Ross v. Jones
| Decision Date | 02 August 2016 |
| Docket Number | Case No. 4:14cv64-MW/CAS |
| Parties | LASEDRICK M. ROSS, Petitioner, v. JULIE L. JONES, Secretary, Department of Corrections, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
LASEDRICK M. ROSS, Petitioner,
v.
JULIE L. JONES, Secretary, Department of Corrections,1 Respondent.
Case No. 4:14cv64-MW/CAS
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION
August 2, 2016
REPORT AND RECOMMENDATION TO DENY § 2254 PETITION
On February 6, 2014, Petitioner Lasedrick M. Ross, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1 at 3-17. After direction by this Court, Petitioner filed an amended § 2254 petition. ECF No. 8. On February 9, 2015, Respondent filed an answer, with exhibits. ECF No. 16. Petitioner filed a reply on May 13, 2015. ECF No. 19.
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The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons stated herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief, and this § 2254 petition should be denied.
By information filed April 21, 2008, in case number 08CF01290, the State of Florida charged Petitioner, Lasedrick M. Ross, with one count of lewd or lascivious battery, a second degree felony in violation of section 800.04(4)(a), Florida Statutes, in connection with events that took place between January 1, 2008, and April 18, 2008. Ex. A at 1.2 Ross proceeded to a jury trial on February 5, 2009, before Judge Angela C. Dempsey. Ex. C (trial transcript). The jury found him guilty. Ex. A at 35;
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Ex. C at 187-88. On March 11, 2009, the court adjudicated him guilty and sentenced him to ten (10) years in prison, followed by five (5) years of sex offender probation, with credit for 173 days. Ex. A 40-47; Ex. D at 13-15.
Ross appealed his conviction and sentence to the First District Court of Appeal (DCA), assigned case number 1D09-1408. Ex. E (Initial Brief); Ex. F (Answer Brief); Ex. G (Reply Brief). On March 3, 2010, the First DCA issued a written opinion affirming the case. Ex. H; Ross v. State, 31 So. 3d 858 (Fla. 1st DCA 2010). Ross filed a motion for rehearing en banc, Ex. I, which the First DCA denied by order on April 6, 2010, Ex. J. The mandate issued April 22, 2010. Ex. K.
On May 25, 2011, Ross filed a pro se motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in the state trial court. Ex. L at 1-22 (exclusive of exhibits). The state post-conviction court, Judge Jackie Fulford, summarily denied relief by order rendered November 18, 2011. Id. at 77-80 (exclusive of attachments). Ross thereafter filed a motion to supplement his Rule 3.850 motion, a motion for rehearing, and a supplement to the motion for rehearing. Ex. M at 225-38 (motion to supplement), 239-41 (motion for rehearing), 242-46 (supplement to motion
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for rehearing). By order rendered February 8, 2012, Judge Fulford granted the motion for rehearing and denied Ross's supplemented Rule 3.850 motion. Ex. M at 247-48.
Ross appealed, pro se, to the First DCA and filed an initial brief in case number 1D12-4253. Ex. N. The State filed a notice that it would not file an answer brief. Ex. O. Ross filed a petition for writ of mandamus in the First DCA, Ex. P, and a "Suggestion for Certification," Ex. Q, both of which the court denied by order dated February 28, 2013, Ex. R. Also on February 28, 2013, the First DCA per curiam affirmed the appeal without a written opinion. Ex. S; Ross v. State, 109 So. 3d 788 (Fla. 1st DCA 2013) (table). The mandate issued March 26, 2013. Ex. T.
In the meantime, on January 28, 2013, Ross filed another petition for mandamus in the First DCA, assigned case number 1D13-591. Ex. X. In response to a show cause order by the court, Ross filed a supplement to his petition. Ex. Y (order), Z (supplement). By order on March 21, 2013, the First DCA converted the petition to one seeking a writ of habeas corpus. Ex. AA. Ross filed a Notice of Supplemental Authority and an Appendix Supplement. Ex. BB, CC. On May 1, 2013, the First DCA
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dismissed the petition, with a citation to Baker v. State, 878 So. 2d 1236 (Fla. 2004). Ex. DD. Ross filed a motion for rehearing and clarification, Ex. EE, which the First DCA denied by order on June 11, 2013, Ex. FF.
