Reilly v. State, Dept. of Corrections
| Decision Date | 31 March 1994 |
| Docket Number | No. 90-183-CIV-FtM-17(D).,90-183-CIV-FtM-17(D). |
| Citation | 847 F. Supp. 951 |
| Parties | Michael K. REILLY, Petitioner, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Robert A. Butterworth, Attorney General, Respondents. |
| Court | U.S. District Court — Middle District of Florida |
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Michael K. Reilly, pro se.
Elaine L. Thompson, Atty. General's Office Dept. of Legal Affairs, Hollywood, FL, for respondents.
THIS CAUSE is before the Court on Michael K. Reilly, Petitioner's Petition for Writ of Habeas Corpus (Docket No. 1) and the State of Florida, et al., Respondents' Response to the Petition for Writ of Habeas Corpus (Docket No. 38).
Petitioner Michael K. Reilly was charged by information with two counts of making a written threat to kill or do bodily injury pursuant to § 836.10, Florida Statutes (1985); two counts of corruption by threat against a public servant pursuant to § 838.021, Florida Statutes (1985); and one count of carrying a concealed weapon pursuant to § 790.01, Florida Statutes (1985). Petitioner waived his right to a jury trial and proceeded to a bench trial in the Twentieth Judicial Circuit in and for Lee County, Florida. On October 27, 1987, Petitioner was found guilty on all five counts.
On December 14, 1987, the Florida trial court sentenced Petitioner to two years and eleven months incarceration on the first count of corruption under § 838.021 and to five years probation on the second count of corruption. The trial court also sentenced Petitioner to ten years probation on each of the two counts of making a written threat under § 836.10, and to five years probation for the concealed weapon charge under § 790.01. The trial court ordered that the sentences run consecutively, resulting in a total sentence of two years and eleven months incarceration and thirty years probation for all five counts.1 Petitioner brought a direct appeal of his sentence before the Florida Second District Court of Appeal. The issues raised on appeal included: (1) Section 838.021, Florida Statutes was unconstitutional; (2) Section 836.10, Florida Statutes was unconstitutional; (3) Section 790.01 was unconstitutional and has been impliedly repealed by the legislature; (4) the conviction under both §§ 838.021 and 836.10 constituted double jeopardy; (5) Appellant Reilly was justified in using deadly force to defend against the illegal orders of the court; (6) the trial court erred in denying Appellant Reilly's motion to proceed pro se at trial; and (7) the trial court erred in using a category nine scoresheet instead of a category four scoresheet. No other motions for post-conviction relief have been filed in this case. On April 2, 1990, the Florida appellate court summarily affirmed Petitioner's convictions without a written opinion. See Reilly v. State, 561 So.2d 1154 (Fla. 2d DCA 1990).
On June 26, 1990, Petitioner, acting pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (1988). The statute provides in part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the constitution or laws or treaties of the United States.
Petitioner raises several grounds in his petition including: (1) Sections 838.021, 836.01, and 790.01, Florida Statutes (1985), are unconstitutional; (2) Petitioner's convictions under both §§ 838.021 and 836.10 constitute double jeopardy; (3) Petitioner's convictions under §§ 838.021, 836.10, and 790.01 were against the weight of the evidence and Petitioner was justified in using deadly force to defend against an illegal order of the court; (4) trial court erred in denying Petitioner's motion to proceed pro se at trial; and (5) trial court erred in using a category nine scoresheet instead of a category four scoresheet which resulted in a higher guideline sentence.
On May 16, 1991, the district court dismissed Petitioner's Petition for Writ of Habeas Corpus without prejudice.2 Petitioner appealed the dismissal to the United States Court of Appeals for the Eleventh Circuit. The issue before the Eleventh Circuit was whether Petitioner had exhausted his available state remedies. The exhaustion rule is satisfied when the state courts have had the opportunity to review and correct a defendant's federal constitutional rights. 28 U.S.C. § 2254(b), (c); Castille v. Peoples, 489 U.S. 346, 348, 109 S.Ct. 1056, 1058, 103 L.Ed.2d 380 (1989). Under Florida law, a facial challenge to a state statute may be raised for the first time on appeal of a criminal conviction. Alexander v. State, 477 So.2d 557, 559 (Fla.1985). The Eleventh Circuit found that Petitioner raised the facial challenges and the double jeopardy claims in his brief to the Florida Second District Court of Appeal which satisfied the requirements of 28 U.S.C. § 2254(c). See also Castille, 489 U.S. at 349-50, 109 S.Ct. at 1059-60. The Eleventh Circuit reversed and remanded this case to this Court on June 29, 1992 (Docket No. 33).
