Mycoff v. Florida

• Decision Date: 21 September 2011
• Docket Number: Case No. 2:08-cv-664-FtM-29DNF
• Parties: JAMES E. MYCOFF,Petitioner, v. STATE OF FLORIDA and FLORIDA ATTORNEY GENERAL, Respondents.
• Court: U.S. District Court — Middle District of Florida

JAMES E. MYCOFF,Petitioner,

v.STATE OF FLORIDA and FLORIDA ATTORNEY GENERAL, Respondents.

Case No. 2:08-cv-664-FtM-29DNF

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

Dated: September 21, 2011

OPINION AND ORDER

Petitioner James E. MyCoff¹ initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 26, 2008,² challenging his state court judgment of conviction entered in the Twentieth Judicial Circuit in Lee County Florida (case number 97-2799-CF) for manslaughter and robbery with a weapon on June 11, 1999. Petition at 1. The Petition sets forth the following grounds for relief.

Ground 1

Trial Court erred by denying Petitioner's motion for judgment of acquittal on the robbery count because there was insufficient evidence.

Ground 2

Trial court erred by not including in the jury instruction the "after thought" defense to the robbery.

Ground 3

Trial Court erred by limiting cross-examination of a key State witness, improper impeachment by allowing the State to ask Petitioner about working with defense counsel, and improperly limited Petitioner's testimony to not allow him to testify about specifics of his prior convictions.

Ground 4

Ineffective assistance of appellate counsel on direct appeal for failing to file a reply brief, failing to timely move for rehearing, for failing to distinguish certain State cases, and for failing to raise the federal dimension of grounds 1, 2, and 3 above.

Ground 5

Trial court erred by admitting Petitioner's pre-trial statements given to police in violation of Miranda.

Ground 6

Petitioner's conviction violates double jeopardy because he was convicted of two counts of manslaughter when there was only one victim.

Ground 7

Petitioner's conviction is unconstitutional based on newly discovered evidence concerning a biased juror who tainted the jury.

Ground 8

Petitioner's conviction is unconstitutional because he is "actually innocent."

Ground 9

Trial court erred by not making a proper finding under Fla. Stat. § 775.084 (5) dealing with habitualization.

See Petition. Respondent filed a Response (Doc. #9) in opposition to the Petition on June 23, 2009, and filed exhibits (Doc. #10, Exhs. 1-14) consisting of some of the trial court and post-conviction records. Petitioner filed a Reply (Doc. #19, Reply) on October 9, 2009. The Court directed Respondent to file a supplemental Response because, inter alia, the Response contained sparse citations to the record. Respondent filed a supplement response (Doc. #21, Response) on August 15, 2011. Petitioner then filed an "Amended Reply" (Doc. #22) on August 26, 2011.³

This Court has carefully reviewed the record and, for the reasons set forth below, concludes no evidentiary proceedings are required in this Court. Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 1939-40 (2007). Petitioner does not proffer any evidence that would require an evidentiary hearing, Chandler v. McDonough, 471 F.3d 1360 (11th Cir. 2006), and the Court finds that the pertinent facts of the case are fully developed in the record before the Court. Schriro, 550 U.S. at 474; Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004). This matter is ripe for review.

I. Procedural History

A. Charges and Trial

Petitioner was charged with first-degree premeditated murder (count I), first-degree felony murder (count II), and robbery witha deadly weapon (count III). Petitioner proceeded to a jury trial on April 12 through April 16, 1999. On April 16, 1999, the jury found Petitioner guilty of the lesser-included offenses of manslaughter (count I) and robbery (count III). Exh. 14, Vol. III at 1458; Exh. 14, Vol. XI at 1582 (docket sheet). The trial court merged counts one and two, and on June 11, 1999, sentenced Petitioner to thirty-years in prison as a habitual felony offender on count one and a concurrent thirty-year sentence on count three. Exh. 14, Vol. I at 4-5; Exh. 14, Vol. XI at 1586. Petitioner, through counsel, moved for a new trial. Exh. 14, Vol II at 61-64. The trial court denied the motion for new trial. Id. at 65.

B. Direct Appeal and Relevant Post-Conviction Motions

1. Direct Appeal

Petitioner, through counsel, filed a direct appeal raising the following five claims:

(1) Trial court erred in limiting cross examination of State witness, Jeff Charron;

(2) Trial court erred in permitting improper impeachment of Defendant;

(3) Trial court erred in denying motion to suppress Defendant's pre-trial statements given to police after Defendant invoked his right to counsel;

(4) Trial court erred in denying Defendant's motion for judgment of acquittal on the robbery charge; and,

(5) Trial court erred in denying Defendant's requested jury instruction on the issue of "after thought" as to the robbery charge.

Exh. 14, Vol. II at 156. The State filed a brief in response. Exh. 2. Petitioner, through counsel, filed a supplemental brief raising another ground of trial court error:

(6) Trial court erred in refusing to permit Defendant to testify about the nature of his prior convictions.

