Stewart v. Jones

• Decision Date: 02 July 2015
• Docket Number: Case No. 3:13cv564/MCR/CJK
• Court: U.S. District Court — Northern District of Florida
• Parties: NATHANIEL STEWART, Petitioner, v. JULIE L. JONES, Respondent.

NATHANIEL STEWART, Petitioner, v. JULIE L. JONES,¹ Respondent.

Case No. 3:13cv564/MCR/CJK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

July 2, 2015

ORDER and REPORT AND RECOMMENDATION

Before the court is an amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 4). Respondent filed an answer, submitting relevant portions of the state court record. (Doc. 20). Petitioner replied. (Docs. 25, 30). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by petitioner, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. Theundersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to federal habeas relief.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner was charged by amended information filed in Escambia County Circuit Court Case No. 11-CF-1963, with burglary of an unoccupied structure (Count 1) and petit theft (Count 2). (Doc. 20, Ex. C, pp. 1-7).² Petitioner went to trial, and a jury found him guilty as charged. (Ex. C, pp. 32-33). By judgment rendered June 14, 2012, petitioner was adjudicated guilty and sentenced on Count 1 to 89.5 months imprisonment with 101 days credit for time served, and on Count 2 to time served. (Ex. C, pp. 206-212). Petitioner's judgment of conviction was affirmed on direct appeal, per curiam and without a written opinion, on March 21, 2013. Stewart v. State, 145 So. 3d 102 (Fla. 1st DCA 2013) (Table) (copy at Ex. N).³

On April 25, 2013, petitioner filed a second motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800. (Ex. Q, pp. 1-5). The state circuit court dismissed the motion without prejudice on April 30, 2013. (Ex. Q, pp. 6-22). The Florida First District Court of Appeal ("First DCA") per curiam affirmed without a written opinion. Stewart v. State, 125 So. 3d 156 (Fla. 1st DCA 2013) (copy at Ex. R). The mandate issued December 10, 2013. (Ex. S).

On July 11, 2013, petitioner filed a pro se petition for writ of habeas corpus in the state circuit court. (Ex. U, pp. 1-4). On July 23, 2013, the state court dismissed the petition on procedural grounds and for lack of jurisdiction. (Id., pp. 5-9). The First DCA per curiam affirmed without a written opinion. Stewart v. State, 141 So. 3d 185 (Fla. 1st DCA 2013) (copy at Ex. Y). The mandate issued July 10, 2014.

During the pendency of the state habeas appeal, petitioner filed his federal habeas petition in this court (doc. 1), which he later amended (doc. 4). The amended petition raises four claims: (1) insufficient evidence to sustain the burglary conviction; (2) insufficient evidence to sustain the theft conviction; (3) the trial court erred in denying a judgment of acquittal; and (4) the verdict was contrary to the weight of the evidence. (Doc. 4, pp. 5-10). Respondent asserts that this court lacks jurisdiction to consider any challenge to petitioner's petit theft conviction (Count 2), because petitioner was not "in custody" under that conviction and sentence at the time he filed his federal petition. (Doc. 20, pp. 14-16). Respondent asserts that petitioner's challenges to his burglary conviction fail for one or more of the following reasons: (1) the claim is not cognizable on federal habeas review because it presents a purely state law issue; (2) the claim is procedurally defaulted; (3) the claim is without merit. (Doc. 20, pp. 6-17).

DISCUSSION

Claim(s) Challenging Petitioner's Petit Theft Conviction

Habeas corpus relief is available only to those who are "in custody" in violation of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also 28 U.S.C. § 2241(c)(3) ("The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or law or treatiesof the United States") (emphasis added). This "in custody" requirement is jurisdictional. Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401, 403 (11th Cir. 1988). To satisfy the "in custody" requirement, "the habeas petitioner [must] be 'in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989) (per curiam). Although courts have traditionally interpreted the "in custody" requirement liberally to include situations where the sentence in question enhances or delays the commencement of another sentence, that circumstance does not exist here, because petitioner's sentence on the petit theft conviction was fully served on the day it was imposed. The petit theft sentence had no effect on the commencement of petitioner's burglary sentence - the sentence he is presently serving. As it is evident from the record that petitioner was no longer "in custody" under the petit theft conviction at the time he filed his federal habeas petition, this court is without jurisdiction to consider petitioner's challenge(s) to that conviction and sentence. See, e.g., Sweet v. McNeil, 345 F. App'x 480, 482 (11th Cir. 2009) (holding that district court lacked subject matter jurisdiction to consider ground two of petitioner's habeas petition, in which petitioner claimed counsel was ineffective for failing to assert a double jeopardy challenge to petitioner's convictions for simply battery and burglary with assault or battery; petitioner was no longer "in custody" on the simple battery conviction when he filed his petition; petitioner's sentences on the two charges ran concurrently, and petitioner's shorter sentence on the simple battery conviction expired prior to petitioner's filing his federal habeas petition).⁴

Petitioner's Ground Two, and any aspect of petitioner's remaining claims that could be construed as challenging petitioner's petit theft conviction, should be dismissed for lack of subject matter jurisdiction.

Claims Challenging Petitioner's Burglary Conviction

A. Ground One: "Insufficient evidence for burglary conviction." (Doc. 4, p. 5).

Petitioner alleges the following in support of this claim: "State did not prove that petitioner entered owner Edwards burnt-out house which was their duty according to the charging document." (Doc. 4, p. 5). Petitioner asserts he exhausted this claim by presenting it on direct appeal. (Id.).

Respondent argues that this claim does not present a claim upon which federal habeas relief may be granted, because petitioner simply asserts that the evidence against him was insufficient and does not identify any federal-law basis for his claim. (Doc. 20, p. 7). Respondent argues that even if construed as presenting a federal due process challenge to the sufficiency of the evidence, the claim must be rejected as procedurally defaulted because in petitioner's motion for judgment of acquittal and on direct appeal, petitioner presented his claim as a purely state-law issue and failed to apprise the state courts of the federal constitutional nature of his claim. (Id., p. 12). In the alternative, respondent asserts that even if this claim could be considered on the merits as a federal claim, it should be rejected as devoid of merit. (Id., pp. 12-14).

Petitioner replies that his claim has merit. Petitioner does not address respondent's procedural default argument. (Docs. 25, 30).

To the extent Ground One can be liberally construed as raising a federal constitutional challenge to the sufficiency of the evidence, the claim is procedurally defaulted because petitioner did not present the federal constitutional nature of hisclaim to the state courts. Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all available state court remedies for challenging his conviction, 28 U.S.C. § 2254(b)(1),⁵ thereby giving the state the "'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and which can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. O'Sullivan, 526 U.S. at 839-40, 848, 119 S. Ct. 1728; Hittson v. GDCP Warden, 759 F.3d 1210, 1260 n.56 (11th Cir. 2014) ("Where a return to statecourt would be futile - because the petitioner's claims would clearly be barred by state procedural rules - a federal court can 'forego the needless judicial ping-pong' and treat unexhausted claims as procedurally defaulted." (quoting Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998))); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998) (holding that federal habeas courts should enforce applicable state procedural bars even as to claims that were never presented to the state courts).

A petitioner seeking to overcome a procedural default must show cause and prejudice, or a fundamental miscarriage of justice. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993). "For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McCleskey v. Zant, 499 U.S. 467, 497, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)...