Plummer v. Sec'y of the Fla. Dep't of Corr.
| Decision Date | 17 August 2015 |
| Docket Number | Case No. 3:12-cv-485-J-34PDB |
| Parties | BRYAN W. PLUMMER, Petitioner, v. SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
BRYAN W. PLUMMER, Petitioner,
v.
SECRETARY OF THE FLORIDA DEPARTMENT OF
CORRECTIONS, et al., Respondents.
Case No. 3:12-cv-485-J-34PDB
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
August 17, 2015
ORDER
Petitioner Bryan W. Plummer, an inmate of the Florida penal system, initiated this action on April 27, 2012, by filing a pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28 U.S.C. § 2254 with an Appendix (P. Ex.; Doc. 2). In the Petition, Plummer challenges a 2006 state court (Bradford County, Florida) judgment of conviction for driving under the influence (DUI) manslaughter (three counts) and DUI causing serious bodily injury.
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Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Response to Petition for Writ of Habeas Corpus (Response; Doc. 9) with exhibits (Resp. Ex.). On May 7, 2012, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. 6), admonishing Plummer regarding his obligations and giving Plummer a time frame in which to submit a reply. Plummer submitted a brief in reply. See Petitioner's Traverse/Reply to Response (Reply; Doc. 14). This case is ripe for review.
On September 6, 2002, the State of Florida charged Plummer with DUI manslaughter (Counts I-III); DUI resulting in serious bodily injury (Count IV); vehicular homicide (Counts V-VII); and possession of not more than twenty grams of cannabis (Count VIII). Resp. Ex. A at 19-21, Information. On May 26, 2004, the Information was amended to allege an unlawful blood alcohol level in Count IV. Resp. Ex. B at 439-41. The trial court severed Count VIII. Id. at 433-35, Order Severing Count VIII and Excluding Evidence as to Presence of Marijuana. Plummer proceeded to trial in June 2004, see Resp. Exs. D-N2, Transcripts of the Jury Trial (Tr.), at the conclusion of which, on June 28, 2004, a jury found him guilty, as charged, on Counts I-IV and guilty of the lesser offense of culpable negligence for Counts V-VII. See Resp. Ex. B at 473-75, Verdict; Tr. at 1391-92. On July 1, 2004, the court sentenced Plummer to a term of imprisonment of twenty years for Count I;
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sixteen years for Count II, to run consecutively to Count I; twenty years for Count III, to run concurrently to Count I; and five years for Count IV, to run concurrently to Count II. Resp. Ex. B at 479-89, Judgment. The trial court abated Counts V-VII. After years of litigation relating to Plummer's sentences, the trial court resentenced Plummer on October 13, 2006, see PD-1 at 18, and modified the sentences on December 12, 2006, see id. at 19, and March 16, 2007, see id. at 20, as follows: a term of imprisonment of fifteen years for Count I; fifteen years for Count II, to run concurrently to Count I; five years for Count III, to run consecutively to Counts I and II; and five years for Count IV, to run consecutively to Count III. See Resp. Ex. Y at 1-5, Order Granting Motion to Correct Illegal Sentence and Directing the Clerk of Court to Amend Sentence, filed March 16, 2007.
On appeal, Plummer, with the benefit of counsel, filed an initial brief in September 2005, arguing that the trial court erred when it: (a) sustained an objection to the introduction of a material safety data sheet (MSDS) which was relevant to a disputed issue concerning the amount of methanol and ethanol in a can of denatured alcohol that Plummer may have accidentally ingested and thereby increased his blood alcohol level, and (b) did not allow Plummer a continuance to authenticate the MSDS (ground one); denied Plummer's motion to exclude the blood test results (ground two); denied his motion to dismiss the charges of DUI manslaughter
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because Florida Statutes section 316.193 does not define impairment (ground three); and admitted the blood test results when the State had failed to establish the reliability of the tests (ground four). Resp. Ex. S. Additionally, Plummer argued that the appellate court should remand the case to the trial court for a hearing on the motion to correct sentencing error (ground five). Id. The State filed an answer brief, see Resp. Ex. T, and Plummer filed a reply brief, see Resp. Ex. U. On July 3, 2006, the appellate court reversed the trial court's denial of Plummer's Rule 3.800(b) motion, remanded the case for resentencing, and affirmed the trial court's decision on the remaining issues. See Plummer v. State, 935 So.2d 35 (Fla. 1st DCA 2006) (per curiam); Resp. Ex. V. The court denied the State's motion for rehearing on August 4, 2006, see Resp. Ex. W, and the mandate issued on August 22, 2006, see Resp. Ex. X. Plummer did not seek review in the United States Supreme Court.
