Powell v. Sec'y

• Decision Date: 24 April 2015
• Docket Number: Case No: 5:13-cv-327-Oc-29PRL
• Court: U.S. District Court — Middle District of Florida
• Parties: TERRY POWELL, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS and FLORIDA ATTORNEY GENERAL, Respondents.

TERRY POWELL, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONSand FLORIDA ATTORNEY GENERAL, Respondents.¹

Case No: 5:13-cv-327-Oc-29PRL

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

April 24, 2015

OPINION AND ORDER

This matter comes before the Court upon a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Terry Powell ("Petitioner") who is presently confined at the Reception and Medical Center in Lake Butler, Florida (Doc. 1, filed July 9, 2013). Petitioner, proceeding pro se, attacks the convictions and sentences entered by the Fifth Judicial Circuit Court in Marion County, Florida for aggravated fleeing or attempting to elude and resisting a law enforcement officer without violence. Id. at 1.At this Court's direction (Doc. 7), Respondent filed a response to the petition (Doc. 9). Petitioner filed a reply (Doc. 12).

Petitioner raises nine claims in the instant petition (Doc. 1). Upon due consideration of the pleadings and the state court record, the Court concludes that each claim must be denied. Because the Court may resolve the petition on the basis of the record, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the factual allegations in the petition or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).

I. Procedural and Factual Background

Petitioner was charged by information with burglary of a dwelling with battery (count one), battery (count two), and felony fleeing or attempting to elude (count three)(App. A).² Petitioner was also charged with the misdemeanor offense of resisting an officer without violence (App. B).

At a June 8, 2009 pre-trial hearing, Petitioner, who was representing himself, indicated that he would like to have an attorney represent him, but he would not, under any circumstances, waive his speedy trial rights (App. D at 7-8). Because Petitionerhad a conflict with the public defender's office, conflict counsel was appointed. Id. at 10.

On June 12, 2009, a hearing was held on the state's motion to strike Petitioner's demand for a speedy trial (App. F). The state argued that Petitioner had sought discovery after his speedy trial demand. Id. at 3-4. Conflict counsel Jack Nugent ("Nugent") conceded that the state's motion was well-founded and argued that he needed time to prepare a defense. Id. at 4, 11. Petitioner interrupted, stating that he would not waive his speedy trial rights and threatened to fire Nugent as counsel. Id. at 11. The trial court struck Petitioner's demand for a speedy trial, but explained to Petitioner that he was still within his speedy trial window. Id. at 13. Petitioner reiterated his position that he would not waive his speedy trial rights under any circumstance. Id. at 15.

At a September 10, 2009 pre-trial hearing on Nugent's motion to sever, Petitioner advised the court that he wished to fire Nugent because of what he believed was an unreasonable delay in getting to trial (App. G at 16-19). Petitioner then argued that the state had violated discovery by not timely providing him with a recorded copy of the victim's statement. Id. at 19-20. The state explained that the CD had been disclosed, but it was still working on getting a copy to the defense. Id. at 21. Petitioner became hostile to both the Court and Nugent, and threatened tocall the trial judge as a witness at his trial. Id. at 22-24. The trial court cautioned Petitioner that if he continued to be rude, unprofessional, and discourteous and continued to interrupt the court proceedings, Petitioner would either be gagged or removed from the courtroom. Id. at 23-24. The following exchange occurred:

Petitioner: On the record, I fire him. And he's not doing what I ask, so the appeal of you, unsufficient (sic) counsel will work because you had it until July, and also you're going to be called as a witness and I'm going to make sure I say it in front of the jury, Willard Pope is my first witness I'm calling as pro se.

COURT: Mr. Powell, I'm going to remind you what I said earlier.

PETITIONER: I don't want to hear that shit. I'm done.

COURT: Mr. Powell -

PETITIONER: I can go.

COURT: Mr. - you're gonna - you don't have to listen, but I'm going to say it, Mr. Powell, for the record. If you conduct yourself in this fashion in the course of your trial, I will remove you from the courtroom so you won't have the opportunity to shine yourself in front of the jury. Do you understand?

PETITIONER: (no verbal response)COURT: He has given no response. But for the record, make no mistake of it, Mr. Powell, if you conduct yourself in this fashion in the course of your trial, you will be removed. All right.

(App. G at 24-25).

