Phillips v. Sec'y, Dep't of Corr.
| Decision Date | 20 July 2022 |
| Docket Number | 8:21-cv-960-WFJ-SPF |
| Parties | JOHNNY MARSHALL PHILLIPS, JR., Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Johnny Marshall Phillips, Jr., pro se
Mr Phillips, a Florida prisoner, initiated this action by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1). Respondent filed a response in opposition (Doc. 6). Upon consideration, the petition will be denied.
Mr. Phillips was charged with fifty counts of possession of child pornography, one count of transmission of material harmful to minors, and one count of use of a computer to seduce, solicit, or entice a child to commit a sex act (Doc. 6-2, Ex. 14). He entered a negotiated plea of no contest to all charges against him (Id., Ex. 18; Ex. 20, transcript pp. 7-15). In accordance with the plea agreement, he was sentenced to concurrent 30-year terms of imprisonment on each count followed by 10 years on sex offender probation (Id., Ex. 20, transcript p. 15; Ex. 23). The convictions and sentences were affirmed on appeal (Id., Ex. 32).
Mr. Phillips filed a Motion for Post-Conviction Relief under Rule 3.850, Fla.R.Crim.P. (Id., Ex. 35). The state postconviction court denied grounds one, six, seven, and eight, and dismissed grounds two, three, four, five, nine, and ten with leave to amend (Id., Ex. 36). Mr. Phillips amended the dismissed grounds (Id., Ex. 37). The state postconviction court denied those grounds as facially insufficient (Id., Ex. 39). The state appellate court affirmed without opinion (Id., Ex. 42).
Mr. Phillips filed a state petition for writ of habeas corpus alleging ineffective assistance of appellate counsel (Id., Ex. 45). The petition was denied by the state appellate court (Id., Ex. 46).
Mr. Phillips filed his federal habeas petition (Doc. 1), which asserts three grounds for relief.
Because Mr. Phillips filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA “establishes a more deferential standard of review of state habeas judgments,” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to “prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) ().
Under the AEDPA, habeas relief may not be granted regarding a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). The phrase “clearly established Federal law,” encompasses only the holdings of the United States Supreme Court “as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the ‘contrary to' and ‘unreasonable application' clauses articulate independent considerations a federal court must consider.” Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the “contrary to” clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.
If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was “objectively unreasonable.” Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
The writ of habeas corpus cannot be granted unless the petitioner has exhausted all available state court remedies. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Lucas v. Sec'y, Fla. Dep't of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012) (citing 28 U.S.C. § 2254(b), (c)). Exhausting state remedies requires a petitioner to “fairly present” his claims in each appropriate state court “thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) ().
Under the procedural default doctrine, a claim raised in a federal habeas petition is barred from review if the claim was not raised in state court and “the court to which the petitioner would be required to present [the] claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1. To avoid a procedural default, a petitioner must show “either cause for and actual prejudice from the default or fundamental miscarriage of justice from applying the default.” Lucas, 682 F.3d at 1353; Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
Ground One: Illegal Search an [sic] Siezure [sic]
In Ground One, Mr. Phillips contends law enforcement officers entered his home and “performed a search and siezure [sic] without a warrant” in violation of his state and federal constitutional rights (Doc. 1, p. 6). Then the officers went before the state court and obtained a warrant after admitting they executed the search without a warrant (Id.).
In Ground Three, Mr. Phillips alleges he consented to a search of one of his cell phones for calls and text messages to the victim (Id., p. 9). He contends the officers exceeded the scope of his consent by “conducting a full forensic analys [sic][,]. . .retriving [sic] deleted data and searching the Sim card....” (Id.).
Respondent correctly argues Mr. Phillips' claim that the searches violated his rights under the Florida Constitution is not cognizable in this action (Doc. 6, p. 4). Generally, a claim alleging a violation of state law is not subject to review by a petition for the writ of habeas corpus. Pulley v Harris, 465 U.S. 37, 41 (1984); McCullough v. Singletary, 967 F.2d 530, 535-36 (11th Cir. 1992). State courts, not federal courts on habeas review, are the final arbiters of state law. See Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997) ();Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ().
Respondent likewise correctly argues that to the extent Mr. Phillips raises a substantive claim that the officers' searches violated his rights under the Fourth Amendment to the United States Constitution, the claim is procedurally barred from review (Id., pp. 5-6). In state court, Mr. Phillips moved to suppress (Doc. 6-2, Ex. 9) but did not assert a warrantless search of his home or that officers exceeded the scope of consent when searching his cellular phone. And even if he raised the claims in his motion to suppress, he failed to raise the issues in his brief on direct appeal (Id., Ex. 31). Because Mr. Phillips did not give the state courts one full opportunity to resolve the substantive Fourth Amendment claims by invoking one complete round of the state's established appellate review process, his Fourth Amendment claims are unexhausted. Boerckel, 526 U.S. at 845.
In his state postconviction motion, Mr. Phillips raised a claim that trial counsel was ineffective in failing to move to suppress based on officers exceeding the scope of consent and searching his home without a warrant (Id., Exs 34-35). However, he did not raise his substantive Fourth Amendment violation claim (Id.). Mr. Phillips' assertion of an ineffective assistance of trial counsel claim for failing to move to suppress because officers exceeded the scope of consent and searched the home without a warrant was not sufficient to exhaust his substantive Fourth...
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