Poole v. Sec'y

• Decision Date: 02 August 2018
• Docket Number: Case No. 3:15-cv-1157-J-34JBT
• Parties: DWAINE ELMER POOLE, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

DWAINE ELMER POOLE, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:15-cv-1157-J-34JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

August 2, 2018

ORDER

I. Status

Petitioner Dwaine Elmer Poole initiated this action by filing a pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28 U.S.C. § 2254 and Memorandum of Law in Support of Petition (Memorandum; Doc. 2) on September 29, 2015. In the Petition, Poole challenges his violation of probation relating to a 2012 state court (Columbia County, Florida) judgment of conviction for uttering a forgery. Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Answer (Response; Doc. 17) with exhibits (Resp. Ex.). On October 18, 2016, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. 6), admonishing Poole regarding his obligations and giving Poole a time frame in which to submit a reply. Poole submitted a brief in reply on June 20, 2017. See Reply to Respondents' Answer (Reply; Doc. 20). This case is ripe for review.

II. Procedural History

On August 20, 2008, the State of Florida charged Poole with six counts of uttering a forgery. See Resp. Ex. A-1 at 1-3, Information. Poole entered a negotiated plea agreement with the State on July 13, 2009. See Resp. Ex. B at 164-68. Pursuant to the terms of the negotiated plea agreement, Poole pled guilty to all six counts. That same day, the court sentenced Poole to a term of imprisonment of thirty-six months for count one, and three years of probation for counts two through six, to run concurrently with each other and consecutively to count one. See id. at 174-88, Judgment. On May 2, 2011, Ronald Raymond (Poole's probation officer) filed an Affidavit of Violation of Probation (VOP), asserting that Poole had violated several conditions of the Order of Probation. See id. at 193-97. Raymond amended the VOP Affidavit on May 16, 2011, to include allegations of new charges in Polk County, Florida. See Resp. Ex. J at 66-67.

The case proceeded to a hearing, at the conclusion of which, on June 13, 2012, the court revoked Poole's probation. See Resp. Ex. D, Transcript of the VOP hearing (Tr.). The court sentenced Poole to terms of imprisonment of five years on counts two andthree, to run concurrently with each other, and terms of imprisonment of five years on counts four, five, and six, to run concurrently with each other, and consecutively to the sentences imposed for counts two and three. See Resp. Ex. C at 229-34, Judgment; Tr. at 56-57.

On direct appeal, Poole, with the benefit of counsel, filed an initial brief pursuant to Anders v. California, 386 U.S. 738 (1967). See Resp. Ex. E. Poole filed a pro se brief, arguing that the trial court erred when it revoked his probation based on hearsay testimony. See Resp. Ex. F. The State did not file an answer brief. See http://onlinedocketsdca.flcourts.org, Case No. 1D12-3086. On January 7, 2013, the appellate court affirmed Poole's conviction and sentence per curiam without issuing a written opinion, see Resp. Ex. G, and the mandate issued on February 4, 2013, see Resp. Ex. H.

Poole filed a pro se motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motion) on July 4, 2013. See Resp. Ex. I at 1-38. In his request for post-conviction relief, Poole asserted that counsel (Thomas Nemeck) was ineffective because he failed to: obtain medical records that would refute Florida Highway Patrol Trooper Walt Smith's account and the State's version of the events (ground 1A); object to the State's discovery violation and seek a Richardson¹hearing (ground 1B); adequately investigate and prepare for the VOP hearing (ground 1C); object to the court's decision to conduct the VOP hearing before a jury trial on the new law violations (ground 1D); investigate and call medical personnel as witnesses to refute Trooper Smith's testimony (ground 1E); obtain a copy of the other driver's deposition and provide a copy to Poole for his review (ground 1F); object to the State's use of facts related to the Polk County charges (ground 1G); and investigate, take photographs, and call the tow truck driver and owner of the wrecking yard as witnesses to refute Trooper Smith's testimony (ground 1H). Additionally, he maintained that the State committed a discovery violation when it withheld the names of two eyewitnesses who had identified Poole as the driver of the vehicle involved in the traffic collision (ground two). He also stated that counsel's cumulative errors deprived him of a fair and impartial VOP hearing (ground three). The court denied the Rule 3.850 motion on October 31, 2014, see Resp. Ex. J at 58-186, and later denied his motion for rehearing, see id. at 190-205, 206-07. On March 10, 2015, the appellate court affirmed the trial court's denial of post-conviction relief per curiam, see Resp. Ex. M, and later denied Poole's motion for rehearing, see Resp. Exs. N; O. The mandate issued on May 8, 2015. See Resp. Ex. P.

III. One-Year Limitations Period

The Petition appears to be timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the need for a federal evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). "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); Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S.Ct. 2245 (2017). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record before the Court. Because this Court can "adequately assess [Poole's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a state prisoner's federal petition for habeas corpus. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct. 1432 (2017). "'The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.'" Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of final state court decisions is "'greatly circumscribed' and 'highly deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue an opinion explaining its rationale in order for the state court's decision to qualify as an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court's adjudication on the merits is unaccompanied by an explanation, the United States Supreme Court recently stated:

[T]he federal court should "look through" the unexplained decision to the last relatedstate-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning.

Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). The presumption may be rebutted by showing that the higher state court's adjudication most likely relied on different grounds than the lower state court's reasoned decision, such as persuasive alternative grounds that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at 1192, 1196.

The United States Supreme Court reiterated the standard of review when there is not a reasoned state court adjudication on the merits. See Sexton v. Beaudreaux, 138 S.Ct. 2555, 2558 (2018) (per curiam).

When, as here, there is no reasoned state-court decision on the merits, the federal court "must determine what arguments or theories ... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). If such disagreement is possible, then the petitioner's claim must be denied. Ibid. We have often emphasized that "this standard is difficult to meet" "because it was meant to be." Ibid. ; e.g., Burt v. Titlow, 571 U.S. 12, 20, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013).

Id.

If the claim was "adjudicated on the merits" in state court, § 2254(d) bars relitigation of the claim unless the state court'sdecision (1) "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) "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); Richter, 562 U.S. at 97-98. As the Eleventh Circuit has explained:

First, § 2254(d)(1) provides for federal review for claims of state courts' erroneous legal conclusions. As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two distinct

...