Five days after the foregoing exchange, Petitioner filed a motion seeking a Faretta hearing and a Nelson inquiry.³ The record does not indicate whether the motion was ruled upon. However, on September 21, 2009, prior to voir dire, Petitioner asked for a substitute attorney (App. I at 3), and the request was denied. Id. Petitioner then informed the court that he was firing Nugent, and would fire him "in front of the jury." Id. at 4. The court noted:

Mr. Powell, since we have started with you, you have been continuously disruptive. You have been stubbornly defiant. You have been unruly. You have been disobedient. You have been disrespectful. The last time you were in here, you cursed. You interrupt the Court. You talk over the Court. You've cursed in open court.

Your conduct, Mr. Powell, is an affront on the decorum of my courtroom. And I want you to understand that I'm going to give you opportunity, Mr. Powell, to behave yourself and to conduct yourself as a gentleman. But your conduct in general is intended to embarrass or hinder or obstruct our proceedings.

Id. at 5. Petitioner was warned that if he continued to disrupt the proceedings, he would be removed from the courtroom, and his trial would be conducted in his absence. Id. at 6. Subsequently, Petitioner interrupted the proceedings stating to the court that "[y]ou're not my judge. You're a witness." Id. at 7. Petitioner was removed from the courtroom. Id.

When Petitioner was returned to the courtroom, the trial judge advised him:

Mr. Powell, before we start, I want to make sure that we're clear. First of all, on your indications that you are firing Mr. Nugent and intend to proceed pro se, I want to make a finding on the record for you, sir, that the Court finds you are not competent to represent yourself or make competent decisions regarding your own representation.

So I'm not going to permit you to waive the assistance of Mr. Nugent. One of those reasons is because you are so unruly that you could not conduct a proper inquiry. And it is apparent to this Court that you are using whatever process is convenient to you at the time to thwart our proceedings.

In addition to that, I want you to understand that I will not tolerate any outbursts from you, any cursing from you, any generally disruptive or unruly behavior. At the very first outburst from you, Mr. Powell, I will have you removed. As long as you behave yourself, conduct yourself in a gentlemanly manner, I will allow you to remain. But I will not permit you to disrupt these proceedings.

(App. I at at 9-10). At Petitioner's protest, the court clarified that it found Petitioner to be not competent to represent himself and noted that it was Petitioner's intent to disrupt the proceedings. Id. The court cited England v. State, 940 So. 2d 389 (Fla. 2006) and Johnson v. State, 906 So. 2d 1149 (Fla. 1st DCA 2005) to support its action. Id. at 13.

Petitioner then listed the reasons he believed his counsel to be ineffective, noting that Nugent had "done told [him] he's not going to give his best for [him]." (App. I at 11-12). Nugent was allowed to respond:

Thank you, Your Honor. As far as me telling Mr. Powell that I think he's guilty, what I told Mr. Powell is after we watched the video of the chase, I said that the jury is going to find him guilty. And that was in reference to the plea negotiations that I was discussing with Mr. Powell as to the five-year offer followed by five years of probation.

At no time did I tell Mr. Powell that I wouldn't represent him to my fullest. I've never said that to any client and I never said that to Mr. Powell, ever.

Id. at 12-13.

Petitioner's trial was held on September 22, 2009 (App. M). During the victim's testimony, the jury was removed because the state objected to some of Nugent's questions. Id. at 39-40. When Petitioner interrupted Nugent's answer to a question from the Court, he was advised to keep his "mouth shut." Id. at 40. The court told Petitioner that he was not "asking," but was "telling."Petitioner replied that he "really don't give a fuck." Id. Petitioner then again attempted to fire his attorney. Id. Petitioner was found in contempt of court, after which Petitioner told the judge to "[g]o fuck yourself again. Contempt that in court, you dick sucking bitch. Don't put your mother fucking hands on me." Id. at 42. Petitioner was removed from the courtroom. Id.

Petitioner was later returned to the courtroom, and the court reiterated to Petitioner that he would be removed from the courtroom for the duration of his trial if he acted out again (App. M at 56). During Nugent's re-cross examination of the victim, Petitioner spoke out. The jury was escorted out of the room again. The court admonished Petitioner:

Mr. Powell, I've instructed you ad nauseam about being disruptive. You are sitting at the table. You are answering the questions that are being asked by the attorney. You are making gestures that [are] intended to be disruptive. I am having you removed from the courtroom. I have indicated to you repeatedly that I'm not going to tolerate your conduct, Mr. Powell. You can take him to the back.

Id. at 56. Petitioner responded to the judge, "I wasn't doing nothing. You're just mad and - run another...