Montgomery v. Sec'y Of The Fla. Dep't Of Corr.
| Decision Date | 15 March 2011 |
| Docket Number | Case No. 3:07-cv-1014-J-34MCR |
| Parties | AMOS MONTGOMERY, Petitioner, v. SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS,1et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner Amos Montgomery, who is proceeding pro se and in forma pauperis, initiated this action by filing a Petition for Writ of Habeas Corpus (Petition) (Doc. #1) under 28 U.S.C. § 2254 on October 23, 2007, pursuant to the mailbox rule. Petitioner challenges a 2001 state court (Duval County, Florida) judgment of conviction for dealing in stolen property, asserting that his defense counsel was ineffective because he: (1) failed to object to the admission of the pawn shop slip; (2) conceded Petitioner's guilt without his consent; (3) failed to (a) elicit, on directexamination, that Petitioner had prior felony convictions resulting from guilty pleas, (b) request a limiting jury instruction to cure the prosecutor's impeachment of Petitioner on cross-examination, and (c) rehabilitate Petitioner, on redirect examination, with the fact that his prior convictions were the result of guilty pleas; (4) failed to request a jury instruction on petit theft, as a lesser included offense of dealing in stolen property; (5) with respect to the erroneous admission of prejudicial characterizations, counsel (a) failed to object, failed to file a motion in limine, failed to file a motion for mistrial, and failed to preserve the issue for appellate review, and (b) utilized prejudicial characterizations; (6) failed to object, move for a mistrial, and preserve for appellate review the erroneous admission of testimony and improper questioning by the prosecutor; and (7) failed to preserve for appellate review the issue of the prosecutor's improper comments during opening and closing arguments. Additionally, Petitioner contends that the cumulative effect of counsel's errors in grounds one through seven combined to create constitutionally deficient and prejudicially ineffective assistance of counsel.
Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Answer to Petition for Writ of Habeas Corpus (Response) (Doc. #32).2 On March 21, 2008, the Courtentered an Order to Show Cause and Notice to Petitioner (Doc. #11), admonishing Petitioner regarding his obligations and giving Petitioner a time frame in which to submit a reply. Petitioner submitted a brief in reply on January 28, 2011. See Petitioner's Amended Reply to Respondents' Response to § 2254 Petition (Reply) (Doc. #44). This case is ripe for review.
On May 2, 2001, Petitioner Montgomery was charged with armed burglary (count one); dealing in stolen property (count two); and burglary of a dwelling (count three). Resp. Ex. A, Information. Defense counsel filed a motion to dismiss count one, see Resp. Ex. B, which the State opposed. Resp. Exs. C; D. The court denied the motion to dismiss on September 6, 2001. Resp. Ex. E.
On September 14, 2001, Petitioner entered a plea of guilty to count three. Resp. Ex. F. Thereafter, Petitioner filed a motion to sever counts one and two for trial, Resp. Ex. G, and the court denied the motion on September 28, 2001. Resp. Ex. H. After jury selection, Petitioner proceeded to a jury trial on October 1, 2001. Resp. Ex. I, Transcript of the Jury Trial Proceedings (Tr.). At the conclusion of the trial, a jury found Petitioner not guilty on the burglary charge (count one) and guilty, as charged in the Information, of dealing in stolen property (count two). Resp. Ex. J, Verdicts. The court denied Petitioner's motion for new trial. Resp. Exs. K; L; N at 229-30. On October 23, 2001, the trial courtsentenced Petitioner, as a habitual felony offender, for both offenses (counts two and three) to concurrent terms of twenty-five years of incarceration. Resp. Exs. M; N.
On appeal, Petitioner, through counsel, filed an Initial Brief, raising the following claims: (1) the trial court erred in denying his motions for judgment of acquittal; (2) the trial court committed fundamental error in instructing the jury that possession of recently stolen property gives rise to an inference that the Defendant knew the property was stolen because that instruction constitutes an unconstitutional mandatory rebuttable presumption; and (3) the trial court committed fundamental error in instructing the jury on the inference arising from unexplained possession of recently stolen property because the instruction constitutes an impermissible comment on the evidence; and (4) the trial court erred in denying his motion to preclude imposition of a habitual offender sentence. Resp. Ex. O. The State filed an Answer Brief. Resp. Ex. P. On October 28, 2002, the appellate court affirmed Petitioner's conviction and sentence per curiam without issuing a written opinion. Montgomery v. State, 831 So.2d 182 (Fla. 1st DCA 2002); Resp. Ex. Q. The mandate issued on November 13, 2002. Resp. Ex. R. Petitioner did not seek review in the United States Supreme Court.
