Mackey v. Sec'y

• Decision Date: 12 September 2017
• Docket Number: Case No. 8:14-cv-1274-T-36TBM
• Parties: THOMAS MACKEY, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

THOMAS MACKEY, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:14-cv-1274-T-36TBM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

September 12, 2017

ORDER

Thomas Mackey, a Florida inmate, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) challenging his Hillsborough County convictions. Respondent does not contest the timeliness of the petition in its response. (Dkt. 13.) Mackey filed an amended reply. (Dkt. 29.) Upon consideration, the petition will be denied.

PROCEDURAL HISTORY

Mackey was convicted after a 2003 jury trial of robbery with a deadly weapon and was sentenced to life in prison. (Dkt. 15, Exs. 3-5.) Mackey was sentenced as a habitual violent felony offender. Mackey v. State, 884 So.2d 118 (Fla. 2d DCA 2004). The state appellate court affirmed in a written opinion. Id. Mackey filed a 2005 motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 15, Ex. 10.) The state court summarily denied his claims. (Dkt. 15, Exs. 12, 15.) The state appellate court per curiam affirmed the denial of relief. (Dkt. 15, Ex. 17.)

Mackey filed motions to correct an illegal sentence in 2008 pursuant to Florida Rule of Criminal Procedure 3.800(a). (Dkt. 15, Exs. 24-26.) Mackey alleged that the trial court had actually sentenced him as a violent career criminal,¹ but that such a sentence was illegal because the violent career criminal statute in effect at the time of the offense was later found unconstitutional. See State v. Thompson, 750 So.2d 643 (Fla. 2000). His motions were granted in part, and Mackey was resentenced in 2010 to life in prison as a habitual violent felony offender. (Dkt. 15, Ex. 29, p. 302, Ex. 30, Ex. 34.) The state appellate court per curiam affirmed the 2010 sentence. (Dkt. 15, Ex. 35.) Mackey's 2012 Rule 3.850 postconviction motion was denied, and the state appellate court per curiam affirmed. (Dkt. 15, Exs. 43, 44, 46.)

STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court review of a state court adjudication, states:

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.

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

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.

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).

The state appellate court affirmed the denial of postconviction relief without discussion. The court's decision warrants deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").

INEFFECTIVE ASSISTANCE OF COUNSEL

Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and resulting prejudice. Id. at 687. To show deficient performance, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Additionally, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.

Mackey must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92. To show prejudice, Mackey must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Sustaining a claim of ineffective assistance of counsel on federal habeas review is difficult because review is "doubly" deferential to counsel's performance and the state court's ruling. Richter, 562 U.S. at 105. See also Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (a petitioner must overcome the "'doubly deferential' standard of Strickland and AEDPA."). If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to addressboth components of the inquiry if the defendant makes an insufficient showing on one.").

DISCUSSION

Ground One

Mackey was charged in the Thirteenth Judicial Circuit. However, after his motion to recuse the Office of the State Attorney for the Thirteenth Judicial Circuit was granted, the Office of the State Attorney for the Sixth Judicial Circuit was appointed. (See Dkt. 15, Ex. 27, p. 2.) Mackey alleges that because the authority of the Office of the State Attorney for the Sixth Judicial Circuit to prosecute his case expired prior to the date of his conviction, the trial court was without jurisdiction to adjudicate him guilty and sentence him in 2003. He alleges a violation of his federal right to due process.

Mackey raised this allegation in his 2012 postconviction motion. Contrary to Respondent's contention, he properly exhausted a federal claim² by arguing that he was denied due process in violation of the Fourteenth Amendment. (Dkt. 15, Ex. 43, p. 9.) However, the state court denied Mackey's claim as procedurally barred:

Defendant's March 20, 2003, judgment and sentence in case 96-CF-010693, became final after the Second District Court of Appeal issued its mandate for Defendant's direct appeal on September 10, 2004. See Mackey, 884 So.2d at 118-19; Beaty v. State, 684 So.2d 206 (Fla. 2d DCA 1996) (finding that a judgment and sentence becomes final for purposes of Rule 3.850 at the time the mandate is issued). Therefore, the two-year limitations period expired on or about September 10, 2006, after the conclusion of Defendant's direct review proceedings. See O'Neill v. State, 6 So.3d 630, 630 (Fla. 2d DCA 2009) (citing Valdes v. State, 904 So.2d 515 (Fla. 3d DCA 2005)). Thus, the allegations in grounds 1 and 2 of Defendant's January 5, 2012 motion attacking his March 20, 2003 conviction are untimely under rule 3.850(b).

While Defendant was resentenced on April 15, 2010, the resentencing was not a product of a direct appeal, but rather resulted from the Court granting Defendant's motions filed under Florida Rule of Criminal Procedure 3.800. The resentencing did not toll [the] two-year time limit for filing a motion under Rule 3.850 to attack Defendant's March 20, 2003 conviction. See Gillis v. State, 32 So. 3d 681, 682 (Fla. 2d DCA 2010); O'Neill, 6 So. 3d at 630; see also, Joseph v. State, 835 So.2d 1221, 1222 n. 3 (Fla. 5th DCA 2003) ("The two-year limitation is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered. An illegal sentence may be corrected at any time, and it would make no sense to allow a judgment to be attacked many years after the expiration of the two-year deadline simply because a sentence was corrected pursuant to a rule 3.800(a) motion.").

(Dkt. 15, Ex. 44, pp. 3-4.)

When the state court's rejection of a federal constitutional claim on procedural grounds is based on an "independent and adequate" state ground, federal review of the claim is barred. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). A state court's procedural ruling constitutes an independent...