Exh. 3. The State filed a supplemental answer brief. Exh. 4. On July 28, 2000, the appellate court per curiam affirmed the trial court's decisions and mandate issued thereafter. Exh. 5, Exh. 6.

2. Rule 3.800 Motion

Petitioner, proceeding pro se, filed a Rule 3.800 Motion claiming his sentence as a habitual felony offender violated "fundamental due process of the 14th Amendment, due to invalid statute § 775.084 [sic] in violation of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000)."⁴ Exh. 14, Vol. II at 83-94; Petition at 3; see also Exh. 14, Vol. I at 12-13 (subsequent post-conviction motion discussing prior motions). The post-conviction court denied Petitioner relief on November 29, 2000. Exh. 14, Vol. II at 95-97; Petition at 3. Petitioner appealed the adverse decision and the appellate court affirmed the post-conviction court's decision onJanuary 31, 2001. Response at 3; Petition at 3; Mycoff v. State, 791 So. 2d 472 (Fla. 2d DCA 2001)[table].

3. First Rule 3.850 Motion

Petitioner, proceeding pro se, filed his first Rule 3.850 Motion on April 2, 2001, raising fifteen grounds for relief.⁵ Exh. 14, Vol. II at 98-108 (copy of Rule 3.850 Motion); Petition at 3; Response at 3. On April 9, 2001, the post-conviction court denied Petitioner relief on all claims. Exh. 14, Vol. II at 109-116 (copy of order denying Rule 3.850 motion); see also Petition at 5-12; Exh. 12, Appx. C (copy of post-conviction court's order of denial). Petitioner appealed the adverse decision, and the appellate court per curiam affirmed the post-conviction court's decision on April 30, 2003. Petition at 4; Mycoff v. State, 853 So. 2d 420 (Fla. 2d DCA 2003)[table].

4. State Petition for Writ of Habeas Corpus⁶

On December 29, 2002, Petitioner filed a state petition for writ of habeas corpus alleging ineffective assistance of appellate counsel.⁷ Petition at 13; see also Exh. 14, Vol. I at 13 (referencing prior post-conviction motions). The appellate court summarily dismissed the petition on February 24, 2003. Id.

5. Second Rule 3.850 Motion

Petitioner, proceeding pro se, filed a second Rule 3.850 Motion on September 3, 2003, raising, inter alia, claims of newly discovered evidence. Exh. 14, Vol. I at 12-21 (post-conviction motion); Petition at 14; Response at 4 (citing Exh. 7). The State filed a response pursuant to the post-conviction court's orders. Exh. 14, Vol. II at 50-53. The post-conviction court summarily dismissed grounds 1(c), 1(d) and 4, and noted that grounds 2 and 3 were identical to ground 1 and did not warrant separate consideration. Exh. 14, Vol. VIII at 1458. The post-conviction court appointed Petitioner counsel, and directed an evidentiaryhearing on his newly discovered evidence claims raised in grounds 1(a), 1(b), and 1(e). Exh. 11 (evidentiary hearing).

On August 24, 2004, the post-conviction court held an evidentiary hearing at which Patricia and Joseph Battaglia testified. Exh. 14, Vol. VIII at 1488. Upon the conclusion of the evidentiary hearing, on July 27, 2005, the post-conviction court entered an order denying Petitioner relief on all claims. Exh. 14, Vol. VIII at 1458-1464 (order). Petitioner moved for rehearing. Exh. 14, Vol. IX at 1532. On August 22, 2005, the post-conviction court denied Petitioner's motion for rehearing. Exh. 14, Vol IX at 1543.

Petitioner appealed the post-conviction court's denial concerning Petitioner's newly discovered evidence claim, summary denial of grounds 2 and 3, and ground 4. Exh. 12. The State filed an answer brief in response. See Exh. 7. The appellate court apparently per curiam affirmed.

6. Second Rule 3.800 Motion

On August 30, 2006, Petitioner filed another Rule 3.800(a) motion to correct an illegal sentence on the basis that the State failed to prove that Petitioner had two separate felony convictions required to qualify Petitioner as a habitual felony offender. Petition at 16-17. The State filed a response. Id. at 16. On May 25, 2007, the post-conviction court entered an order denying Petitioner's Rule 3.800(a) Motion, citing to all of thePetitioner's prior felony convictions. Id. at 16-17. Petitioner appealed the adverse ruling and the appellate court per curiam affirmed on May 21, 2008. Petition at 19.

7. Third Rule 3.850 Motion

On July 9, 2008, Petitioner filed a third Rule 3.850 alleging that his conviction violated Double Jeopardy because he was convicted of two counts of manslaughter. Petition at 21. By order entered July 21, 2008, the post-conviction court denied Petitioner relief finding the Motion was untimely under two-year time limitation set forth in Fla. R. Crim. P. 3.850(b) and successive because Petitioner raised the identical claim in his April 2, 2001 Rule 3.850 Motion. Id. at 21-22.

II. Applicable § 2254 Law

On August 26, 2008, Petitioner filed the instant federal Petition. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat....