Moline v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 25 September 2012
• Docket Number: Case No. 3:09-cv-687-J-34JBT
• Citation: Moline v. Sec'y, Fla. Dep't of Corr., Case No. 3:09-cv-687-J-34JBT (M.D. Fla. Sep 25, 2012)
• Parties: ROGER CARL MOLINE, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

ROGER CARL MOLINE, Petitioner,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:09-cv-687-J-34JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

Dated: September 25, 2012

ORDER

I. Status

Petitioner Moline initiated this action by filing a pro se Petition for Writ of Habeas Corpus (Petition) (Doc. #1) and Memorandum of Law in Support of the Petition (Memorandum) (Doc. #2) under 28 U.S.C. § 2254 on July 20, 2009, pursuant to the mailbox rule. He challenges a 1996 state court (Clay County, Florida) judgment of conviction for impersonating a law enforcement officer and two counts of grand theft. Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Response to Habeas Petition (Response) (Doc. #16); Exhibits (Resp. Ex.) (Doc. #18). On October 5, 2009, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. #8), admonishing Petitionerregarding his obligations and giving Petitioner a time frame in which to submit a reply. Petitioner submitted a brief in reply on October 27, 2011. See Petitioner's Amended Reply to Respondents' Response to Habeas Corpus (Reply) (Doc. #21). This case is ripe for review.

II. Procedural History

On October 20, 1995, the State of Florida charged Moline with impersonating a law enforcement officer during the commission of a felony and two counts of grand theft. Resp. Ex. B at 6-7, Information; 46-47, Amended Information. After jury selection, Moline proceeded to a jury trial. Resp. Ex. C, Transcript of the Jury Trial (Tr.). At the conclusion of the trial, a jury found Moline guilty of the charges. Resp. Ex. B at 75-77, Verdicts; Tr. at 171-72. On April 11, 1996, the trial court sentenced Moline, as a habitual felony offender, to life imprisonment for impersonating a law enforcement officer, ten years of imprisonment for count two, and ten years of imprisonment for count three, with counts two and three to run concurrently to count one. Resp. Ex. B at 111-18, Judgment; Resp. Ex. D at 41-63, Transcript of Sentencing Proceeding (Sentencing Tr.).

On appeal, Petitioner, through counsel, filed an Initial Brief, arguing that the trial court erred in admitting evidence of collateral crimes, which the State was unable to prove by clear and convincing evidence (ground one); the trial court erred in denyingPetitioner's pretrial motion in limine (ground two); the trial court erred in admitting State's exhibit 5 (a copy of Petitioner's driver's license) into evidence (ground three); and the cumulative effect of the trial court's errors deprived Petitioner of a fair trial (ground four). Resp. Ex. E. The State filed an Answer Brief, and Petitioner filed a Reply Brief. Resp. Exs. F; G. On April 23, 1998, the appellate court affirmed Petitioner's conviction and sentence per curiam without issuing a written opinion. Moline v. State, 718 So.2d 177 (Fla. 1st DCA 1998); Resp. Ex. H. The court denied Petitioner's motion for rehearing on June 5, 1998. Resp. Ex. I. The mandate issued on June 23, 1998.¹ Petitioner did not seek review in the United States Supreme Court.

On June 23, 2000, Petitioner filed a pro se petition for writ of habeas corpus, arguing that appellate counsel was ineffective because he failed to raise the following issues on direct appeal: the trial court erred in denying Petitioner's motion for discharge when counsel adopted the expiration of speedy trial time limits of Petitioner's pro se motion (ground one); the trial court erred in allowing the State to "doctor up" its incomplete notices of Williams Rule evidence (ground two); the trial court violated Petitioner's constitutional rights when he was denied the right to participate in several conferences, including pretrial meetingsbetween lawyers and the judge, side bars, and chamber conferences during jury selection (ground three); the trial court abused its discretion when it failed to excuse for cause Joanna Weigel and Rena Roberts (ground four); the trial court failed to permit any voir dire examination of prospective jurors by counsel, collectively or individually in exercise of peremptory challenges, thus allowing two biased jurors to be seated on the jury panel (ground five); and the trial court erred in sentencing Petitioner as a habitual offender when the statute under which he was convicted did not provide for habitualization. Resp. Ex. J. The State responded. Resp. Ex. K. On May 11, 2001, the appellate court denied the petition on the merits. Moline v. State, 818 So.2d 504 (Fla. 1st DCA 2001); Resp. Ex. L. The court denied Petitioner's motion for rehearing on June 29, 2001.² Resp. Ex. M.