Meanwhile, on April 26, 2013, Ross filed a petition to invoke all writs jurisdiction in the Florida Supreme Court. Ex. U. Ross sought to consolidate and hold in abeyance his petition for writ of habeas corpus and stay the ruling on his petition to involve all writs jurisdiction. Ex. V. By order on October 7, 2013, the Florida Supreme Court dismissed the petition to invoke all writs jurisdiction, for lack of jurisdiction, and denied the motion to consolidate and hold in abeyance the petition for writ of habeas corpus. Ex. W.
After his proceedings seeking review of the denial of his Rule 3.850 motion concluded in the First DCA, Ross filed a petition for writ of mandamus in the Florida Supreme Court. Ex. GG. The Florida Supreme Court treated the case, number SC13-1349, as one seeking reinstatement of the proceedings in the First DCA. Ex. HH. On December 27, 2013, the Florida Supreme Court denied and dismissed the petition. Ex. II. Ross sought certiorari review in the U.S. Supreme Court, Ex. JJ, which denied
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the petition on October 7, 2013, Ex. MM.
In the meantime, Ross had filed, on June 17, 2013, a pro se petition for habeas corpus in the state trial court. Ex. NN at 1-24. By order rendered July 10, 2013, the state court denied the petition, finding it frivolous and successive, and also warning Ross about filing additional frivolous motions. Id. at 30. Ross appealed the order and ultimately filed a brief in the First DCA, assigned case number 1D13-4930. Exs. OO, PP, QQ, RR, WW. The State filed an answer brief. Ex. XX. Ross filed a reply brief. Ex. YY. On August 18, 2014, the First DCA affirmed the appeal and wrote "only to warn Appellant, much like the trial court did" that "additional collateral attacks on this conviction and sentence, if again successive and improper, may result in sanctions." Ex. ZZ; Ross v. State, 145 So. 3d 207 (Fla. 1st DCA 2014). The mandate issued September 15, 2014. Ex. AAA.
On December 25, 2013, Ross filed a pro se petition for writ of certiorari in the First DCA, with an appendix and supplement, assigned case number 1D13-6174. Exs. BBB, CCC, DDD. The First DCA ultimately dismissed the petition without a written opinion on March 7,
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2014. Ex. GGG; see Exs. EEE, FFF. Ross filed a motion for rehearing and clarification, Ex. HHH, which the First DCA denied on April 9, 2014, Ex. II. The mandate issued April 25, 2014. Ex. JJJ.
As indicated above, Ross filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court on February 6, 2014. ECF No. 1. He subsequently filed an amended § 2254 petition. ECF No. 8. He raises four grounds:
(1) "Involuntary statement denied Petitioner's due process and right not to be a witness against self," where Petitioner was never given warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and he was under the influence of a prescribed pain killer at the time of his confession. Id. at 5.
(2) "The courts lack jurisdiction to impose the order, whereby the Petitioner is being detained." Id. at 6.
(3) "'Local custom' concerning plea of not guilty is unconstitutional," where Petitioner was denied the right to proper notice and pleadings. Id. at 7.
(4) "Erroneous jury instruction," where there was no tangible evidence and the "overt act and element of penetration is not established." Id. at 9.
Respondent has filed an answer, with exhibits. ECF No. 8. Petitioner has filed a reply. ECF No. 19.
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Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody. Section 2254(d) provides, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that 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) resulted in a decision that 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). See, e.g., Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011); Williams v. Taylor, 529 U.S. 362 (2000); Gill v. Mecusker, 633 F.3d 1272 (11th Cir. 2011). "This is a 'difficult to meet' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen, 131 S.Ct. at 1398 (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011), and Woodford v.
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Visciotti, 537 U.S. 19, 24 (2002)). This Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S.Ct. at 1388.
In his first ground, Petitioner Ross argues his statement to investigators was involuntary because he was not given Miranda warnings and he was under the influence of a prescription painkiller. ECF No. 8 at 5. Ross raised this claim in state court as the second point in his direct appeal: "The trial court erred in denying suppression of a confession obtained without Miranda warnings while Ross was functionally in custody." Ex. E at i; see id. at 11-18. The First DCA issued an opinion affirming the case, but did not discuss this...
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