Milledge v. Sec'y, CASE NO. 4:14-cv-295-MW-GRJ
| Decision Date | 16 March 2017 |
| Docket Number | CASE NO. 4:14-cv-295-MW-GRJ |
| Parties | COREY MILLEDGE, Petitioner, v. SECRETARY, DEP'T OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
This case is before the Court on ECF No. 1, Petitioner's pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Petition stems from Petitioner's Gadsden County jury conviction for felony battery on a DCF employee, for which he was sentenced to 10 years' imprisonment. The Petition asserts three grounds of ineffective assistance of trial counsel and one ground of ineffective assistance of appellate counsel. (ECF No. 1.) Respondent filed a response and appendix with relevant portions of the state-court record, arguing that the Petition should be denied because his claims are unexhausted, procedurally defaulted, state law issues not cognizable on habeas review, and without merit. (ECF No. 15.) Petitioner has filed a reply, (ECF No. 20), and the Petition is therefore ripe for review. Upon due consideration of the Petition, the response, the state-court record, and the reply, the undersigned recommends that the Petition be denied.1
Petitioner was charged in case number 07-00029CFA with one count of aggravated battery on a specified employee, in violation of Fla. Stat. § 784.081. (ECF No. 16-1 at 49, 52.)2 Prior to trial, the State offered Petitioner a plea deal for three years' imprisonment and two years of probation. (ECF No. 16-2 at 101.) The State subsequently offered Petitioner an omnibus plea deal encompassing the instant case as well as two other pending cases of battery on an inmate for a term of just under ten years' imprisonment. (Id. at 101-03.) Trial counsel, Zachary M. Ward, advised Petitioner that if he thought he was going to lose that it was in his best interest to take the omnibus plea offer. (Id. at 103.) Petitioner, however, declined the plea offer and proceeded to trial. (Id. at 108.)
On July 30, 2008, Petitioner was convicted of the lesser-included crime of felony battery on a specified employee, Brenda Galloway—an employee of the Department of Children and Family Services. (ECF No. 1 at 90-91.) Petitioner was sentenced to fifteen years' imprisonment with 183 days as jail time credit. (Id. at 94-99.)
On January 30, 2009, Petitioner's appellate counsel, James C. Banks, filed an Anders Brief. (ECF No. 16-1 at 413-24) Mr. Banks stated that "[d]espite a thorough reading of the record on appeal and review of the law on arguable points, the undersigned appellate counsel can find no meritorious argument to support the contention that the trial court committed significant reversible error in this case." (Id. at 420.) In addition, Mr. Banks represented that he "contacted Appellant's trial counsel, Zachary Ward, and he agreed that there are no meritorious issues to be raised in this appeal." (Id.) On February 19, 2009, the First DCA informed Petitioner of his opportunity to file a pro se appellate brief. (Id. at 426.) Petitioner subsequently filed his initial appellate brief on August 13, 2009. (Id. at 427-37) On appeal, Petitioner argued that the trial court erred in failing to conduct a competency hearing. (Id.) On April 5, 2010, however, the First DCA per curiam affirmed without written opinion. (Id. at 439-40.)
In the meantime, on March 12, 2009, Petitioner filed a pro se 3.800(b)(2) motion to correct sentencing error. (ECF No. 16-1 at 118-20.) Petitioner argued that he was convicted of felony battery, a third degree felony, but that the third degree felony was impermissibly reclassified to a second degree felony, resulting in his 15 year sentence. (Id.) The State agreed that Petitioner should be re-sentenced because he was convicted of a third degree felony, not a second degree felony. (ECF No. 16-1 at 123.) The State also represented that it would be seeking a sentence pursuant to Fla. Stat. § 785.084(1)(b), Habitual Violent Felony Offender, upon re-sentencing. (Id.) Subsequently, on March 24, 2009, the State filed a Notice of Intent to Seek Enhanced Penalty as Habitual Violent Felony Offender based on the instant conviction and a prior conviction for aggravated battery. (ECF No. 16-1 at 125.)
On October 28, 2010, Petitioner filed a motion for postconviction relief pursuant to Fla. R. Crim. P. 3.850, presenting fourteen claims of ineffective assistance of trial counsel. (ECF No. 16-2 at 347-54; ECF No. 16-3 at 1-37) The circuit court held an evidentiary hearing pertaining to Petitioner's 3.850 motion and a re-sentencing hearing on Petitioner's 3.800 motion. (ECF No. 16-3 at 257-88; ECF No. 16-4 at 1-85.) At the end of the hearing, the court re-sentenced Petitioner to ten years' imprisonment as a habitual violent felony offender. (ECF No. 16-4 at 78.)3 Then on January 6, 2012, the trial court denied Petitioner's motion for postconviction relief on the merits. (ECF No. 16-5 at 29-38.) Petitioner filed a notice of appeal on January 13, 2012, but the First DCA per curiam affirmed without written opinion. (Id. at 39-40, 252.)