On April 18, 2007, Plummer, with the benefit of counsel, filed a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In his request for post conviction relief, Plummer asserted that counsel was ineffective because he failed to: properly investigate and obtain certified MSDS evidence that was extremely pertinent to Plummer's defense - that Plummer was covered in paint and denatured alcohol, which resulted in an artificial elevation of his blood alcohol level due to ingestion,
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inhalation and absorption (ground A); properly object to State's exhibit 28, which was not part of discovery, and request a continuance and/or a Richardson1 hearing to examine the new business record exception, the exhibit's authenticity and the prejudice to the defense (ground B); argue that State's exhibit 28 and the letter of certification were testimonial evidence in nature in violation of the Sixth Amendment's confrontation clause (ground C); request an involuntary intoxication instruction (ground D); argue for suppression of the blood test results on the ground that the results were illegally obtained by the State (ground E); advise Plummer of his right to testify and the prosecution's ability to use his prior criminal record to impeach his credibility at trial (ground F); advise Plummer of the strict liability standard of Florida's DUI laws in that Florida Statutes section 316.193 criminalizes conduct for "as little as 1% contribution" to injury or death if it is proven that the accused operated a vehicle while impaired or with a .08 or higher blood alcohol level (ground G); investigate the State's presentation of misleading evidence to the court and jury, and file a motion for a new trial to inform the court or preserve the record for appeal (ground I); argue that denying Plummer the ability to present evidence at trial was a violation of state and federal law and contrary to Chambers v. Mississippi, 410 U.S. 284 (1973), and the Due Process Clause
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(ground J); and depose and subpoena Dr. Pete Gianis before trial (ground K). Resp. Ex. CC at 1-33. Additionally, Plummer asserted that the State violated Brady2 when it failed to "fully disclose the entire spectrum of compositions for denatured alcohol" to the defense (ground H), and the cumulative effect of counsel's ineffectiveness deprived Plummer of a fair trial (ground L). Id. On October 3, 2007, the court denied Plummer's motion as to grounds D, H, J and L, and scheduled an evidentiary hearing as to the remaining grounds. Id. at 34-46. In an amendment, Plummer asserted counsel was ineffective because he: failed to investigate the paint and chemicals which covered Plummer and were pivotal to the defense (ground M), and misinformed Plummer that a full scale traffic crash analysis would be, and had been, conducted by a defense expert and failed to object to the presentation of unscaled and misleading crash analysis diagrams during trial (ground N). Id. at 195-205. The court granted Plummer's request to supplement his post conviction motion and present evidence on his new claims. Resp. Ex. DD at 215-31. After a three-day evidentiary hearing on June 29-30, 2009, and August 21, 2009, see Resp. Exs. DD at 232-312; EE; FF at 569-715, Transcripts of the Evidentiary Hearing (EH Tr.), and the filing of post-hearing memoranda, see Resp. Ex. GG at 759-98, 800-02, 807-18, the court denied Plummer's post conviction motion as to grounds A, B, C, E, F, G, I, K, M and N. Id. at 919-27. On July 7,
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2010, the court denied Plummer's motion for rehearing. Resp. Ex. HH. On appeal, Plummer filed an initial brief, see Resp. Ex. II, and the State notified the court that it did not intend to file an answer brief, see Resp. Ex. JJ. On October 31, 2011, the appellate court affirmed the trial court's denial per curiam, see Plummer v. State, 73 So.3d 764 (Fla. 1st DCA 2011); Resp. Ex. KK, and the mandate issued on November 16, 2011, See Resp. Ex. LL.
The Petition appears to be timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d); Response at 4 n.4.
"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation...
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