A Federal Public Defender was appointed by Magistrate Judge George Swartz to represent Petitioner in this action on April 23, 1993 (Docket No. 42). A pre-evidentiary hearing conference was scheduled before Magistrate Judge Swartz for July 12, 1993 (Docket No. 43). However, Petitioner filed a Motion of Formal Notice of Self-Representation & Waiver of Counsel (Docket No. 44) and an Objection to Appointment of Counsel (Docket No. 45). Magistrate Judge Swartz granted Petitioner's motions and found the case should proceed to a ruling on the merits by a United States Federal District Judge (Docket No. 46).
Petitioner's issues raised in the original petition continue before this Court. Before discussing the merits of the case, this Court must determine if Petitioner is "in custody" for purposes of 28 U.S.C. §§ 2241(c) and 2254. As the Supreme Court held in Peyton v. Rowe, a prisoner serving consecutive sentences is "in custody" under any one of the sentences for purposes of § 2241(c)(3). Peyton, 391 U.S. 54, 67, 88 S.Ct. 1549, 1556, 20 L.Ed.2d 426 (1968). A prisoner placed on parole is also considered "in custody" during the unexpired term of his sentence because his release from physical confinement is not unconditional. Jones v. Cunningham, 371 U.S. 236, 242, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). However, a habeas petitioner is not "in custody" when the sentence imposed for that conviction has fully expired at the time his petition was filed. Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).
Petitioner Reilly filed the Petition for Writ of Habeas Corpus after the sentence on the first count of corruption by threat against a public servant had been fully credited through time spent in jail prior to sentencing. Petitioner is currently serving a 30-year probation sentence and is only challenging this portion of his sentence. As the Supreme Court noted in Jones, this probationary restraint is within the meaning of "in custody." Petitioner has exhausted his state remedies and is "in custody" for purposes of §§ 2241 and 2254, therefore, Petitioner's claims on the remaining counts are properly before this Court.
In Ground one, Petitioner alleges that §§ 838.021, 836.10, and 790.10, Florida Statutes, are unconstitutionally vague and overbroad. In addition, Petitioner contends that § 838.021 violates his constitutional right of free speech and that it exceeds the power of the state legislature because it imposes an incarcerative sanction that is greater than the sanction possible for comparable federal law; that § 836.10 is in violation of the Eighth Amendment's proscription against cruel and unusual punishment; and that § 790.01 has been impliedly repealed by the state legislature.
This Court will first address Petitioner's argument that the statutes are vague and overbroad. In a facial challenge to a law on the basis of overbreadth and vagueness, a court's first task is to determine whether the law reaches a substantial amount of constitutionally protected conduct. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191-92, 71 L.Ed.2d 362 (1982). There must also be a realistic danger that the statute will significantly compromise recognized First Amendment protections of parties not before the court. City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984). If the law does not reach constitutionally protected conduct, then the overbreadth challenge must fail. Hoffman, 455 U.S. at 494-95, 102 S.Ct. at 1191-92.
A law that does not violate the overbreadth test may still be challenged on its face as vague, in violation of due process. Hoffman Estates, 455 U.S. at 497-98, 102 S.Ct. at 1192-93. A law is impermissibly vague if it is vague in all of its applications. Id. A statute is void for vagueness if it fails to give adequate notice to people of ordinary intelligence concerning the conduct the statute proscribes. United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir.1988); State v. Wilson, 464 So.2d 667, 668 (Fla. 2d DCA 1985).
Petitioner alleges that § 838.021 is vague because it violates constitutionally protected speech. The statute provides:
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