Next, Petitioner filed a state petition for writ of habeas corpus pursuant to Fla. R. App. P. 9.141, asserting three grounds of ineffective assistance of appellate counsel. (ECF No. 16-1 at 442-56; ECF No. 16-2 at 1-16). Petitioner subsequently filed an amended petition for writ of habeas corpus alleging ineffective assistance of appellate counsel on February 8, 2012. (ECF No. 16-2 at 52-65.) The sole ground for relief in his amended petition was that appellate counsel was ineffective for failing to timely raise on appeal that the trial court erred in instructing the jury on the non-existent offense of felony battery on a DCF employee. (Id.) The First DCA, however, per curiam denied Petitioner's petition for ineffectiveassistance of appellate counsel on April 26, 2012. (ECF No. 16-2 at 313.)
After being re-sentenced, Petitioner filed a notice of appeal to the First DCA on August 17, 2011. (ECF No. 16-3 at 133-34.) Then on May 16, 2012, he filed another state petition for writ of habeas corpus in which he again argued that appellate counsel was ineffective for failing to argue on direct appeal that the trial court erred in instructing the jury on the lesser-included offense of felony battery by actually and intentionally touching or striking the victim against her will because Petitioner was not charged with such in the information. (ECF No. 16-4 at 110-34.) The First DCA per curiam denied the petition without written opinion. (Id. at 162.)
On May 24, 2012, Petitioner filed a motion for postconviction relief pursuant to Fla. R. Crim. P. 3.850. (ECF No. 16-5 at 260-277) Petitioner presented two grounds of ineffective assistance of counsel, claiming that: (1) counsel for re-sentencing, Robert Morris, failed to move for a competency evaluation at re-sentencing; and (2) trial counsel Mr. Ward failed to timely object to the trial court's jury instruction on felony battery. (Id.) On May 31, 2012, however, the trial court denied Petitioner's motion as successive, untimely, and frivolous. (Id. at 301-02.) Petitioner filed a notice of appeal on June 6, 2012. (Id. at 304.) The First DCA per curiam affirmed without written opinion on November 29, 2012. (ECF No. 16-6 at 13-14.)
In the meantime, on June 1, 2012, Petitioner filed yet another state petition for writ of habeas corpus, alleging that he is being illegally detained because the trial court erred in instructing the jury on the lesser-included offense of felony battery by actually and intentionally touching the victim against her will because Petitioner was not charged with such in the information. (ECF No. 16-6 at 18-36.) He subsequently filed a motion to supplement in which he reasserted the same claim. (Id. at 67-75.) On August 3, 2012, the circuit court denied all pending claims for relief. (Id. at 81-82.) Petitioner filed a notice of appeal on August 22, 2012. (Id. at 87.) The First DCA dismissed the appeal, however, for failing to respond to the Court's order requiring Petitioner to file his initial brief. (Id. at 91.) 1D12-4723
On January 4, 2013, Petitioner filed a 3.800 Motion to Correct Sentencing Error During Pending Appeal, in which he requested a corrected sentencing order listing the offense as a third degree felony and stating that as a habitual violent felony offender, a minimum term of five years must be served prior to release. (ECF No. 16-3 at 146-50.) The circuit court granted the motion on March 3, 2013, and ordered the clerk to amend the final judgment accordingly. (ECF No. 16-3 at 175-84.)
Approximately one month later, Petitioner filed another 3.800 Motion to Correct Sentencing Error During Pending Appeal, in which he argued that the Court erred in finding Petitioner to be a habitual violent felony offender and sentencing him as such. (ECF No. 16-3 at 188-92.) He argued that the status was based on an alleged previous conviction for aggravated battery, when in actuality, Petitioner had been charged with battery and the charge was ultimately dropped. (Id.)
Eventually, on April 15, 2014, the First DCA per curiam affirmed Petitioner's post-re-sentence appeal without written opinion. (ECF No. 16-4 at 107-08.) Petitioner subsequently filed the instant petition for writ of habeas corpus on June 12, 2014. (ECF No. 1.)
The role of a federal habeas court when reviewing a state prisoner's application pursuant to 28 U.S.C. § 2254 is limited. Williams v. Taylor, 529 U.S. 362, 403-04 (2000). Under section 2254(a), federal courts "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
Additionally, federal...
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