Perri v. Dixon
| Decision Date | 05 October 2022 |
| Docket Number | 22-CV-14109-RAR |
| Parties | SEAN PERRI, Petitioner, v. RICKY D. DIXON, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
SEAN PERRI, Petitioner,
v.
RICKY D. DIXON, Respondent.
No. 22-CV-14109-RAR
United States District Court, S.D. Florida
October 5, 2022
Sean Perri DeSoto Annex PRO SE
ORDER DISMISSING IN PART AND DENYING IN PART 28 U.S.C. § 2254 HABEAS PETITION
RODOLFO A. RUIZ, II UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on a pro se Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, challenging Petitioner's convictions and sentences imposed by the Tenth Judicial Circuit Court in and for Highlands County, Florida, in Case No. CF10-689. See Petition [ECF No. 1] (“Pet.”). Respondent filed a Response to the Petition. See Response to Order to Show Cause [ECF No. 8] (“Resp.”). Having carefully reviewed the record and governing law, and for the reasons set forth below, the Court DENIES Grounds Four and Five of the Petition and DISMISSES the remaining grounds as procedurally defaulted.
PROCEDURAL HISTORY
Petitioner was charged by Second Amended Information with ten counts: one count of driving with a suspended or revoked license (Count 1), aggravated assault on a law enforcement officer with a deadly weapon (Count 2), leaving the scene of a crash involving damage (Count 3), fleeing or attempting to elude a law enforcement officer at a high speed (Count 4), resisting officers without violence (Count 5), possession of cannabis with intent to sell (Count 6), possession of cocaine (Count 7), possession of drug paraphernalia (Count 8), possession of ammunition by a
convicted felon (Count 9), and possession of a firearm by a convicted felon (Count 10). See Second Amended Information [ECF No. 9-1] at 32-34.[1]
The State alleged that, on July 27, 2010, Petitioner attempted to avoid a traffic stop by “tr[ying] to run over a Sebring police officer, [and] dr[iving] away after a collision involving a deputy sheriff's patrol vehicle,” Petitioner then “tossed out a bag containing a .45 calibre handgun, ammunition, cannabis, cocaine and paraphernalia before being apprehended.” Motion to Sever [ECF No. 9-1] at 48. Prior to trial, Petitioner's defense counsel moved to sever Count 9 and 10 since “[t]he allegation that Defendant is a convicted felon, is wholly unrelated to the offenses charged in Counts [1-8] of the information.” Id. The trial court granted the motion to sever, and a trial was held on Counts 1-8. See Order Granting Motion to Sever [ECF No. 9-1] at 54.
On April 13, 2012, a jury found Petitioner not guilty of Count 2 but guilty as charged on all seven other counts. See Verdict [ECF No. 9-1] at 65-68. Several days after the verdict, Petitioner entered a nolo contendere plea as to Counts 9 and 10. See Change of Plea Hr'g Tr. [ECF No. 10-9] at 3-11. After adjudicating Petitioner in accordance with the jury's verdict and his plea, the state trial court found that Petitioner qualified as a “habitual felony offender” and imposed a total sentence of thirty (30) years in the custody of the Florida Department of Corrections. See Judgment and Sentencing Orders [ECF No. 9-1] at 70-84.
Petitioner appealed his sentences and conviction to Florida's Second District Court of Appeal (“Second DCA”). Petitioner only advanced one argument on appeal: the state trial court erred in failing to dismiss Counts 6, 7, and 8 on the basis that “section 893.13, [Florida Statutes,]
was unconstitutional on its face.” Direct Appeal Initial Brief [ECF No. 9-1] at 102. The Second DCA affirmed the trial court on July 12, 2013, in an unwritten per curiam decision. See Perri v. State, 143 So.3d 930 (Fla. 2d DCA 2013).
On January 1, 2014,[2] Petitioner filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel with the Second DCA. See State Petition for Writ of Habeas Corpus [ECF No. 9-1] at 120-41 (citing Fla. R. App. P. 9.141(c)). Petitioner raised the following four claims: (1) appellate counsel was ineffective “for failing to raise on direct appeal fundamental error in regards to the jury instruction for fleeing to elude (high speed),” id. at 126; (2) appellate counsel was ineffective for failing to argue on appeal that the trial court erred “in denying Petitioner['s] Motion for Judgment of Acquittal where the State failed to prove an element to the crime of fleeing to elude high speed,” id. at 130; (3) appellate counsel was ineffective for failing to argue on appeal that his “dual convictions and sentences for possession of a firearm and possession of ammunition both by a convicted felon violated the prohibition against double jeopardy,” id. at 135; and (4) appellate counsel was ineffective for failing to present “a claim of ineffective assistance of trial counsel” based on trial counsel's failure to advise Petitioner about the double jeopardy issue, id. at 137-38.
