Spivey v. Sec'y, Dep't of Corr., Case No. 8:08-cv-2356-T-23EAJ

• Decision Date: 20 September 2012
• Docket Number: Case No. 8:08-cv-2356-T-23EAJ
• Parties: AREE L. SPIVEY, Petitioner, v. SECRETARY, Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Florida

AREE L. SPIVEY, Petitioner,

v.SECRETARY, Department of Corrections, Respondent.

Case No. 8:08-cv-2356-T-23EAJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: September 20, 2012

ORDER

Spivey petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges the validity of both the revocation of his probation and the sentence of fifteen years. Numerous exhibits ("Respondent's Exhibit__") support the response. (Doc. 24) The respondent admits the petition's timeliness. (Response at 7)

FACTS¹

In 2003 Spivey pleaded no contest to three third-degree felonies.² He was sentenced to two years of drug offender probation. In 2005 Spivey's probation was revoked and he was sentenced to three consecutive five-year terms of imprisonment, for a total of fifteen years. Spivey's probation was revoked and the consecutive sentencesimposed because Spivey admitted to committing perjury during the trial of a capital offense.³ Spivey contends that his sentence of fifteen years is a vindictive sentence.

STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of a state court adjudication, states 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.

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied--the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal Law, as determined by the Supreme Court of the United States" or(2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas 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.

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. at 694. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 786-87 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Afederal court must afford due deference to a state court's decision. "AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, __ U.S. __, 130 S. Ct. 1855, 1866 (2010). See also Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398 (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' . . . .") (citations omitted).

In a per curiam decision without a written opinion the state appellate court on direct appeal affirmed Spivey's convictions and sentences. (Respondent's Exhibit 5) Similarly, in another per curiam decision without a written opinion the state appellate court affirmed the denial of Spivey's subsequent Rule 3.850 motion to vacate. (Respondent's Exhibit 13) The state appellate court's per curiam affirmances warrant deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 131 S. Ct. at 784-85 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").

Review of the state court decision is limited to the record that was before the state court.

We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time, i.e., the record before the state court.

Pinholster, 131 S. Ct. at 1398. Spivey bears the burden of overcoming by clear and convincing evidence a state court factual determination. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court's rejection of Spivey's post-conviction claims warrants deference in this case. (Order on Defendant's Motion for Post-Conviction Relief, Exhibit 10)

Ground One:

Spivey and Jason Reid (his cousin) were arrested and charged with first-degree murder. They were tried separately. Testifying favorably for Reid at Reid's murder trial, Spivey denied seeing anyone with a gun during the altercation that caused the death of the victim. Despite Spivey's testimony, the jury found Reid guilty of first-degree murder. A couple of months later Spivey was tried for the same murder. At his trial Spivey testified (1) that he saw both Reid and Anderson possess guns and that Reidshot Anderson and (2) admitted that he knew he was lying under oath when he testified at Reid's trial. The jury acquitted Spivey.

Spivey was serving a probationary sentence when he testified at the two trials. Based on his admitting to perjury, Spivey's probation was revoked and he was sentenced to three, consecutive, five-year sentences. This federal petition challenges the revocation of probation and consequent sentence.

In ground one Spivey contends that his sentence of fifteen years is a vindictive sentence. He contends that the sentencing judge justified the maximum sentence because "as a result of perjury [Spivey] avoided a mandatory life sentence." The state post-conviction court rejected this claim as follows (Respondent's Exhibit 10 at 1-2):

In the first claim, the Defendant alleges that the trial court committed fundamental error when it imposed a sentence that was the maximum penalty of fifteen years. The Defendant alleges that this is a vindictive sentence. In determining whether "an imposed sentence is the result of judicial vindictiveness, the totality of the circumstances must be considered." Brown v. State, 875 So. 2d 744, 746 (Fla. 2d DCA 2004). The Second District Court of Appeal stated that

the factors to be considered in assessing the totality of the circumstances include, but are not limited to: (1) judicial participation in plea negotiations followed by a harsher sentence; (2) whether the trial judge initiated the plea discussions with the defendant in violation of State v. Warner, 762 So. 2d 507 (Fla. 2000); (3) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea or by implying or stating that the sentence imposed would hinge on future procedural choices, such as

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