Shepherd v. Sec'y
| Decision Date | 30 May 2014 |
| Docket Number | Case No: 8:13-cv-1983-T-30AEP |
| Parties | ADAM DANIEL SHEPHERD, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents. |
| Court | U.S. District Court — Middle District of Florida |
THIS CAUSE comes before the Court upon the petition of Adam Daniel Shepherd (Dkt. #1) for habeas corpus relief under 28 U.S.C. § 2254, Respondent's response (Dkt. #10), and Shepherd's reply (Dkt. #16). Upon review, the Court concludes that the petition should be denied.
Shepherd was arrested for acts occurring on February 14, 2009, and was charged by Amended Information as follows:
The state filed a Notice of Intent to Offer Evidence of Other Crimes, Wrongs or Acts. Appx. A).
Defense counsel filed a motion to dismiss the aggravated battery of a law enforcement officer charges and a motion to strike the state's Notice of Intent. The motions were heard by the trial court and denied on October 9, 2009.
On October 14, 2010, Shepherd entered a plea of guilty to Counts One, Two, Three, Four, Seven, Eight, Nine and Ten and the state entered a nolle prosequi on Counts Five and Six. The parties agreed on a negotiated sentence of twenty years' incarceration followed by fifteen years sex offender probation. Petitioner did not file a direct appeal of his sentence.
On June 26, 2011, Petitioner filed a Florida Rule of Criminal Procedure 3.800 Motion to Correct Illegal Sentence contending that he should not have been given sex offender probation for non-qualifying offenses on Counts Three and Four. He also argued that his sentence was improperly reclassified based on an unconstitutional statute and that his twenty year sentence was illegal because it was imposed above the guidelines without a jury finding. The motion was granted in part in that the sex offender probation was changed to regular probation. The remainder of the motion was denied. Shepherdappealed, but the ruling was per curiam affirmed. Shepherd v. State, 101 So. 3d 856 (Fla. 5th DCA 2012).
Shepherd then filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief raising two issues:
Motion for Post-Conviction Relief, Appendix T.
The post-conviction court denied the motion with a written opinion. See Appendix U. Shepherd appealed. The post-conviction court's order was affirmed. Shepherd v. State, 112 So. 3d 110 (Fla. 5th DCA 2013).
Shepherd then timely filed his 28 U.S.C. § 2254 petition for writ of habeas corpus with this Court. He raises four grounds for relief:
Ground One: That Petitioner's constitutional right to the effective assistance of counsel was violated when his trial counsel failed to advise him of and move the trial court to dismiss Counts One and Two of the Amended Information based upon the viable and affirmative defense of entrapment. That as a result of this failure, Petitioner's rights under the 5th, 6th and 14th Amendments of the United States Constitution have been violated.
Ground Two: That Petitioner's constitutional right to the effective assistance of counsel was violated when his trial counsel failed to move the court to dismiss the counts found in Counts 3 and 4 of the Amended Information based upon video footage which would have concluded that the state would have been precluded from presenting a prima facie case that the crimes of battery on a law enforcement officer ever occurred. ThatPetitioner's constitutional right to the effective assistance of counsel was also violated when his trial counsel failed to advise the Petitioner to proceed to trial on these counts based upon the states inability to prove the elements of the crimes charged beyond a reasonable doubt. That as a result of this failure, Petitioner's rights pursuant to the 5th, 6th and 14th Amendments of the United States Constitution have been violated.
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective as of April 24, 1996, "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 of the United States." 28 U.S.C. § 2254(a). The Supreme Court has cautioned that § 2254 does not make federal courts "forums in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887, 103 S. Ct. 3383, 77 L.Ed.2d 1090 (1983).
Where a state court initially considers the issues raised in the petition and enters a decision on the merits, Section 2254(d) governs the review of those claims. See Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct. 1910, 150 L.Ed.2d 9 (2001). A federal court may grant a § 2254 petition only if (1) the state decision was "contrary to, or involved anunreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) the state decision 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 Price v. Vincent, 538 U.S. 634, 638, 123 S. Ct. 1848, 155 L.Ed.2d 877 (2003); Maharaj v. Sec'y for the Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).
The Eleventh Circuit Court of Appeals discussed the meaning of the "contrary to" and "unreasonable application" clauses in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id.
Section 2254 establishes a highly deferential standard for reviewing state court judgments. Parker v. Sec'y for the Dep't of Corr., 331 F.3d 764, 768 (11th Cir. 2003). If a federal court concludes that a state court applied federal law incorrectly, it may grant habeas relief only if that application was "objectively unreasonable." Id. See also Yarborough v. Gentry, 540 U.S. 1, 124 S. Ct. 1, 4, 157 L.Ed.2d 1 (2003). Moreover, under Section 2254(e)(1), a state court's factual findings shall be presumed correct, and the habeas petitioner can rebut the presumption of correctness only by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
The law regarding ineffective assistance of counsel claims is well settled. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 (); Sims, 155 F.3d at 1305 (). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding...
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