Preston v. Sec'y, Department of Corr., CASE NO. 6:08-cv-2085-Orl-31GJK

Decision Date01 May 2012
Docket NumberCASE NO. 6:08-cv-2085-Orl-31GJK
PartiesROBERT ANTHONY PRESTON, JR., Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
CourtU.S. District Court — Middle District of Florida
ORDER

This case is before the Court on the Petition for Habeas Corpus Relief (Doc. No. 1) filed by Robert Anthony Preston, Jr. Pursuant to the instructions of the Court, Respondents filed a Response (Doc. No. 13) and a Supplemental Response (Doc. No. 22) to the Petition for Writ of Habeas Corpus. Thereafter, Petitioner filed a Reply (Doc. No. 20) and Supplemental Reply (Doc. No. 23) to the responses. As discussed hereinafter, the habeas petition is denied.

I. STATEMENT OF THE FACTS

The facts adduced at trial, as set forth by the Florida Supreme Court, are as follows:

Earline Walker, who was working as a night clerk at the Li'l Champ convenience store in Forest City, was noticed missing at approximately 3:30 a.m. on the morning of January 9, 1978. All bills had been removed from the cash register and the safe, and it was subsequently determined that $574.41 had been taken. Walker's automobile was found later that day parked on thewrong side of the road approximately one and a half miles from the Li'l Champ store. Thereafter, at about 1:45 p.m. of the same day, Walker's nude and mutilated body was discovered in an open field adjacent to her abandoned automobile.
Preston lived with his brothers, Scott and Todd, at his mother's home which was located about one-quarter of a mile from the field in which Walker's body was found. Scott Preston testified that he spent the evening of January 8, 1978, at the house with his brothers and his girlfriend, Donna Maxwell. At about 11:30 p.m., he retired to the bedroom with Donna. About an hour later, Robert knocked on the door, asking Scott to go with him to the Parliament House "to get some money." When Scott declined, Robert asked one of them to help him inject some PCP. After Scott and Donna refused to do so, they heard the door slam as Robert left the house. At about 4:30 a.m., Robert returned and asked them to come to the living room where he was attempting to count some money. Because he "wasn't acting normal," they counted the money for him, which came to $325. Robert told them that he and a friend, Crazy Kenny, had gone to a gay bar called the Parliament House where they had hit two people on the head and taken their money. Scott and Donna went back to bed. Donna gave similar testimony concerning Robert's actions. She also said that shortly before 9:00 a.m., Robert returned and told her that he had heard that a body of a woman who worked in a store near their house had been discovered in a field.
The head security guard at the Parliament House testified that he observed no disturbance nor was any disturbance reported to him at that establishment during his shift which began in the early evening on January 8 and ended at 5:00 a.m. on January 9. There was no police report of any incident at the Parliament House on January 9, 1978.
A woman returning home from her late night job at about 2:20 a.m. saw Preston wearing a plaid CPO jacket at a location near the vacant lot where Walker's body was found.
Preston was arrested the day following the murder on an unrelated charge. As part of the booking process, his personal effects, including his belt, were removed, and his fingerprints were taken. A pubic hair was discovered entangled in Robert's belt buckle. A microscopic analysis of the hair together with another one discovered on his jacket indicated that they could have originated from Walker's body.
Blood samples were taken from the victim and from Preston and compared with two blood stains found on Preston's CPO jacket. The blood samples were compared as to eight separate factors, including type, Rh factor, and enzyme content. The sample from the coat and the victim matched in all eight tests, while Preston's blood did not match in three. An expert opined that the blood on the coat could not have been Preston's but could have been the victim's. He also testified that only one percent of the population would have all eight factors in their blood.
Several detached food stamps were also found in Preston's bedroom pursuant to a consent search authorized by his mother. As a result of a fracture pattern analysis, an expert witness testified that these coupons had been torn from a booklet used by Virginia Vaughn to make purchases at the Li'l Champ food store several days before the murder. Vaughn testified that at the time of her purchase the coupons had been placed either in the cash register or the safe.
Five usable latent fingerprints and palm impressions were obtained from Walker's automobile and were identified as having been made by Preston. One of these was from a cellophane wrapper of a Marlboro cigarette pack found on the front console. The other prints were located on the doorpost and the roof of the car.
Preston took the stand in his own behalf. He agreed that he was at his mother's house in the company of his brothers and Donna Maxwell the night of January 8. However, he said he had injected PCP and had no recollection of what occurred during the middle portion of the night. He did recall trying to count some money and had some recollection of going to the Parliament House in a car driven by Crazy Kenny. Preston denied having touched Walker's abandoned automobile. He also said that he had not been in the vicinity of the Li'l Champ store for approximately six months before the murder. He testified that the food stamps discovered in his room were found by him on a path behind the Li'l Champ store on the morning of the murder when he went there to purchase cigarettes. He admitted talking to Donna Maxwell regarding the discovery of the store clerk's body but said that the conversation did not occur until about 3:30 to 4:30 p.m.

