Nolan v. Sec'y, Case No: 5:14-cv-118-Oc-10PRL

• Court: U.S. District Court — Middle District of Florida
• Decision Date: 05 July 2016
• Docket Number: Case No: 5:14-cv-118-Oc-10PRL
• Citation: Nolan v. Sec'y, Dep't of Corr., Case No: 5:14-cv-118-Oc-10PRL (M.D. Fla. Jul 05, 2016)
• Parties: KENYON NOLAN, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS and FLORIDA ATTORNEY GENERAL, Respondents.

KENYON NOLAN, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONSand FLORIDA ATTORNEY GENERAL, Respondents.

Case No: 5:14-cv-118-Oc-10PRL

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

July 5, 2016

OPINION AND ORDER

This matter comes before the Court upon a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Kenyon Nolan ("Petitioner"), a prisoner of the Florida Department of Corrections (Doc. 1, filed February 24, 2014). Petitioner, proceeding pro se, attacks the convictions and sentences entered against him by the Fifth Judicial Circuit Court in Lake County, Florida for trafficking in methamphetamine, manufacture of methamphetamine, conspiracy to manufacture methamphetamine, possession of a listed chemical, and grand theft auto. Id. Respondents filed a response to the amended petition (Doc. 9). Petitioner filed a reply (Doc. 11), and the case is now ripe for review.

Petitioner raises three claims and four sub-claims in his petition. For clarity, the Court will number and address each claim separately. Petitioner asserts that: (1) defense counsel ("Counsel") was ineffective for failing to present video evidence at the suppression hearing; (2) Counsel was ineffective for failing to call witnesses at the suppression hearing; (3) the transcript of the suppression hearing is incorrect; (4) Counsel was ineffective for failing to impeach Detective Reed with his prior inconsistent testimony; (5) Counsel was ineffective for failing to seek suppression of the methamphetamine seized from his residence on the basis of an unreliable chain of custody; (6) Counsel was ineffective for failing to object to a vindictive sentence; and (7) Counsel's cumulative errors resulted in the denial of his suppression motion (Doc. 1 at 3-7).

Upon due consideration of the pleadings and the state court record, the Court concludes that each claim must be dismissed or denied. Because the petition may be resolved on the basis of the record, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the factual allegations in the petition or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).

I. Background and Procedural History¹

On February 9, 2009, Petitioner pleaded guilty to the manufacture of methamphetamine, in violation of Florida Statutes §§ 893.13(1)(a)(1) and 893.03(2)(c)(4), possession of a listed chemical, in violation of Florida Statute § 893.149, and grand theft (App. A at 6, 17-20). He was sentenced to three years of drug offender probation. Id. at 23.

On April 22, 2009, the State of Florida issued an affidavit for violation of probation charging inter alia that Petitioner had failed to live and remain at liberty without violating the law (App. A at 35). Specifically, the affidavit attested that Petitioner was involved in manufacturing methamphetamine, possessed a controlled substance without a prescription, trafficked in more than 400 grams of methamphetamine, and possessedchemicals to manufacture methamphetamine. Id. On May 13, 2009, based upon the same behavior, Petitioner was charged by information with trafficking in over 200 grams of methamphetamine, in violation of Florida Statute §§ 893.135(1)(f) and 893.03(2)(c) (count one), manufacture of methamphetamine, in violation of Florida Statute §§ 893.13(1)(a)(1) and 893.03(2)(c)(4) (count two), conspiracy to manufacture methamphetamine, in violation of Florida Statute §§ 893.13(1)(a)(1), 893.03(2)(c)(4) and 777.04(3) (count three), and possession of a listed chemical, in violation of Florida Statute § 893.149 (count four). Id. at 96-97.

On July 31, 2009, Petitioner filed a motion to suppress the evidence of the drug-making apparatus taken from Petitioner's home on the basis that the apparatus was not in plain sight as the police alleged (App. A at 50). After conducting a suppression hearing (App. B), the trial court denied the motion to suppress. Id. at 117-22.

On October 20 and 29, 2009, a violation of probation ("VOP") hearing was held (App. C). After the hearing, the trial court sentenced Petitioner to a total of twenty years in prison. Id. at 164. On October 29, 2009, Petitioner pleaded guilty to the new charges, and received a total of fifteen years in prison, to be served concurrently with his previous sentence (App. A at 128).

Petitioner appealed the denial of his motion to suppress (App. D). A per curiam affirmance was entered (App. F), and Petitioner then filed a state habeas petition alleging ineffective assistance of appellate counsel (App. G). Florida's Fifth District Court of Appeal denied the petition (App. I). Thereafter, Petitioner filed a motion pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 motion") (App. J). The post-conviction court denied the motion (App. M). Florida's Fifth District Court of Appealaffirmed in all respects except for the alleged failure of Counsel to communicate a plea offer from the state (App. P). The case was remanded for an evidentiary hearing. Id. On December 28, 2012, an evidentiary hearing was held on this issue, after which the claim was denied on the ground that no plea offer had been made (App. Q on 117-27). Florida's Fifth District Court of Appeal per curiam affirmed (App. T).

Petitioner filed the instant petition on February 24, 2014 (Doc. 1).

II. Governing Legal Principles

A. Standard of Review

Pursuant to 28 U.S.C. §§ 2254(d)(1) and (2), federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court 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.

This standard is both mandatory and difficult to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably, a state court's violation of state law is not sufficient to show that a petitioner is in custody in violation of the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).

"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). That said, the Supreme Court has also explained that "the lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since 'a general standard' from [the Supreme Court's] cases can supply such law." Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). State courts "must reasonably apply the rules 'squarely established' by [the Supreme] Court's holdings to the facts of each case. White, 134 S. Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).

Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was "contrary to, or an unreasonable application of," that federal law. 28 U.S.C. § 2254(d)(1). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or "if the state court either unreasonably extends a legal principle from[Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). Moreover, "it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court." Knowles, 556 U.S. at 122.

Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct[,]" and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding") (dictum); Burt v. Titlow, 134 S. Ct. 10, 15-16 (2013) (same).

B. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme...