Sharpe v. Jones
| Decision Date | 08 March 2017 |
| Docket Number | Case No.: 4:14cv550-RH/CAS |
| Parties | ALVIN SHARPE, Petitioner, v. JULIE L. JONES, Secretary, Department of Corrections, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
REPORT AND RECOMMENDATION TO DENY § 2254 PETITION
On October 14, 2014, Petitioner Alvin Sharpe, proceeding pro se, filed a petition for writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent filed an answer with exhibits on June 9, 2015. ECF No. 14. Pursuant to an order granting leave, Petitioner filed a reply on July 10, 2015. ECF No. 18.
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 the issues raised, the undersigned as determined that no evidentiary hearing is required for the disposition of this case. See Rule 8(a), R. Gov. § 2254 cases in U.S. Dist. Cts. For the reasons stated herein, the undersigned has determined that the § 2254 petition should be denied.
On June 22, 2006, Petitioner was charged by information in Florida's Second Judicial Circuit (hereinafter "trial court") with one count of attempted first degree murder. ECF No. 14 Ex. A.1 The information alleged that Petitioner did unlawfully attempt to kill Kevin L. Ratliff by shooting with a firearm, and that the attempted killing was perpetrated from or with a premeditated design or intent to kill, in violation of sections 777.04(4)(b) and 782.04(1)(a)(1), Florida Statutes. Ex. A at 1. On February 20, 2008, after a jury trial, Petitioner was convicted of the lesser included offense of attempted second degree murder with a firearm. Id. at 2. Petitioner was sentenced as a prison releasee reoffender under section 775.082(8)(b), Florida Statutes, to a thirty-year prison term. Id. at 6-7. Appeal was taken to Florida's First District Court of Appeal (hereinafter "First DCA"), which affirmed Petitioner's conviction and sentence per curiam on July 27, 2009. Id. at 36; Sharpe v. State, 13 So. 3d 1060 (Fla.1st DCA 2009) (table). On November 16, 2009, Petitioner filed a "Petition for Writ of Habeas Corpus" in the First DCA.2 Ex. B at 1-10. On May 21, 2010, pursuant to Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009), aff'd, State v. Montgomery, 39 So. 3d 252 (Fla. 2010), the First DCA reversed Petitioner's conviction and sentence, and remanded the case for a new trial. Ex. B at 30-31; Sharpe v. State, 39 So. 3d 342 (Fla. 1st DCA 2010).
On August 11, 2011, before being retried, Petitioner filed a pro se motion asking the trial court to conduct a hearing and remove his appointed counsel, known in Florida as a Nelson inquiry.3 Ex. D at 210. Petitioner filed a subsequent motion for Nelson hearing on September 6, 2011. Id. at 214. The trial court held a hearing on September 28, 2011, at which Petitioner orally withdrew his motion.4 Ex. F at 123-24. On November 9,2011, with his new trial still pending, Petitioner filed a pro se application for writ of habeas corpus with Florida's Third Judicial Circuit, the jurisdiction in which Petitioner was incarcerated. Id. at 218-29.5 The application was transferred to the trial court, in the Second Judicial Circuit, which struck the pro se pleading pursuant to Booker v. State, 807 So. 2d 800 (Fla. 1st DCA 2002), because Petitioner was represented by counsel at the time. Ex. D at 239.
Petitioner was retried on February 10, 2012. Ex. H at 42. The prosecution's case centered on the testimony of witnesses present at the scene of the shooting, and on inculpatory statements made by Petitioner after his arrest. Id. at 59-62, 175-85. Petitioner presented no witnesses, and the defense strategy rested on the fact that many of the prosecution's witnesses were convicted felons whose testimony might be both biased and internally inconsistent, as well as the lack of forensic evidence in the case. Id. at 62-63, 185-200. The jury convicted Petitioner of the lesserincluded offense of aggravated battery with a firearm. Id. at 210. Petitioner was sentenced to a 20-year prison sentence. Ex. D at 302.
Petitioner filed a notice of appeal on March 23, 2012. On appeal, Petitioner's counsel filed an Anders brief, certifying that counsel was unable to make a good-faith argument that the trial court committed reversible error, except for certain sentencing errors. Ex. I. Petitioner raised those sentencing errors through counsel in a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Ex. G at 305-21. Petitioner filed a separate pro se brief6 on January 18, 2013, by the Mailbox Rule. Ex. J. The First DCA affirmed Petitioner's conviction and prison sentence on May 22, 2013, and remanded to correct errors in Petitioner's monetary assessments. Sharpe v. State, 115 So. 3d 1021,1023 (Fla. 1st DCA 2013). Petitioner moved for rehearing on May 30, 2013. Ex. K at 5-17. The First DCA denied his motion on July 9, 2013, and issued its mandate on July 25, 2013. Id. at 18-19.
On August 7, 2013, Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (hereinafter "Rule 3.850") in the trial court. Ex. L at 1-25. Petitioner asserted three grounds for relief: (1) that trial counsel's failure to "fully advise [Petitioner] in reference to testifying" violated Petitioner's Sixth Amendment right to counsel, id. at 6; (2) that trial counsel rendered ineffective assistance by failing to object to improper comments made by the prosecutor in closing argument, id. at 8; and (3) that the cumulative errors of trial counsel amounted to ineffective assistance of counsel, and denied Petitioner a fair trial, id. at 11. On August 19, 2013, while his Rule 3.850 motion was still pending before the Second Circuit, Petitioner filed an "Emergency Petition for Writ of Habeas Corpus Relief" in Florida's Third Judicial Circuit, reasserting the double jeopardy and jurisdictional claims from his pro se appellate brief. Id. at 26-34. The Third Judicial Circuit transferred this "Emergency Petition" to the trial court in the Second Judicial Circuit on September 9, 2013. Id. at 36-37. The trial court considered the "Emergency Petition" as a supplement to Petitioner's Rule 3.850 motion, and denied relief on the merits with respect to all grounds asserted in the combined motion. Id. at 39-40. Petitioner moved for rehearing on October24, 2013, and the trial court denied that motion on November 6, 2013. Ex. M at 214-21.
Petitioner filed a notice of appeal to the First DCA on November 13, 2013, and filed a petition for writ of certiorari7 in that court on November 15, 2013. Ex. M at 222-23, Ex. O at 1-8. The First DCA affirmed the trial court's denial of Petitioner's Rule 3.850 motion without opinion on August 22, 2014. Ex. R; Sharpe v. State, 147 So. 3d 989 (Fla. 1st DCA 2014) (table). The First DCA issued its mandate on September 17, 2014. Ex. R.
On October 14, 2014, Petitioner filed the instant petition for writ of habeas corpus in this Court. Petitioner raises three claims of ineffective assistance of trial counsel, for (1) failure "to fully advise the Petitioner in reference to testifying" in Petitioner's own defense at trial, (2) failure "to object to the prosecutor's misconduct" in closing argument, and (3) "cumulatively denying the Petitioner a fair trial" through combined errors at trial. ECF No. 1 at 3-7. Respondent admits that the section 2254 petition"appears timely," ECF No. 14 at 3, and Petitioner has properly exhausted each claim before state courts. See 28 U.S.C. § 2254(b)(1)(A) (); but see id. § 2254(b)(3) (). Therefore, the Court may consider the merits of Petitioner's claims.
Federal courts do not review section 2254 petitions de novo. A federal court shall not grant habeas relief to "a person in custody pursuant to the judgment of a State court . . . with respect to any claim that was adjudicated in the merits" in state court unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." Id. §§ 2254(d)-(d)(1). This standard of review is "'difficult to meet'" and "'highly deferential'" to the state court's conclusions of law. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ().
The scope of "clearly established federal law" is limited to federal law "as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). State court decisions are "contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of Court and nevertheless arrives at a different result from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Section 2254(d)(1) prevents a federal court from granting relief "in cases where a state court's error is limited to the manner in which it applies Supreme Court precedent." Id. at 407. The single exception to this rule is when the state court adjudication, though not contrary to established federal law, nonetheless involves an objectively unreasonable application of Supreme Court precedent. See 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 409-410 (). Under section 2254(d)(1) ...
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