On June 23, 2000, Petitioner filed a pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. N at 1-68. In his request for post conviction relief (Rule 3.850 motion), Petitioner alleged that his counsel was ineffective because he failed to: call potential alibi witnesses (ground one); ensure that the State met its burden in qualifying Petitioner as a habitual felony offender (ground two); call a handwriting expert to declare the signature on the motel registrya forgery (ground three); challenge jurors Joanne Weigel and Rona Roberts (ground four); move to suppress or object to the victim's in-court identification as impermissibly suggestive (ground six); introduce exculpatory evidence, such as the victim's canceled checks, the bank's video, and the fingerprint results (ground seven); object to the trial court's closure of the courtroom to the public throughout the trial (ground eight); move to suppress when the State delivered the second supplemental response to the demand for discovery, request a Richardson³ inquiry, and challenge the custodian of the motel records and the Florida Department of Law Enforcement analyst's testimony (ground nine); object to or move to dismiss the defective charging information (ground ten); and object to or move to suppress the State's introduction of exhibits A and G (ground eleven). Id. Additionally, Petitioner asserted that the trial court erred when the court: excluded Petitioner from several pretrial conferences (ground five); denied Petitioner's motion for discharge of speedy trial rights (ground twelve); and refused to excuse for cause the biased jurors (ground thirteen). Id.

In amending the motion on July 25, 2000, Petitioner added three claims, asserting that counsel was ineffective because he failed to: move to suppress or object to the State's introduction of collateral crimes evidence (Amended Rule 3.850 motion, ground thirteen); call Deputy Michael Seymour as a witness (Amended Rule3.850 motion, ground fourteen); and move for a mistrial or object to the prosecutor's prejudicial statements during opening and closing arguments (Amended Rule 3.850 motion, ground fifteen). Id. at 78-79. The State responded, see id. at 182-84, and Petitioner replied, see id. at 189-93. The court held an evidentiary hearing on November 13, 2002. Id. at 509-88, Transcript of the Evidentiary Hearing (EH Tr.). On March 18, 2003, in partially granting the motions, the trial court vacated Petitioner's habitual felony offender classification and sentence, as to count one, and stated that Petitioner would be resentenced; the remaining portions of the motion were denied. Id. at 482-98.

On April 16, 2003, the court resentenced Moline, on count one, to thirty years of imprisonment. Resp. Ex. N at 894-913, Transcript of the Resentencing Proceeding (Resentencing Tr.). To justify the upward departure from the sentencing guidelines, the court found: the victim was especially vulnerable due to his advanced age and that Petitioner is not amenable to rehabilitation or supervision, as evidenced by his criminal record spanning over forty years and the escalating pattern of criminal conduct. Id. at 797-99, Judgment and Sentence as to Count One.

Petitioner appealed the denial of his Rule 3.850 motions and filed a brief. Resp. Ex. O. The State filed a notice that it did not intend to file an answer brief. Resp. Ex. P. On May 28, 2004, the appellate court affirmed the trial court's decision per curiam.Moline v. State, 876 So.2d 564 (Fla. 1st DCA 2004); Resp. Ex. Q. The court denied Petitioner's motion for rehearing on July 9, 2004, see Resp. Exs. R; S, and the mandate issued on July 27, 2004, see Resp. Ex. T.

On January 24, 2005, Petitioner filed a pro se Rule 3.800 motion, challenging the legality of the sentence and asserting that the April 16, 2003 departure sentence exceeded the limits provided by law because the reasons for the court's upward departure were not presented to a jury and proven beyond a reasonable doubt. Resp. Ex. U at 1-6. In denying the motion on February 8, 2005, the trial court concluded: "The justification of the Court's departure from the sentencing guidelines is fair and appropriate . . . ." Id. at 7-30. The trial court denied Petitioner's motion for rehearing on May 6, 2005. Id. at 31-39, 40.

On Petitioner's appeal, the appellate court, on March 3, 2006, reversed the trial court's summary denial of Moline's motion and remanded the case to the trial court to conduct an evidentiary hearing or to refute Moline's claim with record attachments. Moline v. State, 983 So.2d 1 (Fla. 1st DCA 2006) (per curiam); Resp. Ex. Y. When the State filed for discretionary review, see Resp. Ex. Z, the Florida Supreme Court, on April 6, 2006, stayed Petitioner's case pending the final disposition of Galindez v. State, 910 So.2d 284 (Fla. 3rd DCA 2005). Resp. Ex. AA.Ultimately, the Florida Supreme Court decided Galindez on harmless error grounds. See Galindez v. State, 955 So.2d 517 (Fla. 2007).

On February 21, 2008, the Florida Supreme Court quashed the appellate court's March 3, 2006 decision in Petitioner's case and remanded the case to the appellate court for application of a harmless error analysis based upon Galindez. Moline v. State, 976 So.2d 576 (Fla. 2008); Resp. Ex. BB. Finding...