Norris v. Jones

• Decision Date: 01 December 2016
• Docket Number: Case No. 4:14cv222-MW/CAS
• Parties: CURTIS L. NORRIS, Petitioner, v. JULIE L. JONES, Secretary, Florida Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Florida

CURTIS L. NORRIS, Petitioner, v. JULIE L. JONES, Secretary, Florida Department of Corrections,¹ Respondent.

Case No. 4:14cv222-MW/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

December 1, 2016

REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

On April 30, 2014, Petitioner Curtis L. Norris, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On that same date, Petitioner filed a motion to hold petition in abeyance until the claim presented in Ground 2 was exhausted in state court. ECF No. 2. By order entered July 21, 2014, this Court denied the motion and directed the Respondent to file an answer, motion, or other response to the amended § 2254 petition. ECF No. 8. Respondent filed an answer onMarch 25, 2015. ECF No. 15. Although afforded an opportunity, Petitioner did not file a reply.

The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this § 2254 petition should be denied.

Background and Procedural History

By Information filed June 20, 2007, in case number 07-490CFA in the Second Judicial Circuit, Gadsden County, Florida, Petitioner was charged with the second-degree murder of Billy Williams by infliction of head trauma on or about December 25, 2006, in violation of section 782.04(2), Florida Statutes. Ex. A at 1 (ECF No. 15-1 at 13).² Petitioner and the victim were incarcerated at the time of the incident in the River Junction Work Campcorrectional facility in Gadsden County. The Public Defender was initially appointed to represent Petitioner but on December 6, 2007, Zachary Ward was appointed as conflict counsel. Ex. A at 37 (ECF No. 15-1 at 49).

Jury trial was held May 26-27, 2009, at which Petitioner testified. Ex. D, E (ECF No. 15-2 at 21; ECF No. 15-3 at 1). The jury found him guilty of the lesser offense of felony battery, a third-degree felony, in violation of section 784.041, Florida Statutes. Ex. B at 89 (ECF No. 15-1 at 105; ECF No. 15-3 at 103). Judgment was entered on May 28, 2009. Ex. B at 91 (ECF No. 15-1 at 106). Petitioner was sentenced to ten years in prison, with the first five years to be served as a prison releasee reoffender pursuant to section 775.082, Florida Statutes, with the sentence being consecutive to a sentence Petitioner was already serving. Ex. B at 92-96 (ECF No. 15-1 at 108-112). Petitioner was also declared to be a Habitual Felony Offender under the provisions of section 775.084, Florida Statutes. Ex. B at 100 (ECF No. 15-1 at 116). No credit for time served was awarded.

Petitioner appealed to the state First District Court of Appeal, Ex. B at 102, but prior to filing an initial brief, Petitioner filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) on April 8, 2010, challenging the lack of a presentence Investigation report. Ex. G (ECF No. 15-4 at 59-61). The trial court granted the motion to correct sentencing error, Ex. G at 141 (ECF No. 15-4 at 67), and ordered a presentence investigation report. The resentencing hearing was held July 22, 2010. Ex. J (ECF No. 15-4 at 202 through ECF No. 15-5 at 1-34). The trial court resentenced Petitioner to the same prison terms as he was previously sentenced, although fees and fines were waived. Ex. G at 147 (ECF No. 15-4 at 69-78). After resentencing pursuant to the motion to correct sentencing error, Petitioner's appointed appellate counsel filed an Anders brief on December 7, 2010.³ Ex. K (ECF No. 15-5 at 37). Petitioner filed a motion to allow a pro se brief, ECF No. 15-5 at 49, and leave was given but no pro se brief was filed. The appellate court affirmed per curiam without opinion on April 7, 2011. Ex. L at 1 (ECF No. 15-5 at 52). The mandate was issued on May 3, 2011. Ex. L at 3 (ECF No. 15-5 at 54). See Norris v. State, 58 So. 3d 264 (Fla. 1st DCA 2011) (table).

On July 25, 2011, Petitioner filed another motion to correct illegal sentence, arguing that the trial court failed to grant credit for time served. Ex. M (ECF No. 15-5 at 58). The trial court denied the motion on thegrounds that his sentence was consecutive to a prison sentence Petitioner was already serving. ECF No. 15-5 at 66. Petitioner, proceeding pro se, appealed this ruling, ECF No. 15-5 at 67, and the appellate court affirmed per curiam without opinion on February 22, 2012. Ex. O (ECF No. 15-5 at 84). See Norris v. State, 88 So. 3d 938 (Fla. 1st DCA 2011) (table).

On October 14, 2011, Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging four grounds.⁴ Ex. Q (ECF No. 15-5 at 128-137). An evidentiary hearing was held on claim 2—that trial counsel was ineffective in requesting that the jury be instructed on the lesser offense of felony battery. Ex. R; EXF No. 15-5 at 140-57. The motion for post-conviction relief was denied on February 13, 2013, ECF No. 15-5 at 110, and Petitioner's motion for rehearing was denied on March 13, 2013. ECF No. 15-5 at 119.

Petitioner appealed, raising as error the post-conviction court's denial of relief on his claim that trial counsel was ineffective in requesting a juryinstruction on felony battery, which contradicted the defense of self-defense and resulted in conviction of a crime not charged. Ex. S (ECF No. 15-5 at 159-170). The State filed an answer brief, Ex. T (ECF No. 15-5 at 173). Petitioner filed a reply brief, Ex. U (ECF NO. 15-5 at 195), and the state district court affirmed per curiam without opinion on February 6, 2014. Ex. V (ECF No. 15-6 at 8). The mandate was issued on March 4, 2014. Ex. V at 3 (ECF No. 15-6 at 10). See Norris v. State, 132 So. 3d 228 (Fla. 1st DCA 2014) (table).

Petitioner filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 30, 2014. ECF No. 1. He raises three grounds for relief:

(1) Trial counsel was ineffective in in requesting the jury be instructed on the lesser offense of felony battery which conflicted with the defense of self-defense.

(2) Petitioner was denied due process when he was sentenced as a prison release reoffender (PRR) because his conviction is not an enumerated offense for the PRR sentence enhancement, in violation of the due process clause.

(3) Petitioner was denied due process when he was wrongfully convicted of felony battery when the statute or elements were not listed or contained within the charging Information.

Analysis

Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody. Section 2254(d) provides, in pertinent part:

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. § 2254(d). See, e.g., Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011). "This is a 'difficult to meet' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.' " Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 563 U.S. at 181.

"[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions," and "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). See also Swarthout v. Cooke, 562 U.S. 216, 222 (2011) ("[W]e have long recognized that 'a "mere error of state law" is not a denial of due process.' " (quoting Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982))).

Where federal claims are properly raised in a habeas proceeding, "[b]efore a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Title 28 U.S.C. § 2254(b). In order for remedies to be exhausted, "the petitioner must have given the state courts a 'meaningful opportunity' to address his federal claim." Preston v. Secretary, Florida Dep't of Corr., 785 F.3d 449, 457 (11th Cir. 2015) (quoting McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005)). The petitioner must have apprised the state court of the federal constitutional claim, not just the underlying facts of the claim or a "somewhat similar state-law claim." Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (quoting Anderson v. Harless, 459 U.S. 4, 5-6 (1982)). Where a claim is unexhausted and, thus, procedurally defaulted, in order to obtain review, the petitioner must show cause for the default and prejudice resulting therefrom or a fundamental miscarriage of justice. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993). In order to...