McClinton v. McNeil
| Decision Date | 19 September 2008 |
| Docket Number | Case No. 3:05-cv-1305-32TEM. |
| Parties | Edward McCLINTON, Petitioner, v. Walter A. McNEIL,<SMALL><SUP>1</SUP></SMALL> et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Edward McClinton, Miami, FL, pro se.
Carmen F. Corrente, Office of the Attorney General, Daytona Beach, FL, for Respondents.
Petitioner Edward McClinton, an inmate of the Florida penal system proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus (hereinafter Petition) (Doc. # 1) pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2001 state court (Orange County, Florida) judgment of conviction (for which he received a thirty year sentence) for possession of a firearm by a convicted felon on the following grounds: (1) the trial court erred in denying his motion for judgment of acquittal because the State failed to introduce the firearm's magazine and thereby failed to prove the firearm was operable; (2) ineffective assistance of trial counsel for failure to file a motion to suppress the firearm based on a lack of probable cause for the stop of the car; (3) ineffective assistance of trial counsel for failure to raise the issue that the State's evidence failed to establish constructive or actual possession of a firearm by a convicted felon; (4) ineffective assistance of trial counsel for counsel's failure to timely object to Petitioner's being found to be a habitual offender; (5) ineffective assistance of appellate counsel for failure to raise the following issue on direct appeal: it was fundamental error for the State to have failed to establish the element of Petitioner's knowledge that the gun was in the car; and, (6) ineffective assistance of appellate counsel for failure to raise the following issue on direct appeal: the trial court committed fundamental error by omitting the word "knowingly" from the jury instruction.
Respondents filed a Response to Petition (Doc. # 5) (hereinafter Response) with exhibits in support of their Response.3 Petitioner was instructed on how to properly respond, and he has responded. See Court's Order (Doc. # 7); Petitioner's Reply to Response (hereinafter Reply) (Doc. # 12); Petitioner's Appendix (Doc. # 13). The Court Ordered Respondents to file a supplemental response addressing the merits of ground six of the petition and Respondents have done so. See Court's Order (Doc. # 18); Respondents' Supplemental Response (Doc. # 25) (hereinafter Supplemental Response). Petitioner subsequently filed an Objection to Motion to Continue. (Doc. # 26). This case is now ripe for review.
In an Information, Petitioner was charged with possession of a firearm by a convicted felon (count one) and possession of twenty grams or less of cannabis (marijuana) (count two). Ex. A, Information, filed June 29, 1998. The Information was later amended changing the predicate felony for the firearm possession charge. Ex. B, Amended Information, filed April 14, 1999. On April 14, 1999, the State filed a Notice of Intention to Seek Enhanced Punishment based on Petitioner's being a habitual offender. Ex. C.
On November 8, 1999, Petitioner was tried by a jury. The jury found Petitioner guilty of possession of a firearm by a convicted felon (count one), as charged, and possession of marijuana (count two), as charged. Ex. E, Verdicts. The trial court adjudicated Petitioner guilty of both charges. Ex. G. The State presented Petitioner's prior record through judgments and sentencing documents. Ex. H. Petitioner was thereafter sentenced to thirty years of incarceration as a habitual felony offender for possession of a firearm by a convicted felon and received 109 days of jail credit for 109 days served for the possession of marijuana. Ex. I; Ex. J.
On appeal, Petitioner's appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ex. L. On April 9, 2002, the appellate court per curiam affirmed without issuing a written opinion. McClinton v. State, 814 So.2d 1062 (Fla. 5th DCA 2002); Ex. M. The mandate was issued on April 26, 2002. Ex. N.
On or about November 13, 2002, Petitioner filed a pro se motion for post conviction relief pursuant to Fla. R.Crim. P. 3.850, raising the following claims: (1) counsel was ineffective for failure to raise the issue that the arrest and seizure were without probable cause; (2) counsel was ineffective for failure to raise the issue that the State's evidence failed to establish constructive or actual possession of the firearm by a convicted felon; and, (3) counsel was ineffective for failure to raise the issue that the habitualization procedure was improper and therefore constitutes an illegal sentence. Ex. O. On November 25, 2003, the court denied the motion for post conviction relief. Ex. P.
On appeal, Petitioner filed a pro se brief, raising the following claim: whether the trial court's failure to support its adverse ruling with record excerpts refuting Petitioner's second claim (concerning the State's failure to present a prima facie case) was an abuse of discretion warranting a reversal. Ex. R. On March 9, 2004, the appellate court per curiam affirmed without issuing a written opinion. McClinton v. State, 871 So.2d 896 (Fla. 5th DCA 2004); Ex. S. On or about March 17 2004, Petitioner filed a motion for rehearing. Ex. T. On April 16, 2004, the court denied the motion for rehearing. Ex. U. The mandate was issued on May 5, 2004. Ex. V.
On or about February 12, 2004, Petitioner filed a petition for writ of habeas corpus in the appellate court in which he claims ineffective assistance of appellate counsel for failure to raise on direct appeal the issues of lack of evidence of Petitioner's knowledge of the existence of the firearm and failure to raise the trial court's omission of the word "knowingly" from the oral instructions given to the jury on the issue of possession of a firearm. Ex. W. The State responded that the claims were without merit. Ex. X. Petitioner filed a reply. Ex. Y. On May 11, 2004, the appellate court, without opinion, denied the petition on the merits with prejudice. Ex. Z. Petitioner filed a motion for rehearing, which was denied on June 23, 2004. Ex. AA; Ex. BB.
Petitioner's Petition in this Court is timely filed within the one-year period of limitations. See 28 U.S.C. § 2244(d); Response at 5-6.
"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citation omitted). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id.
This Court has carefully reviewed the record and concludes Petitioner is not entitled to an evidentiary hearing. The pertinent facts of the case are fully developed in the record before the Court. Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999). Thus, the Court can "adequately assess [Petitioner's] claim[s] without further factual development." Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034, 124 S.Ct. 2104, 158 L.Ed.2d 718 (2004). Therefore, an evidentiary hearing will not be conducted by this Court.
Since this action was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (hereinafter AEDPA), April 24, 1996, the Court will analyze Petitioner's claims under 28 U.S.C. § 2254(d), AEDPA. Nelson v. Alabama, 292 F.3d 1291, 1294-95 (11th Cir.2002), cert. denied, 538 U.S. 926, 123 S.Ct. 1573, 155 L.Ed.2d 319 (2003); Fugate v. Head, 261 F.3d 1206, 1215 n. 10 (11th Cir.2001), cert. denied, 535 U.S. 1104, 122 S.Ct. 2310, 152 L.Ed.2d 1065 (2002); Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir.1998), cert. denied, 531 U.S. 840, 121 S.Ct. 103, 148 L.Ed.2d 62 (2000). Under AEDPA, however, the review Stewart v. Sec'y, Dep't of Corr., 476 F.3d 1193, 1208 (11th Cir.2007).
The Eleventh Circuit has explained this deferential review:
[Section] 2254(d) allows federal habeas relief for a claim adjudicated on the merits in state court only if the state court adjudication resulted in a decision that was: "(1) ... contrary to, or involved an unreasonable[4] application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) ... based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Marquard [v. Sec'y for Dep't of Corr.], 429 F.3d [1278] at 1303 [11th Cir.2005]. The phrase "clearly established Federal law," as used in § 2254(d)(1), encompasses only the holdings, as opposed to the dicta, of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)); Osborne v. Terry, 466 F.3d 1298, 1305 (11th Cir.2006).
Schriro, 127 S.Ct. at 1939-40 (footnote omitted). "This presumption of correctness applies equally to factual determinations made by state trial and...
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