Turbi v. Sec'y, Case No. 18-cv-40-T-33CPT
| Decision Date | 09 August 2018 |
| Docket Number | Case No. 18-cv-40-T-33CPT |
| Parties | STEVEN TURBI, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Steven Turbi, a Florida inmate, timely filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and supporting memorandum (Doc. 2) challenging his Polk County convictions. Respondent filed a response (Doc. 8) and Turbi filed a reply (Doc. 12). Upon review, the petition is DENIED.
Turbi was convicted after a jury trial of burglary while armed and with an assault and battery; robbery with a deadly weapon; possession of cannabis; and possession of drug paraphernalia. (Doc. 11, Ex. 3). The state trial court sentenced him to 20 years in prison. (Doc. 11, Ex 4). The state appellate court affirmed the convictions and sentences in a written opinion. Turbi v. State, 171 So.3d 787 (Fla. 2d DCA 2015). Turbi filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 11, Ex. 11). The state postconviction court summarily denied the motion, and the state appellate court per curiam affirmed the denial of relief. (Doc. 11, Exs. 12, 14).
Turbi's second postconviction motion, filed while his initial collateral appeal was pending, was dismissed by the state postconviction court. (Doc. 11, Exs. 16, 17). The state appellate court per curiam affirmed the dismissal. (Doc. 11, Ex. 19). Turbi's third postconviction motion was denied as successive. (Doc. 11, Exs. 21, 22). The state appellate court per curiam affirmed the denial. (Doc. 11, Ex. 23).
Atiya Sampson-Davis managed a restaurant inside the Stonegate Golf Club. On the night of December 7, 2012, she was counting money in her office after closing. She heard a knock at the office's exterior door. Expecting the banquet manager to bring her cash, Sampson-Davis replied for the person at the door to come in. When no one entered, she opened the door to find two masked men with firearms. They came into the office, where one man held a gun to her head while the other took money from her desk and a safe. After they left, she called 911.
Sampson-Davis told police that she recognized a tattoo on the arm of the man who took the money. She said a former employee, Steven Turbi, had the same tattoo. During his employment, she had asked Turbi about the tattoo and, as his supervisor, had admonished him to cover it in accordance with the restaurant's policies. She further told police that both perpetrators were dressed in black clothing.
Police established a perimeter around the area. Deputy Kevin Schuttler saw Turbiwalking approximately one to two miles away from the restaurant. He was wearing black clothing, appeared sweaty, and had vegetation stuck to his pants legs. After obtaining Turbi's name and observing the tattoo on his arm, Deputy Schuttler detained Turbi and found a bag containing marijuana on his person. After Turbi's apprehension, police continued to search for his accomplice. A police dog tracked about half a mile from the restaurant before losing the scent. Turbi's accomplice was never arrested.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:
A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by Court on a question of law or if the state court decides a case differently than Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from Court's decisions but unreasonablyapplies that principle to the facts of the prisoner's case." Id. at 413.
The AEDPA was meant "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). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) ().
The state appellate court affirmed the denial of postconviction relief without discussion. This decision warrants deference under § 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. 2002). See also Richter, 562 U.S. at 99 (). When a state appellate court issues a silent affirmance, "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Turbi contends that his conviction and sentence for burglary are illegal because the charging document referenced "the previous statutory language of Section 810.02", Fla. Stat. (Doc. 1, p. 5). The charging document alleges that:
STEVEN TURBI on or about December 7, 2012, in the County of Polk and State of Florida, did knowingly enter or remain in a structure, the property of ATIYA SAMPSON-DAVIS, while armed with a handgun, a dangerous weapon, or in the course of committing the burglary made an assault or battery upon ATIYA SAMPSON-DAVIS with the intent to commit an offense therein, contrary to Florida Statute 810.02.
(Doc. 11, Ex. 1, p. 12) (emphasis added).
Turbi claimed in his postconviction motion that "[t]he above statutory language or remain in does not apply to Turbi because the language is only applicable to crimes of burglary committed on or before July 1, 2001." (Doc. 11, Ex. 11, p. 19) (emphasis in original).2 The state court denied Turbi's claim, finding that "[t]he alleged error does notcreate a fundamental defect, and most certainly does not show the Defendant was charged with a non-existent crime." (Doc. 11, Ex. 12, p. 42).
Preliminarily, Turbi's claim is not cognizable because he does not clearly allege a federal constitutional violation. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.1988) (). Even if Turbi's claim is interpreted as raising a federal constitutional challenge to the validity of his conviction, and assuming the federal claim was exhausted in state court, Turbi's claim remains uncognizable. To raise a cognizable federal habeas claim alleging an error in a state court charging document, the charging document must be so defective that it deprives the court of jurisdiction. See DeBenedictis v. Wainwright, 674 F.2d 841, 842 (11th Cir. 1982) ().
Turbi has not made this showing. Florida law provides that state circuit courts have jurisdiction over felony cases. § 26.012(2)(d), Fla. Stat. The information identified Turbi and the victim, described the date and location of the offense, and cited the burglary statute, thereby placing Turbi on notice of the burglary charge. (Doc. 11, Ex. 1, p. 12). Turbi does not allege that the information omitted an element of burglary. See, e.g., Figueroa v. State, 84 So.3d 1158, 1161 (Fla. 2d DCA 2012) ().
The information also contains the required oath of the Assistant State Attorney certifying that the allegations in the information "are based upon facts that have been sworn to as true, and which, if true, would constitute the offense therein charged," and that "testimony under oath has been received from the material witness or witnesses for the offense." (Doc. 11, Ex. 1, p. 14). See Fla. R. Crim. P. 3.140(g) (). Turbi has not established that the testimony presented to the prosecutor was insufficient to support the charging document. Therefore, he does not show any defect in the charging document that deprived the state court of jurisdiction so as to raise a cognizable claim on federal habeas review. Turbi is not entitled to relief on...
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