp., Exh. F [DE# 7]. The Third District Court of Appeal reversed Mack's conviction for the unlawful display of a firearm, and remanded for re-sentencing, finding that the trial judge did have discretion to apply the habitual offender statute's permissive penalties. See Mack v. State, 608 So.2d 897, 898 (Fla. 3d DCA 1992). The appellate court rejected without discussion Petitioner's remaining claims as non-meritorious. Id.
On July 14, 1993, Mack was re-sentenced to life in prison. On appeal, Petitioner filed a memorandum brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Third District Court of Appeal affirmed per curiam on April 5, 1994. See Mack v. State, 637 So.2d 250 (Fla. 3d DCA 1994).
Petitioner subsequently filed a motion for post-conviction relief pursuant to Fla. R. Cr. P. 3.850, raising in part the claim of ineffective assistance of counsel. Relief was denied on March 7, 1995. See Resp., Exh. P [DE# 7]. The Third District Court of Appeal affirmed per curiam. See Mack v. State, 654 So.2d 1072 (Fla. 3d DCA 1995).
On January 24, 1996, Mack filed a petition for writ of habeas corpus in state court, claiming that: (1) the flight instruction by the trial court was reversible error; (2) evidence at trial was insufficient to support a conviction; and (3) the identity of Petitioner was never proven as the perpetrator. This petition was denied. See Resp., Exh. T [DE# 7]. On August 26, 1996, Petitioner filed a second motion for post-conviction relief pursuant to Fl. R. Cr. P. 3.850, raising the claim that attempted felony murder has been declared unconstitutional by the Florida Supreme Court.1 This motion was denied. See Resp., Exh. V [DE# 7].
On March 4, 1997, Petitioner filed the instant Petition and this federal proceeding ensued. Mack makes the following claims:
1. The trial court erred in failing to conduct an adequate inquiry into Petitioner's claims of ineffective assistance of counsel and neglected to inform Petitioner of his right to self-representation, in violation of the Sixth and Fourteenth Amendments to the Constitution;
2. Petitioner's due process rights were violated when the trial court refused to grant a continuance to allow retained counsel to prepare a defense;
3. The trial court erred in prohibiting Petitioner from eliciting exculpatory portions of his post-arrest confession;
4. The trial court violated Petitioner's Fifth, Sixth and Fourteenth Amendment rights in failing to protect his constitutional right to testify;
5. The trial court violated Petitioner's Fifth, Sixth and Fourteenth Amendment rights in admitting Mack's confession without first determining that the confession was knowing and voluntary, and;
6. Petitioner was denied effective assistance of appellate counsel because counsel failed to raise certain meritorious issues on appeal.
See Habeas Pet. at 5-10 [DE# 1].
It is axiomatic that issues raised in a federal petition for a writ of habeas corpus must first have been fairly presented in the state courts and thereby exhausted. See Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Hutchins v. Wainwright, 715 F.2d 512 (11th Cir.1983). The exhaustion of state remedies is a condition precedent to federal habeas corpus relief, and the petitioner has the burden of proof on the exhaustion requirement. See Delaney v. Giarrusso, 633 F.2d 1126 (5th Cir.1981). Exhaustion requires that the substance of the claim, as well as the federal constitutional issue, must have been presented to the state courts. Anderson, 459 U.S. at 6, 103 S.Ct. 276. When a federal habeas petitioner raises a claim previously presented in the state courts, but bases the habeas corpus claim upon new factual allegations, new legal theories, or materially different evidence than was presented to the state courts, then the claim has not been fairly presented in the state courts and the petitioner has failed to exhaust his state remedies in accordance with § 2254. Givens v. Green, 12 F.3d 1041 (11th Cir.1994).
Respondent does not dispute that Petitioner has exhausted claims two through six of his Petition. See Supplemental Response to Order to Show Cause ("Supp. Resp.") at 2 [DE# 13]. However, Respondent does dispute that Petitioner has exhausted claim one. Respondent asserts that Petitioner bases the claim on a different legal theory than the one on which it was based when raised on appeal in state court. Respondent argues that Petitioner asserted the claim in state court as "purely one of state law not involving the issue of conflict." Id. at 6 n. 1. According to Respondent, Petitioner's argument at the state court level focused on the competency of his court-appointed counsel, and did not fairly present the issue of whether a conflict existed between Petitioner and counsel.
Respondent's assertion that Petitioner's first claim is unexhausted because it was not fairly presented in state court is incorrect. On direct appeal, Mack alleged that the trial court failed to adequately investigate his claims of incompetency and conflict-ridden counsel, although the court was required to conduct a "meaningful inquiry" into his claim that his counsel was ineffective. See Resp., Exh. F at 14 [DE# 7]. It is true that the main thrust of Mack's claim was directed more toward counsel's alleged incompetence, and arguably less so toward the issue of conflict. However, Mack also asserted that the state court never inquired into the fact that he wanted to suppress his confession...
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