McCarthan v. Jones
| Decision Date | 18 October 2017 |
| Docket Number | Case No. 4:15cv406/MW/CJK |
| Parties | MARLON DEMETRIUS MCCARTHAN, Petitioner, v. JULIE L. JONES, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (doc. 1). Respondent filed an answer, providing relevant portions of the state court record (doc. 34). Petitioner replied (doc. 43). 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, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to habeas relief, and that the petition should be denied.
On April 9, 2010, petitioner approached Ulysses Robinson from behind as Robinson was about to enter his vehicle, pointed a gun at him and demanded he empty his pockets. Robinson turned and faced petitioner, saw petitioner's gun pointed at his (Robinson's) chest, and told petitioner and his associate that he did not have any money. Petitioner repeated his demand. Petitioner's cohort instructed Robinson not to run. Robinson, fearing for his life, took his wallet from his pants pocket, threw it on the ground toward petitioner and his cohort, and told them they could take his wallet. Petitioner and his associate looked at the wallet and walked away. (Doc. 34, Ex. A, p. 8 (probable cause affidavit); see also Ex. C, pp. 31-64 (Robinson's trial testimony)).1
Petitioner was charged in Leon County Circuit Court Case No. 2010-CF-1349, with attempted armed robbery with a firearm, in violation of Sections 777.04, 775.087 and 812.13(2)(a), Florida Statutes. (Ex. A, p. 6). The State filed a notice of intent to seek petitioner's enhanced sentencing under Florida's Prison Releasee Reoffender (PRR) Act, asserting that the charged offense occurred within three yearsof petitioner's release from the Florida Department of Corrections' custody on February 21, 2009, and that the pending charge was a qualifying offense or a felony involving the use or threat of physical force or violence against an individual under Section 775.082(9), Florida Statutes. (Ex. A, p. 17).
A jury trial was held on October 28, 2010, which ended in a mistrial after a jury deadlock. (See Ex. A, p. 62 (order noting same)). Petitioner was re-tried on January 24, 2011. (Exs. C, D (trial transcript)). The jury found petitioner guilty as charged and also found that he actually possessed a firearm during commission of the offense. (Ex. A, p. 103-04; Ex. D, pp. 299-300). Petitioner was sentenced to 15 years in prison and adjudicated a PRR, which means he must serve 100 percent of his sentence. (Ex. A, pp. 141-42 (sentencing transcript); Ex. A, pp. 105-113 (judgment)).
On direct appeal, petitioner's appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and In re Anders Briefs, 581 So. 2d 149 (Fla. 1991). Counsel asserted she was unable to make a good faith argument that reversible error occurred in the trial court, with the exception of the trial court's improper imposition of a fine, a surcharge, an administrative fee and cost of prosecution. (Ex. H (Anders brief); see also Ex. F (motion to correct sentencing errors)). Petitioner filed a pro se brief raising three issues: the trial court erred in denying his motion for judgment of acquittal; the trial court erred in denying his motion for mistrial, and the trial court erred in imposing certain costs. (Ex. I). On July 3, 2012, the Florida First District Court of Appeal (First DCA) affirmed petitioner's judgment and sentence, but struck one cost. McCarthan v. State, 91 So. 3d 268 (Fla. 1st DCA 2012) (copy at Ex. M). The mandate issued July 31, 2012. (Ex. M). An amended judgment striking the improper cost was entered August 3, 2012. (Ex. N).
On August 14, 2012, petitioner filed a pro se motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800(c). (Ex. O). The state circuit court denied the motion on August 20, 2012. (Id.). The order was not appealable. See Mitchell v. State, 719 So. 2d 1258 (Fla. 1st DCA 1998) (); Edwards v. State, 53 So. 3d 1131 (Fla. 1st DCA 2011) ().
Also in August 2012, petitioner filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which he later amended. (Ex. P, pp. 1-54 (amended Rule 3.850 motion)). Petitioner's amended Rule 3.850 motion raised eight grounds for relief: (1) ineffective assistance of trial counsel (Grounds A, D, E, F, G, H); (2) insufficient evidence (Ground B); and prosecutorial misconduct (Ground C). The state circuit court granted an evidentiary hearing and appointed postconviction counsel. (Ex. P, pp. 136, 153; Ex. Q (transcript of hearing and exhibits)). At the conclusion of the hearing, the court denied relief, stating its reasons on the record. (Ex. Q, pp. 265-75). A written order followed. (Ex. P, p. 154). Petitioner was appointed counsel on appeal. (Ex, P. pp. 164-65). The First DCA affirmed per curiam without opinion. McCarthan v. State, 163 So. 3d 1185 (Fla. 1st DCA 2015) (Table) (copy at Ex. T). The mandate issued June 8, 2015. (Ex. T).
While his Rule 3.580 proceeding was pending, petitioner filed a pro se petition for writ of habeas corpus in the First DCA on December 4, 2013, alleging ineffective assistance of direct appeal counsel. (Ex. U). The First DCA denied the petition on the merits. McCarthan v. State, 133 So. 3d 536 (Fla. 1st DCA 2014) (copy at Ex. V). Rehearing was denied on January 30, 2014. (Ex. W).
On July 12, 2015, petitioner filed another pro se petition for writ of habeas corpus in the First DCA alleging ineffective assistance of direct appeal counsel. (Ex. X). The First DCA denied the petition on the merits on August 6, 2015. McCarthan v. State, 171 So. 3d 215 (Fla. 1st DCA 2015) (copy at Ex. Y).
Petitioner filed his federal habeas petition on August 12, 2015. (Doc. 1, p. 1). The petition raises five grounds for relief including one claim of ineffective assistance of trial counsel, one claim of prosecutorial misconduct, and three claims of trial court error. Respondent argues that each claim fails for one or more of the following reasons: (1) the claim is procedurally defaulted, (2) the claim is without merit. (Doc. 34).
Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all available state court remedies for challenging his conviction, 28 U.S.C. § 2254(b)(1), thereby giving the State the "'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. See Boerckel, 526 U.S. at 839-40, 848; Hittson v. GDCP Warden, 759 F.3d 1210, 1260 n.56 (11th Cir. 2014) .
A claim is also considered procedurally defaulted if it was presented to the state court but rejected on the independent and adequate state ground of procedural bar or default. See Maples v. Thomas, 565 U.S. 266, 280, 132 S. Ct. 912, 181 L. Ed. 2d 807 (2012) ; Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001) (). The adequacy of a state procedural bar to the assertion of a federal question is itself a federal question. See Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 151 L. Ed. 2d 820 (2002). The adequacy requirement has been interpreted to mean that the state rule must be "firmly established and regularly followed," Siebert v. Allen, 455 F.3d 1269, 1271 (11th Cir. 2006), that is, not applied in an "arbitrary or unprecedented fashion," Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001), or in a manifestly unfair manner. Ford v. Georgia, 498 U.S. 411, 424-25, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991); Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995).
A petitioner seeking to overcome a procedural default must "demonstrate cause for the default and actual prejudice as...
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