Marion v. Jones
| Decision Date | 03 January 2017 |
| Docket Number | Case No. 4:14cv207-MW/CAS |
| Parties | DANIEL MARION, Petitioner, v. JULIE L. JONES, Secretary, Department of Corrections, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
REPORT AND RECOMMENDATION TO DENY § 2254 PETITION
On April 24, 2014, Petitioner, an inmate of the Florida Department of Corrections, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Pursuant to orders directing amendment, Petitioner filed his Third Amended Petition with memorandum on December 1, 2014, by the mailbox rule. ECF Nos. 14, 15. On December 8, 2014, the Respondent was directed to file an answer, motion, or other response. ECF No. 16. Respondent's answer, with exhibits, was filed on June 8, 2015. ECF Nos. 22, 23. Petitioner filed a reply on July 8,2015, with memorandum of law. ECF No. 25. Petitioner filed a supplemental affidavit on September 6, 2016, ECF No. 26, and a second supplemental affidavit on October 19, 2016. ECF No. 28.2
The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this § 2254 petition should be denied.
By information filed on October 27, 2003, in case number 03-0426CF, in the circuit court of the Second Judicial Circuit, Wakulla County, Florida, Petitioner was charged with Count I, possession of a firearm by a convictedfelon in violation of section 790.23(1)(a), Florida Statutes; Count II, possession of cannabis in violation of section 893.13(6)(b), Florida Statutes; and Count III, possession with intent to use drug paraphernalia, in violation of section 893.147(1), Florida Statutes, all occurring on or about October 10, 2003. Ex. A at 11.3 On October 27, 2003, the State filed a motion to declare Petitioner to be a habitual violent felony offender pursuant to section 775.084, Florida Statutes. Ex. B. Petitioner subsequently entered a negotiated plea to each of the charges, and judgment and sentence was entered on May 11, 2005. Ex. C at 49. Petitioner was sentenced to one year and one day in the Department of Corrections as to Count I. He was sentenced to time served as to Counts II and III, with credit given for time served in the county jail. He was also placed on probation for three and one half years following incarceration. Ex. C at 50, 63.
On June 2, 2008, as a result of a May 22, 2008, search disclosing two firearms in a safe located in Petitioner's home, a violation of probation report was filed alleging that Petitioner violated two conditions of probation by possessing a firearm, and by a new arrest in Volusia County for being inpossession of a firearm by a convicted felon. Ex. D. A hearing was held on September 10, 2008, Ex. E, at which the circuit court found by the greater weight of the evidence that the defendant violated conditions four and five of the conditions of probation. Ex. E at 124. The court announced that Petitioner was sentenced to fifteen years in prison in case number 03-0426CF, and Petitioner was committed to the Department of Corrections. Ex. E at 131. An order of revocation was entered on September 10, 2008. Ex. F at 114.
Petitioner appealed the revocation of his probation to the state First District Court of Appeal and filed an initial brief in case number 1D08-4633 alleging that the revocation was not supported by a preponderance of the evidence and was an abuse of discretion. Ex. G. The State filed an answer brief, Ex. H, and the appellate court affirmed per curiam without opinion, in a consolidated decision with the appeal from a related case as explained below, on November 12, 2009. Ex. I, V. See Marion v. State, 23 So. 3d 113 (Fla. 1st DCA 2009) (table). The mandate was issued on December 1, 2009, Ex. J, W, and Petitioner did not seek review in the Florida Supreme Court or the United States Supreme Court.
In a related case, Petitioner was charged on October 27, 2003, in case number 03-0427CF, in the circuit court of Wakulla County with Count I, aggravated assault with a deadly weapon in violation of section 784.021(1)(a), Florida Statutes; Count II, battery in violation of section 784.03(1)(a)1, Florida Statute; and Count III, possession of cannabis in violation of section 893.13(6)(a), Florida Statutes, all also occurring on October 10, 2003. Ex. K. The State filed a motion to declare Petitioner to be a habitual violent felony offender in this case. Ex. L. Petitioner entered a negotiated plea to each of these charges and was sentenced to one year and one day in prison on Count I, and time served on Counts II and III. Ex. M. His sentence was concurrent to the sentence imposed in case number 03-0426CF. Ex. M at 23. Petitioner was placed on the same three and one half years of probation as he received after entering his plea in case number 03-0426CF. Ex. M.
