Parker v. Sec'y, Fla. Dep't of Corr., Case No. 3:09-cv-1203-J-34JRK

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtMARCIA MORALES HOWARD
PartiesGERRY LEE PARKER, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
Decision Date09 January 2013
Docket NumberCase No. 3:09-cv-1203-J-34JRK

GERRY LEE PARKER, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:09-cv-1203-J-34JRK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

Date: January 9, 2013


ORDER

I. Status

Petitioner Gerry Lee Parker initiated this action by filing a pro se Petition for Writ of Habeas Corpus (Doc. #1) with exhibits (Pet. Ex.) under 28 U.S.C. § 2254 on December 10, 2009. Petitioner filed an Amended Petition (Doc. #5) on February 25, 2010. Now proceeding on his Second Amended Petition (Doc. #24), filed March 18, 2011, Petitioner challenges a 1997 state court (Duval County, Florida) judgment of conviction for robbery with a weapon. Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Answer in Response to Order to Show

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Cause and Second Amended Petition for Writ of Habeas Corpus and Motion to Dismiss Second Amended Petition's Ground 9 as Untimely (Response) (Doc. #29) with exhibits (Resp. Ex.) (Doc. #14). On May 14, 2010, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. #8), admonishing Petitioner regarding his obligations and giving Petitioner a time frame in which to submit a reply. Petitioner submitted a brief in reply on November 30, 2011. See Petitioner's Reply to Respondents' Response to the Order Issued by This Court on March 28, 2011 (Reply) (Doc. #33). In compliance with the Court's Order (Doc. #35), filed June 8, 2012, Respondents filed a supplemental response, and Petitioner replied. See Respondents' Answer to Ground 9 of Second Amended Petition (Doc. #36) (Supplemental Response), filed June 13, 2012; Petitioner's Reply to Respondents' Answer to Ground 9 (Doc. #37), filed August 13, 2012. This case is ripe for review.

II. Procedural History

On May 8, 1997, the State of Florida charged Gerry Parker with armed robbery with a firearm. Res. Ex. C at 7-8, Information. After jury selection, Parker proceeded to trial. Resp. Ex. D, Transcript of the Jury Trial (Tr.). At the conclusion of the trial, a jury found Parker guilty of robbery with a weapon. Resp. Ex. C at 44, Verdict; Tr. at 250. On August 1, 1997, the trial court sentenced Parker, as a violent career criminal, to a term of life imprisonment. Resp. Ex. C at 70-79, Judgment. On September

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12, 2000, the court entered a corrected judgment and resentenced Parker, as a habitual felony offender, to a term of thirty-five (35) years of imprisonment. Resp. Ex. W at 93-98.

On appeal, Parker, through counsel, filed an Initial Brief, arguing that the trial court erred by failing to sustain his objections to impermissibly suggestive out-of-court identification procedures where those procedures tainted the victim's memory, and where the totality of the circumstances did not support such identification, thereby denying Parker due process of law, as guaranteed by the United States Constitution and the Constitution of the state of Florida. Resp. Ex. E. The State filed an Answer Brief. Resp. Ex. F. On December 3, 1998, the appellate court affirmed Parker's conviction and sentence per curiam without issuing a written opinion, see Parker v. State, 727 So.2d 918 (Fla. 1st DCA 1998); Resp. Ex. G, and the mandate issued on December 21, 1998, see Resp. Ex. H. Parker did not seek review in the United States Supreme Court.

On March 30, 1999, Parker filed his first pro se petition for writ of habeas corpus, asserting that appellate counsel was ineffective because she failed to raise the following issues on direct appeal: (1) the trial court erred in admitting the firearm into evidence; (2) the trial court erroneously allowed the evidence technician, a lay witness, to conduct an in-court demonstration and testify that the firing pin was in working order; (3) the

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prosecutor, during closing arguments, misstated the law and the duty of the jury; (4) the trial judge sentenced Petitioner pursuant to an unconstitutional provision of Florida Statutes section 775.084; and (5) the trial judge erred when he denied the deliberating jury's request to read a witness's testimony without allowing defense counsel to argue the issue or object to his decision. Resp. Exs. I; J. On May 3, 1999, the appellate court denied the petition on the merits. Parker v. State, 740 So.2d 534 (Fla. 1st DCA 1999); Resp. Ex. K. The court, on June 24, 1999, denied Parker's motion for certification. Resp. Exs. L; M.

