Morris v. Buss
| Decision Date | 07 March 2011 |
| Docket Number | Case No. 3:08cv223/RV/EMT. |
| Parties | Brian A. MORRIS, Petitioner,v.Edwin G. BUSS,1 Respondent. |
| Court | U.S. District Court — Northern District of Florida |
OPINION TEXT STARTS HERE
Brian A. Morris, Crestview, FL, pro se.
This cause comes on for consideration upon the magistrate judge's Report and Recommendation dated February 3, 2011 (Doc. 25). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de novo determination of all timely filed objections.
Having considered the Report and Recommendation, and any timely filed objections thereto timely filed, I have determined that the Report and Recommendation should be adopted.
Accordingly, it is now ORDERED as follows:
1. The magistrate judge's Report and Recommendation is adopted and incorporated by reference in this order.
2. The petition for writ of habeas corpus (Doc. 1) is DENIED.
3. A certificate of appealability is DENIED.
This cause is before the court on Petitioner's petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (Doc. 1). Respondent filed an answer and relevant portions of the state court record (Doc. 13). Petitioner filed a reply (Doc. 20).
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 of all issues raised by Petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief.
The relevant aspects of the procedural background of this case are undisputed and established by the state court record ( see Doc. 13, Exhibits).2 On September 3, 1991, Petitioner was charged in the Circuit Court for Okaloosa County, Florida, Case No. 91–1351, with one count of grand theft, a third degree felony (Ex. F at 14–15). On January 24, 1992, Petitioner entered a conditional plea agreement pursuant to which he agreed to enter a plea of nolo contendere to the charge, as well as the charges in Case No. 91–1095, Case No. 91–1121, and Case No. 91–1352, on the condition that the court sentence him as a habitual felony offender (“HFO”) to total term of incarceration of twenty (20) years or less (although the parties agreed that the State would recommend an HFO sentence of thirty (30) years) ( id. at 23–24). The court accepted Petitioner's plea on January 27, 1992 ( id. at 163–66). On March 17, 1992, the trial court adjudicated Petitioner guilty and sentenced him as a HFO in Case No. 91–1351 to ten (10) years of imprisonment, with pre-sentence credit of 210 days, to run concurrently with the twenty-year HFO sentence imposed in Case No. 91–1095 ( id. at 114–19, 140–51, 167–72). Petitioner's total term of incarceration in Cases 91–1095, 91–1121, 91–1351, and 91–1352 did not exceed twenty (20) years ( id. at 40–148, 167–72).
Petitioner, through counsel, appealed the judgments in all four cases to the Florida First District Court of Appeal (“First DCA”) (Ex. F at 156, 161–62). On March 5, 1993, the First DCA affirmed the judgments per curiam without written opinion, with the mandate issuing March 23, 1993 (Exs. G, H). Morris v. State, 615 So.2d 161 (Fla. 1st DCA 1993) (Table). Petitioner did not seek further review.
On February 12, 2007, Petitioner filed a motion to correct illegal sentence, pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure (Ex. J at 1–3). In an order rendered August 3, 2007, the trial court granted the motion in part ( id. at 15–18). That same day, Petitioner filed an amended Rule 3.800(a) motion ( id. at 53–56). On August 8, 2007, he filed a motion for reconsideration, wherein he sought reconsideration of the court's August 3 order ( id. at 62–64). On August 14, 2007, the trial court denied Petitioner's amended Rule 3.800(a) motion ( id. at 69–70), and on August 15, 2007, the court denied Petitioner's motion for reconsideration ( id. at 72–77). On August 22, 2007, Petitioner filed a motion to correct sentencing error, pursuant to Rule 3.800(b) of the Florida Rules of Criminal Procedure, contending that the court erred by granting his Rule 3.800(a) motion in part and directing the clerk of court to enter an Amended Judgment and Sentence in Case No. 91–1351 without his presence or representation by counsel ( id. at 78–81). The trial court summarily denied the Rule 3.800(b) motion in an order rendered September 4, 2007 ( id. at 84–93). Petitioner appealed the decision to the First DCA ( id. at 98, Ex. K). On April 17, 2008, the First DCA affirmed per curiam without written opinion, with the mandate issuing May 13, 2008 (Exs. I, M). Morris v. State, 980 So.2d 494 (Fla. 1st DCA 2008) (Table).
Petitioner filed the instant federal habeas action on May 28, 2008 (Doc. 1). Respondent concedes that the petition is timely (Doc. 13 at 8–9).
Section 2254(a) of Title 28 provides that “a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” upon a showing that his custody is in violation of the Constitution or laws of the United States. As the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for habeas review of state court decisions under § 2254 as brought about by the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104–132, § 104, 110 Stat. 1214, 1218–19. In relevant part, section 2254(d) now provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C.A. § 2254 (2002).
The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). 3 The appropriate test was described by Justice O'Connor as follows:
In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied—the state court adjudication resulted in a decision that (1) “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id., 529 U.S. at 412–13, 120 S.Ct. 1495 (O'Connor, J., concurring); Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 2119–20, 147 L.Ed.2d 125 (2000). In employing this test, the Supreme Court has instructed that on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a formal State court proceeding, the federal court should first ascertain the “clearly established Federal law,” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The law is “clearly established” if Supreme Court precedent at the time “would have compelled a particular result in the case.” Neelley v. Nagle, 138 F.3d 917, 923 (11th Cir.1998), overruled on other grounds by Parker v. Head, 244 F.3d 831, 835 (11th Cir.2001).
Next, the court must determine whether the State court adjudication is contrary to the clearly established Supreme Court case law, either because “ ‘the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or because ‘the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.’ ” Lockyer, 538 U.S. at 73, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 405–06, 120 S.Ct. 1495). The Supreme Court has clarified that “[a]voiding these pitfalls does not require citation to our cases—indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002) (quoting Williams, 529 U.S. at 405–06, 120 S.Ct. 1495). If the State court decision is found in either respect to be contrary, the district court must independently consider the...
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