Mulligan v. Sec'y
| Decision Date | 13 February 2019 |
| Docket Number | Case No. 3:16-cv-1006-J-34JBT |
| Parties | KHALASE LE'TAVIAN MULLIGAN, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner Khalase Mulligan, an inmate of the Florida penal system, initiated this action on August 1, 2016,1 by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1) in the Northern District of Florida. On August 4, 2016, the Northern District of Florida transferred the Petition to this Court. Doc. 3. Mulligan is now proceeding on an amended petition (Amended Petition; Doc. 10). In the Amended Petition, Mulligan challenges a 2009 state court (Duval County, Florida) judgment of conviction for possession of a firearm by a convicted felon. Mulligan raises five grounds for relief. See Amended Petition at 4-12.2 Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Motion to Dismiss Grounds Three and Four of Amended Petition for Writ of Habeas Corpus as Untimely and Answer to Grounds One, Two and Five of Amended Petition (Resp.; Doc. 26) with exhibits (Resp. Ex.).Mulligan submitted a brief in reply on August 16, 2018. See Reply to Answer to Petition (Reply; Doc. 44). This case is ripe for review.
On April 17, 2009, the State of Florida (State) charged Mulligan by way of an amended information with one count of possession of a firearm by a convicted felon. Resp. Ex. A at 20. Mulligan proceeded to a jury trial, at the conclusion of which the jury found him guilty as charged, with a specific finding that Mulligan actually possessed a firearm. Id. at 50. On July 23, 2009, the circuit court adjudicated Mulligan to be a habitual felony offender and sentenced him to a term of incarceration of twenty years in prison, with a three-year minimum mandatory. Id. at 54-59.
Mulligan appealed the judgment of conviction and sentence to Florida's First District Court of Appeal. Id. at 75. Mulligan's appellate counsel filed an Anders3 brief, Resp. Ex. F, which prompted Mulligan to file a pro se initial brief raising one issue on appeal: there was insufficient evidence to establish actual or constructive possession of a firearm. Resp. Ex. G. The State did not file an answer brief. On October 29, 2010, the First DCA per curiam affirmed the judgment and sentence without a written opinion. Resp. Ex. H. Mulligan filed a pro se motion for rehearing, Resp. Ex. I, which the First DCA denied on January 14, 2011. Resp. Ex. J. The First DCA issued the Mandate on February 1, 2011. Resp. Ex. K.
On July 26, 2011, Mulligan filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. L at 1-19. Mulligan raised the following claims of ineffective assistance of counsel in his Rule 3.850Motion, counsel: inadequately argued a motion for judgment of acquittal (ground one); failed to argue the traffic stop was a result of racial profiling (ground two); failed to request a scienter jury instruction (ground three); failed to request a jury instruction on the knowledge element of possession of a firearm by a convicted felon (ground four); failed to object to the circuit court's response to a jury question (ground five); and failed to advise him of his speedy trial rights (ground six). Id.
On January 9, 2014, Mulligan filed an amended motion for postconviction relief (Amended Rule 3.850 Motion), in which he reasserted grounds one through six of his Rule 3.850 Motion and added the following claims: counsel failed to object when the prosecutor violated the circuit court's ruling on a defense motion in limine (ground seven); counsel failed to object to testimony from witnesses that violated the circuit court's ruling on a defense motion in limine (ground eight); the circuit court erred in denying his motion for judgment of acquittal (ground nine); and the circuit court erred in not granting his motion for new trial (ground ten). Id. at 20-57. On October 2, 2014, the circuit court dismissed as facially insufficient Mulligan's Amended Rule 3.850 Motion and gave him leave to amend. Resp. Ex. M. In response, Mulligan filed another Rule 3.850 motion (Second Amended Rule 3.850 Motion) on November 25, 2014, which raised the following claims: counsel failed to request a Nelson4 and Faretta5 hearing (ground one); counsel failed to impeach a witness (ground two); counsel failed to impeach a witness (ground three); and counsel failed to object to improper closing arguments (ground four). Resp. Ex. L at 58-77.
On April 28, 2015, the circuit court struck as unauthorized Mulligan's Second Amended Rule 3.850 Motion and denied on the merits the Rule 3.850 Motion. Id. at 82-95. On November 3, 2015, the First DCA per curiam affirmed the circuit court's order without a written opinion. Resp. Ex. P. Mulligan filed a motion for rehearing on November 18, 2015, Resp. Ex. Q, which the First DCA denied on December 17, 2015. Resp. Ex. R. The First DCA issued the Mandate on January 5, 2016. Resp. Ex. S. Mulligan sought review in the Florida Supreme Court, Resp. Ex. T., but the Florida Supreme Court dismissed the petition for review for lack of jurisdiction. Resp. Ex. U.
The original Petition was timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d). However, Respondents contend that two claims raised in the Amended Petition, Grounds Three and Four, that were not raised in the original Petition do not relate back to the original claims and are untimely. Resp. at 16-22. The Court will address the timeliness of Grounds Three and Four below.
In a habeas corpus proceeding, the burden is on the petitioner to establish the need for a federal evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). "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, 474 (2007); Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017). "It follows that if the record refutes the applicant's factual allegations or otherwiseprecludes habeas relief, a district court is not required to hold an evidentiary hearing." Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record before the Court. Because the Court can "adequately assess [Mulligan's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be conducted.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a state prisoner's federal petition for habeas corpus. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S. Ct. 1432 (2017). "'The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.'" Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of final state court decisions is "'greatly circumscribed' and 'highly deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the last state court decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion explaining its rationale in order for the state court's decision to qualify as an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court's adjudication on the merits is unaccompanied by an explanation, the United States Supreme Court recently stated:
[T]he federal court should "look through" the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by showing that the higher state court's adjudication most likely relied on different grounds than the lower state court's reasoned decision, such as persuasive alternative grounds that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at 1192, 1196.
If the claim was "adjudicated on the merits" in state court, § 2254(d) bars relitigation of the claim unless the state court's decision (1) "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) "was 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); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited scope of federal review pursuant to § 2254 as follows:
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