Timmons v. Sec'y, Case No: 5:12-cv-672-Oc-2 9PRL

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtJOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
PartiesOTIS TIMMONS, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS and FLORIDA ATTORNEY GENERAL, Respondents.
Decision Date11 March 2016
Docket NumberCase No: 5:12-cv-672-Oc-2 9PRL

OTIS TIMMONS, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS
and FLORIDA ATTORNEY GENERAL, Respondents.

Case No: 5:12-cv-672-Oc-2 9PRL

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

March 11, 2016


OPINION AND ORDER

I. Status

Petitioner Otis Timmons (hereinafter "Petitioner" or "Timmons") initiated this action proceeding pro se by filing a timely 28 U.S.C. § 2254 petition for writ of habeas corpus (Doc. #1, "Petition") challenging his judgment and conviction of attempted sexually battery while armed and kidnapping while armed entered in the Fifth Judicial Circuit Court in Marion County, Florida. The Petition raises four grounds for relief. See generally Petition.

Respondent1 filed a Response (Doc. #5, Response) opposing all grounds and attached supporting exhibits (Doc. #6, Exhs. 1-31)

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consisting of the record on direct appeal and postconviction pleadings. Inter alia, Respondent argues that Petitioner has not satisfied 28 U.S.C. § 2254(d) (1)-(2).2 Petitioner filed a Reply (Doc. #8), which also contains exhibits consisting of portions of the trial transcript.

For the reasons that follow, the Court concludes that Petitioner is not entitled to habeas relief and the Petition must be denied. Because the Petition can be resolved on the basis of the record, an evidentiary hearing is not warranted. Schriro v. Landrigan, 550 U.S. 465, 473-474 (2007) (finding if the record refutes the factual allegations in the petition or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).

II. Background and Pertinent Procedural History

On March 23, 2007, Petitioner was charged by Information with attempted sexual battery while armed and kidnapping while armed.

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Exh. 1, pp. 1-3. After a two-day jury trial in April 2009, the jury found Petitioner guilty as charged. In accordance with the verdict, the trial judge sentenced Petitioner to a concurrent thirty-year term of imprisonment in the Florida Department of Corrections and designated him a sexual predator.3 Exh. 3. Subsequently, the trial court changed Petitioner' sentence on the attempted sexual battery conviction to a fifteen-year term of imprisonment with a concurrent thirty-year sentence on the armed kidnapping conviction. Exh. 10, pp. 187-188.

Petitioner, with the assistance of counsel, filed a direct appeal raising one issue for relief: whether the trial court erred by admitting Williams rule evidence when there was no probative value and the evidence solely showed that [Petitioner] had a propensity to commit sex crimes. Exh. 10, p. 145-146. After briefing from the State, the appellate court entered an order per curiam affirming the decision. See Exh. 10, p. 164 (answer brief); Exh. 6 (appellate court order dated November 23, 2010).

Petitioner then filed his first postconviction motion under Florida Rule of Criminal Procedure 3.850. See Exh. 10, pp. 1-12 (Rule 3.850 motion). The postconviction court construed the

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motion to also be filed under Florida Rule of Criminal Procedure 3.800 to extent the motion also raised some claims challenging Petitioner's sentence. After holding an evidentiary hearing, the postconviction court entered an order granting Petitioner's Rule 3.800 motion to the extent the court re-sentenced Petitioner on the attempted sexual battery conviction and corrected the sentencing scoresheet, see Exh. 10, pp. 187-188, but denying Petitioner relief on the other claims. Exh. 10 at 194-209. Petitioner appealed the postconviction court's decision, but the appellate court per curiam affirmed. See Exh. 12 (Petitioner's brief on appeal from order denying his Rule 3.850 motion); Exh. 14 (order per curiam affirming).

Petitioner then filed additional postconviction motions. Exh. 16 (Petitioner's petition for writ of mandamus); Exh. 19 (Petitioner's petition for writ of quo warranto); Exh. 21 (Petitioner's state petition for writ of habeas corpus raising ineffective assistance of appellate counsel); Exh. 25 (Petitioner's second Rule 3.850 motion).4 The state courts either dismissed or denied Petitioner's motions. Petitioner initiated the instant federal § 2254 habeas petition on December 14, 2012.

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III. Applicable § 2254 Law

A. Deferential Review Required By AEDPA

Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S. 782, 792 (2001). Consequently, post-AEDPA law governs this action. Abdul-Kabir, 550 U.S. at 246; Penry, 532 U.S. at 792; Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th Cir. 2007).

Under the deferential review standard, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court 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). Cullen v. Pinholster, 563 U.S. 170, 181 (2011). "This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that the state-court decisions be given the benefit of the doubt." Id. (internal quotations and citations omitted). See also Harrington

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v. Richter, 562 U.S. 86, 102 (2011) (pointing out that "if [§ 2254(d)'s] standard is difficult to meet, that is because it was meant to be.").

Both the Eleventh Circuit and the Supreme Court broadly interpret what is meant by an "adjudication on the merits." Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir. 2011). Thus, a state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits that warrants deference by a federal court. Id.; see also Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Indeed, "unless the state court clearly states that its decision was based solely on a state procedural rule [the Court] will presume that the state court has rendered an adjudication on the merits when the petitioner's claim 'is the same claim rejected' by the court." Childers v. Floyd, 642 F.3d at 969 (quoting Early v. Packer, 537 U.S. 3, 8 (2002)).

"A legal principle is 'clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme] Court." Thaler v. Haynes, 559 U.S. 43, 47 (2010); see also Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)) (recognizing "[c]learly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions

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of the United States Supreme Court at the time the state court issues its decision). "A state court decision involves an unreasonable application of federal law when it identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case, or when it unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context." Ponticelli v. Sec'y, Fla. Dep't of Corr., 690 F.3d 1271, 1291 (11th Cir. 2012) (internal quotations and citations omitted). The "unreasonable application" inquiry requires the Court to conduct the two-step analysis set forth in Harrington v. Richter, 562 U.S. at 86. First, the Court determines what arguments or theories support the state court decision; and second, the Court must determine whether "fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior" Supreme Court decision. Id. (citations omitted). Whether a court errs in determining facts "is even more deferential than under a clearly erroneous standard of review." Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005). The Court presumes the findings of fact to be correct, and petitioner bears the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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B. Federal Claim Must Be Exhausted in State Court

Ordinarily, a state prisoner seeking federal habeas relief must first "'exhaus[t] the remedies available in the courts of the State,' 28 U.S.C. § 2254(b)(1)(A), thereby affording those courts 'the first opportunity to address the correct alleged violations of [the] prisoner's federal rights.'" Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). This imposes a "total exhaustion" requirement in which all of the federal issues must have first been presented to the state courts. Rhines v. Weber, 544 U.S. 269, 274 (2005). "Exhaustion requires that state prisoners 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. That is, to properly exhaust a claim, the petitioner must fairly present every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review." Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) and Castile v. Peoples, 489 U.S. 346, 351 (1989)).

To fairly present a claim, a petitioner must present the same federal claim to the state court that he urges the federal court to consider. A mere citation to the federal constitution in a state court proceeding is insufficient for purposes of exhaustion.

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Anderson v. Harless, 459 U.S. 4, 7 (1983). A state law claim that "is merely similar to the federal habeas claim is insufficient to satisfy the fairly presented requirement." Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam). "'[T]he exhaustion doctrine...

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