On March 2, 2003, Petitioner filed his pro se motion to correct illegal sentence pursuant to Florida Rule of CriminalProcedure 3.800(a), arguing that his habitual offender sentence is illegal because he did not have a qualifying predicate offense within five years of the commission of the instant offenses. Resp. Ex. S. The trial court denied the Rule 3.800 motion on October 21, 2003. Resp. Ex. T. On April 14, 2004, the appellate court affirmed Petitioner's sentence per curiam without issuing a written opinion. Montgomery v. State, 871 So.2d 881 (Fla. 1st DCA 2004); Resp. Ex. U. The mandate issued on May 11, 2004. Resp. Ex. V.
Petitioner filed a pro se petition for writ of mandamus in the appellate court on February 7, 2005. In his petition, Montgomery contended that he had filed a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in the circuit court on June 3, 2004, and requested that the court issue a writ compelling the trial court to rule on that motion. Resp. Ex. W. In support of his petition, he attached a copy of his Rule 3.850 motion, which contains a certificate of service, dated June 3, 2004. Id., Appendix A. The appellate court, on February 23, 2005, issued an order directing the State to determine the status of the post conviction proceedings and file a status report. Resp. Ex. X.
On or about March 21, 2005, the State filed a status report, stating that it had contacted the clerk of the circuit court and ascertained that the circuit court had not taken any action on Petitioner's motion for post conviction relief because it had no record of the motion having been filed. Resp. Ex. Y. The Stateattached to the status report a copy of the circuit court's docket sheet, reflecting that a Rule 3.850 motion had not been filed. Id. On March 29, 2005, the appellate court entered an order directing Petitioner to show cause why the petition for writ of mandamus should not be denied in light of the fact that the circuit court's docket did not reflect the filing of the June 3, 2004 motion for post conviction relief. Resp. Ex. Z.
Petitioner responded to the show cause order on April 7, 2005. In his response, Petitioner conceded that the petition for writ of mandamus must be denied if the trial court failed to receive the Rule 3.850 motion, but asserted that the denial of the petition for writ of mandamus should be without prejudice to his sending another copy of the Rule 3.850 motion to the trial court since the Rule 3.850 motion had been previously mailed to the trial court. Resp. Ex. AA. The appellate court denied the petition for writ of mandamus on April 15, 2005. Resp. Ex. BB.
Petitioner, on May 11, 2006, wrote a letter to the circuit court, stating that he had filed a Rule 3.850 motion in that court on June 3, 2004. Resp. Ex. CC. In support of his contention, Petitioner attached a copy of his June 3, 2004 Rule 3.850 motion. Id. In response to Petitioner's letter, the circuit judge entered a document, entitled "Acknowledgment of Receipt of Copy of Motion for Post-Conviction Relief, " informing Petitioner that the court had never received any original of the Rule 3.850 motion, nor anyother motion filed by Petitioner pursuant to Rule 3.850, sworn by Petitioner under penalties of perjury through his original signature. Resp. Ex. DD.
On July 10, 2006, Petitioner filed a Rule 3.850 motion in the circuit court, raising eight ineffectiveness claims. Resp. Ex. EE. The circuit court denied the Rule 3.850 motion. In doing so, the court acknowledged that the motion was filed on July 10, 2006, but that an earlier Rule 3.850 motion had been filed May 15, 2006, but was not signed under penalties of perjury. Resp. Ex. FF. Since Petitioner conceded that he "had accidentally forwarded an unsigned copy of the motion in May[,]" the court concluded that it would construe the Rule 3.850 motion as having been filed on May 15, 2006. Id. Nevertheless, still finding the Rule 3.850 motion to be untimely, the court stated in pertinent part:
The Court has absolutely no record of having received a motion for post-conviction relief from the Defendant at any other time. The Defendant did file a motion to correct illegal sentence on March 6, 2003, and that motion was denied by an Order of October 21, 2003, herein. It also appears that the Defendant did at some time during 2005 file a petition for writ of mandamus with the First District Court of Appeal, asking that court to issue a writ requiring this court to rule on a motion for post-conviction relief earlier filed herein. Such resulted in a status report to the First District Court of Appeal, dated March 23, 2005, which informed the appellate court and the Defendant that there was no record herein of the filing of a motion for post-conviction relief. (Copy attached).
The conviction of the Defendant herein became final on November 13, 2002, with the issuing of the District Court's [m]...
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