On January 14, 2015, the Second DCA issued a written opinion agreeing that appellate counsel was ineffective for failing to argue that Counts 9 and 10 violated double jeopardy-it denied Petitioner's other three claims. See Perri v. State, 154 So.3d 1204, 1205 (Fla. 2d DCA 2015) (“Accordingly, we deny grounds one, two, and four of Mr. Perri's petition, but we grant the petition as it relates to ground three. . . . [W]e remand with directions for the trial court to vacate
Mr. Perri's conviction and sentence for possession of ammunition by a convicted felon.”). The state trial court vacated Count 9 upon remand from the Second DCA; his overall sentence remained unchanged. See Order Vacating Count 9 [ECF No. 9-1] at 240.
On May 28, 2015, Petitioner filed a motion for postconviction relief pursuant to Fla. R. Crim. P. 3.850. See Postconviction Motion (“Postconviction Mot.”) [ECF No. 9-1] at 242-57; Memorandum of Law in Support of Postconviction Motion (“Mem. of Law”) [ECF No. 9-2] at 351. The Postconviction Motion raised the following fifteen grounds for relief: (1) counsel was ineffective “for failing to notify the Defendant that the charges of Possession of Firearm and Ammunition by a convicted felon was subject to [habitual felony offender] enhancements,” Postconviction Mot. at 247; (2) counsel was ineffective “for failing to file a motion in limine to exclude statements concerning the Defendant allegedly running into a police cruiser,” id.; (3) counsel was ineffective “for failing to obtain and show Defendant [the] whole video from Officer Haralson . . . and [the] whole video from Officer Danley,” id. at 248; (4) counsel was ineffective for failing to properly advise Petitioner to “accept a (10) year prison sentence” offer from the State, id; (5) counsel was ineffective for “advising Defendant to not accept a (10) year straight up plea” and instead enter an open plea, id. at 249; (6) Petitioner's decision to enter a nolo contendere plea on Counts 9 and 10 was involuntary since “the Court and defense counsel failed to advise him that he could not receive a (60) year sentence as a Habitual Felony Offender,” id. at 249-50; (7) counsel was ineffective “for failing to make a ‘still frame' of the video that [an] officer testified [that] a bag was thrown out of the window of defendant's] vehicle,” id. at 250; (8) counsel was ineffective for failing to file a motion to suppress the contents of a “bag” where “video footage reflects the bag was not where the police alleged they found it,” id.; (9) counsel was ineffective “for failing to move to dismiss count (4) Fleeing to Elude (High Speed),” id. at 251; (10) counsel was ineffective
“for failing to impeach [S]ergeant Markham, Officer Haralson and Officer Bueford . . . where each testified that Mr. Markham got out of [his] vehicle and ordered defendant to stop when video shows such [sic] never happened,” id.; (11) counsel was ineffective “for failing to call witness, Lt. Kenny Johnson,” id. at 252; (12) counsel was ineffective for failing to object “to the Jury Instruction for Fleeing to Elude (High Speed),” id. at 253; (13) counsel was ineffective for advising Petitioner to enter an open plea on Counts 9 and 10 even though the “dual convictions violate[d] double jeopardy principles,” id.; (14) counsel was ineffective for failing to argue that “Florida Statute § 316.1935(3)(a) is unconstitutionally vague” since it does not properly define what “high speed” is, id. at 254; and (15) cumulative error, id.
On July 16, 2019, the state postconviction court entered a comprehensive written order denying in part Petitioner's Postconviction Motion and setting an evidentiary hearing on the remaining claims. See Order Denying in Part Postconviction Motion [ECF No. 9-2] at 135-140. In short, the state court denied Grounds One, Two, Three, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, and Fifteen, but set an evidentiary hearing to properly adjudicate Grounds Four and Five. See id. at 139-40. The evidentiary hearing was held on February 21, 2020, where only two witnesses were called: Petitioner and his former trial counsel, Robert Gray. See generally Evidentiary Hr'g Tr. [ECF No. 10-11] at 1-96. On March 6, 2020, the state postconviction court entered another order denying Grounds Four and Five of the Postconviction Motion. See Order Denying Postconviction Motion [ECF No. 9-2] at 214-17.
Petitioner appealed the state postconviction court's denial of the Postconviction Motion to the Second DCA. On appeal, Petitioner argued that “[t]he Lower Court abused [its] discretion and erred by denying Claims Four and Five of [the Postconviction Motion],” but did not address the denial of the other thirteen claims raised in the Postconviction Motion. See Postconviction Appeal
Initial Brief [ECF No. 9-2] at 238. On August 20, 2021, the Second DCA affirmed the state postconviction court in an unwritten per curiam opinion. See Perri v. State, 328 So.3d 300 (Fla. 2d DCA 2021). The appellate court's mandate issued on December 3, 2021. See Mandate [ECF No. 9-2] at 286. On March 7, 2022, Petitioner filed the instant Petition...
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