The June 2, 2008, violation of probation report also alleged violation of conditions 4 and 5 of his probation relative to case number 03-0427CF by possession of a firearm and for being arrested for possession of a firearm by a convicted felon. Ex. N. The probation violation relative to this case was heard in the same September 10, 2008, hearing in which the court heard the violations relative to case number 03-0426CF. Ex. O.4 Atthe conclusion of the hearing, the court announced that it found Petitioner in violation of probation in this case and announced a sentence of five years in prison in case number 03-0427CF to run consecutively to the sentence in case number 03-0426CF. An order revoking Petitioner's probation was entered on September 10, 2008. Ex. P at 64. Petitioner was sentenced to five years in prison consecutive to the sentence in case number 03-0426CF. Ex. P at 53.
In a separate appeal to the state First District Court of Appeal, in case number 1D09-4631, Petitioner appealed the revocation and sentence in case number 03-0427CF and filed an initial brief. Ex. Q. The State filed an answer brief, Ex. R, and the Petitioner filed a reply brief. Ex. S. The State also filed a motion to consolidate this appeal with the appeal from the revocation of probation in circuit court case number 03-0426CF. Ex. T. The First District Court of Appeal granted the motion to consolidate, Ex. U, and per curiam affirmed the revocation of probation in both cases on November 12, 2009, in a consolidated decision. Ex. V. See Marion v. State, 23 So. 3d 113 (Fla. 1st DCA 2009) (table). The mandate was issued on December 1, 2009. Ex. W.
On December 29, 2009, Petitioner filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 raising four claims for relief.5 Ex. FF. Before this motion was ruled on, Petitioner filed a second Rule 3.850 motion on March 10, 2010, raising twelve claims for relief. Ex. JJ. The motion was amended by notation order on July 8, 2010, to add case citation and discussion. Ex. MM. No evidentiary hearing was conducted. The first and second Rule 3.850 motions were denied by orders rendered August 24, 2010. Ex. GG, OO. Petitioner filed a motion for rehearing of the denial of the amended second Rule 3.850 motion, Ex. PP, which was denied on September 22, 2010. Ex. QQ.
Petitioner appealed the denial of post-conviction relief to the state First District Court of Appeal and filed an initial brief in case number 1D10-5243 on September 19, 2011. Ex. RR. The state did not file a brief and, on January 31, 2012, the appellate court affirmed per curiam without opinion. Ex. TT. The mandate was issued on February 28, 2012, Ex. UU,and Petitioner's motion to recall the mandate was denied on April 17, 2012. Ex. VV. See Marion v. State, 80 So. 3d 1025 (Fla. 1st DCA 2012) (table).
During the time between Petitioner's filing of his first Rule 3.850 motion and his amended second Rule 3.850 motion, he filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(b) on February 10, 2010. Ex. HH. The motion was denied by order entered on August 24, 2010. Ex. II. The record is not clear whether an appeal was filed from this denial or if an appeal from this denial was perfected.6
On August 30, 2010, Petitioner filed a "Motion to Correct Illegal Sentence Credit for Time Served and Single Criminal Episode." Ex. WW. The motion was denied by order entered January 3, 2012. Ex. ZZ. The record does not reflect that an order was entered on Petitioner's motion for rehearing, Ex. AAA, or that an appeal was filed.
On August 30, 2011, Petitioner filed a petition for writ of habeas corpus, titled "Complaint for Writ of Habeas Corpus," in the circuit court of Wakulla County, Florida, in case number 2011-253-CA. Ex. BBB. In that complaint, he raised four claims—two challenging the revocation ofprobation, one challenging the search of his residence, and one alleging that favorable evidence was withheld. On February 6, 2014, the circuit court dismissed the petition for writ of habeas corpus without prejudice to Petitioner to seek appropriate relief in the sentencing court. Ex. CCC. The court stated that claims attacking the validity of the trial and sentencing procedures are properly raised in a Rule 3.850 motion and that a petition for a writ of habeas corpus may not be used to circumvent the time limitations for filing a Rule 3.850 motion. The court also noted that Petitioner was no longer detained in Wakulla County and the circuit court in that county had...
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