Preston v. State, 531 So. 2d 154, 155-57 (Fla. 1988).

II. Procedural History

Petitioner was charged by indictment with four counts of first degree murder (counts one through four),1 one count of robbery (count five), one count of kidnaping (count six), and one count sexual battery (count seven) (Ex. A-12 at 2188-90.)2 A jury trial was held, and Petitioner was found guilty of counts one, two, three, five and six. (Ex A-15 at 2696-2700.) A judgment of acquittal was entered as to counts four and seven. The trial court entered a judgment as to the robbery and kidnaping counts, see id. at 2802, and sentenced Petitioner to imprisonment for a term of fifteen years as to the robbery count and to life imprisonment as to the kidnaping count, with the sentences to run consecutively. Id. at 2802-08.

Following the penalty phase, the jury recommended death by a vote of seven to five. Id. at 2733. The trial court sentenced Petitioner to death as to the first degree murder counts.3 (Ex A-16 at 2813-19.)

On direct appeal, Petitioner raised five claims. (Ex. B.) The Supreme Court of Florida affirmed the convictions and sentences. Preston v. State, 444 So. 2d 939 (Fla. 1984).

On October 31, 1985, Petitioner filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which was later supplemented, raising fourteen claims. (Ex. F-6 at 954-88, F-7 at 1263-88.) The trial court held an evidentiary hearing and then entered an order denying all of Petitioner's claims. (Ex. F-7 at 1307-13.) Petitioner appealed the denial, raising thirteen claims. (Ex. G.) The Florida Supreme Court affirmed the denial of the motion for postconviction relief. Preston v. State, 528 So. 2d 896 (Fla. 1988). The Florida Supreme Court indicated, however, that certain matters pertaining to newly discovered evidence could be presented through the filing of a motion for writ of error coram nobis. Id. at 898.

Following the issuance of a new death warrant, Petitioner filed in the Florida Supreme Court an application for leave to file a petition for writ of error coram nobis and a request for stay of execution. (Ex. L.) The petition for writ of error coram nobis centered around alleged newly discovered evidence. Petitioner also filed a petition for writ of habeas corpus with the Florida Supreme Court, raising seven claims. (Ex. M.) The Florida Supreme Court entered an opinion denying the petition for writ of error coram nobis and the petition for a writ of habeas corpus. See Preston v. State, 531 So. 2d 154 (Fla. 1988).

Petitioner next filed in the Florida Supreme Court another petition for writ of habeas corpus, which was denied without prejudice on April 20, 1989, to raise the same arguments via a Rule 3.850 motion.

On April 2, 1990, Petitioner filed a second Rule 3.850 motion, raising nine claims. See Ex. P at 53-147.4 The trial court denied the motion, see id. at 47-52, and the Florida Supreme Court entered an opinion vacating Petitioner's sentence of death and remanding the case for resentencing. See Preston v. State, 564 So. 2d 120 (Fla. 1990). The supreme court found that the vacation of Petitioner's prior violent felony conviction required that the case be remanded for resentencing since it could not be said that the vacation of the prior violent felony conviction constituted harmless error as related to his death sentence.

In January 1991, a new penalty phase jury sentencing was held. The jury recommended death by a vote of nine to three, but, subsequently, the trial court granted a motion for a new penalty phase trial. (Ex. Q-10 at 1801, 1841-44.) In April 1991, another penalty phase jury was impaneled and evidence was presented. The jury unanimously recommended a sentence of death. (Ex. Q-6 at 1130.) The trial court then sentenced Petitioner to death. (Ex. Q-9 at 1674-78; Ex. Q-10 at 1914-25.)5

Petitioner filed an appeal with the Supreme Court of Florida, raising eight claims. (Ex. R.) The Florida Supreme Court entered an opinion affirming the sentence of death. Preston v. State, 607 So. 2d 404 (Fla. 1992).

On May 24, 1994, Petitioner filed a...

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