On September 3, 1999, Parker filed a pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. O at 1-22. He subsequently amended the motion on October 12, 1999, January 31, 2000, February 29, 2000, and June 19, 2000. Resp. Ex. O Supp. 1-117. In his requests for post conviction relief (Rule 3.850 motion), Parker asserted that the trial court erred by improperly instructing the jury concerning the lesser included offense of robbery with a weapon (ground one, part A); counsel (Assistant Public Defender Francis Shoemaker) was ineffective because he failed to object to the allegedly improper jury instruction pertaining to the lesser included offense of robbery with a weapon (ground one, part B); the trial judge committed fundamental error when he instructed the jurors that, rather than have portions of the trial testimony read to them

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during deliberations, they had to rely upon their collective memories in determining a verdict (ground two, part A); counsel was ineffective because he failed to object to the court's instructions concerning questions the jurors had posed to the court (ground two, part B); and the prosecutor committed misconduct by using false testimony and making improper comments during closing arguments (ground three, part A).

Additionally, Parker asserted that counsel was ineffective because he failed to: object to the alleged prosecutorial misconduct (ground three, part B); request a Richardson1 inquiry or object to the State's alleged discovery violation pertaining to the State's disclosure of Officer Freeman (ground four); pursue the issue of evidence tampering (ground five); call specific witnesses for impeachment purposes (ground six); properly advise Petitioner with respect to his right to testify on his own behalf (ground seven); file motions to suppress pertaining to a gun, sweatshirt, bank envelope, and Parker's arrest (ground eight); properly impeach the victim (ground nine); object to highly prejudicial hearsay testimony (ground ten); and demand disclosure of the police officer's notes that another officer used to make the police report (ground eleven). Parker also claimed that the trial court committed fundamental error when it sentenced him as a violent career criminal and that counsel rendered ineffective assistance

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based upon that sentence (ground twelve); counsel was ineffective because he breached the attorney/client privilege of confidentiality and became an advocate for the State (grounds thirteen and fourteen); the trial court committed fundamental and constitutional error when it failed to make a proper, factual determination on the merits of his motion for new trial (ground fifteen, part A); and counsel was ineffective because he failed to obtain a proper, factual basis for the denial of his motions for new trial (ground fifteen, part B).

The court denied Parker's requests for post-conviction relief on July 11, 2000. Resp. Ex. O at 23-217. On September 15, 2000, the court denied his motion for rehearing. Id. at 218-37, 238. Parker appealed the denial of his Rule 3.850 motions and filed a brief. Resp. Ex. P. The State notified the court that it did not intend to file an answer brief. Resp. Ex. Q. On July 2, 2001, the appellate court affirmed the trial court's decision per curiam. Parker v. State, 793 So.2d 936 (Fla. 1st DCA 2001); Resp. Ex. R. The court denied Parker's motion for rehearing on August 13, 2001. Resp. Exs. S; T. The mandate issued on August 29, 2001. Resp. Ex. U.

On April 26, 2000, Parker, though counsel, filed his first Motion to Correct Sentencing Error pursuant to Florida Rule of Criminal Procedure 3.800(a), asserting that his violent career criminal sentence of life imprisonment was illegal. Resp. Ex. W at

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85-88. On September 12, 2000, the court granted Parker's motion and entered a corrected Judgment and Sentence, adjudicating him guilty of robbery with a weapon and sentencing him, as a habitual felony offender, to a term of thirty-five (35) years of imprisonment. Resp. Ex. W at 93-98. Upon Parker's appeal, the appellate court affirmed the trial court's decision per curiam on June 27, 2003. Parker v. State, 852 So.2d 238 (Fla. 1st DCA 2003); Resp. Ex. DD. The court denied his motion for rehearing on July 31, 2003. Resp. Exs. EE; FF. The mandate issued on August 18, 2003. Resp. Ex. GG.

On November 20, 2000, Parker filed his second pro se petition for writ of habeas corpus, asserting that appellate counsel was ineffective because she failed to raise the following issues on direct appeal: (1) the trial court abused its discretion in instructing the jury on an inapplicable lesser included offense; (2) trial counsel was ineffective because he failed to object to the erroneous jury instructions; (3) the trial court abused its discretion in instructing the jury that it...

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