Ulland v. Comerford
| Decision Date | 26 April 2016 |
| Docket Number | Case No.: 5:15cv111/MW/EMT |
| Parties | GARRY ALAN ULLAND, Petitioner, v. WARDEN R. COMERFORD, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
This cause is before the court on Petitioner's amended petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (ECF No. 10). Respondent filed an answer and relevant portions of the state court record (ECF No. 19). Petitioner filed a reply (ECF No. 22).
The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C) and Fed. R. Civ. P. 72(b). After careful consideration of all issues raised by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief.
The relevant aspects of the procedural background of this case are established by the state court record (see ECF No. 19).1 Petitioner was charged in the Circuit Court in and for Bay County, Florida, Case No. 2009-CF-2652, with one count of second degree murder (Ex. A at 6). Following a jury trial, he was found guilty as charged (Ex. A at 56, Exs. B, C, D, E). On June 24, 2010, Petitioner was sentenced to twenty-five (25) years of imprisonment, with pre-sentence jail credit of 306 days (Ex. A at 62-67).
Petitioner, through counsel, appealed the judgment to the Florida First District Court of Appeal ("First DCA"), Case No. 1D10-3570 (Ex. I). The First DCA affirmed the judgment per curiam without written opinion on October 31, 2011, with the mandate issuing November 16, 2011 (Exs. K, PD2). Ulland v. State, 73 So. 3d 765 (Fla. 1st DCA 2011) (Table). Petitioner did not seek further review.
On March 11, 2012, Petitioner filed a petition for writ of habeas corpus in the First DCA, Case No. 1D12-1177 (Ex. L). On March 28, 2012, the First DCAdismissed the petition, citing Baker v. State, 878 So. 2d 1236 (Fla. 2004) () (Exs. M, PD2). Ulland v. State, 135 So. 3d 298 (Fla. 1st DCA 2012) (Mem). The First DCA denied Petitioner's motion for rehearing on May 24, 2012 (id.).
On March 21, 2012, Petitioner filed a motion for post-conviction relief in the state circuit court, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. N at 1-68). In an order rendered June 5, 2012, the state circuit court struck the motion as facially insufficient, without prejudice to Petitioner's filing an amended motion within thirty days (id. at 69). Petitioner filed an amended motion on June 19, 2012 (id. at 74-94). In an order rendered August 21, 2012, the state circuit court again struck the motion as facially insufficient, without prejudice to Petitioner's filing an amended motion within thirty days (id. at 95-96). Petitioner filed a second amended motion on September 13, 2012 (id. at 97-130). Petitioner then sought leave to amend his second amended Rule 3.850 motion, and the court granted his request (id. at 133-37). Petitioner filed a third amended Rule 3.850 motion on April 2, 2013 (id. at 144-64). In an order rendered June 18, 2013, the state circuit court struck the amendment as facially insufficient, without prejudice to Petitioner's filing an amended motion within thirty days (id. at 180-81). Petitioner filed a fourth amended Rule 3.850 motion on July 4, 2013 (Ex. O at 185-288). The state circuit court denied the motion in part on November 26 2013, and directed the State to respond to two claims (id. at 294-316). Following the State's response, the circuit court entered a final order denying the fourth amended Rule 3.850 motion (Ex. R at 685-92). Petitioner appealed the decision to the First DCA, Case No. 1D14-2431 (Ex. S). The First DCA affirmed the decision per curiam without written opinion on January 22, 2015, with the mandate issuing February 17, 2015 (Exs. U, PD2). Ulland v. State, 156 So. 3d 1085 (Fla. 1st DCA 2015) (Table). Petitioner sought review in the Supreme Court of Florida, Case No. SC15-520 (Exs. V, PD2). On March 24, 2015, the state supreme court dismissed the petition for lack of jurisdiction (id.). Ulland v. State, 163 So. 3d 516 (Fla. 2015).
During the pendency of the Rule 3.850 proceeding, Petitioner filed a petition for writ of habeas corpus in the First DCA, Case No. 1D13-4133, alleging ineffective assistance of appellate counsel (Ex. W). The First DCA denied the petition on the merits on September 13, 2013 (Exs. X, PD2). Ulland v. State, 121 So. 3d 1140 (Fla. 1st DCA 2013) (Mem). The court denied Petitioner's motion for rehearing on January 17, 2014 (id.). Petitioner sought review in the Supreme Court of Florida, Case No. SC14-187, but the state supreme court dismissed the petition for lack of jurisdiction (Exs. Y, PD2). Ulland v. State, 134 So. 3d 452 (Fla. 2014) (Table).
On March 2, 2014, still during the pendency of the Rule 3.850 proceeding, Petitioner filed a "'Pre-hearing discovery 3.850 et seq. of (h)' Motion to Compel Production of Police Reports" (Ex. Z at 1-37). The state circuit court construed the motion as a petition for writ of mandamus, seeking an order compelling the State Attorney's Office and the Bay County Sheriff's Office to produce, pursuant to Florida's Public Records Act, certain records and police reports related to Petitioner's criminal case (id. at 38-39). On April 7, 2014, the state circuit court dismissed the mandamus petition without prejudice (id.). Petitioner appealed the decision to the First DCA, Case No. 1D14-2040 (Ex. Z at 40-42; Ex. AA). The First DCA affirmed the decision per curiam without written opinion on November 4, 2014, with the mandate issuing January 16, 2015 (Exs. CC, PD2). Ulland v. State, 155 So. 3d 344 (Fla. 1st DCA 2014) (Table). Petitioner sought review in the Supreme Court of Florida, Case No. SC15-172 (Ex. DD). On February 3, 2015, the state supreme court dismissed the petition for lack of jurisdiction (Exs. DD, PD2). Ulland v. State, 160 So. 3d 901 (Fla. 2015) (Table).
Petitioner filed the instant federal habeas action on May 19, 2015 (ECF No. 1).
After Petitioner filed his § 2254 petition, he filed a motion to correct illegal sentence in the state circuit court, pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure (Ex. GG). The circuit court summarily denied the motion in an order rendered November 23, 2015 (Ex. HH). Petitioner appealed the decision to the First DCA, Case No. 1D15-5625, but the First DCA affirmed the decision per curiam without written opinion on February 9, 2016. Ulland v. State, No. 1D15-5625, 2016 WL 510225 (Fla. 1st DCA Feb. 9, 2016) (unpublished).
Section 2254(a) of Title 28 provides that "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" upon a showing that his custody is in violation of the Constitution or laws of the United States. As the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for habeas review of state court decisions under § 2254 as brought about by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104-132, § 104, 110 Stat. 1214, 1218-19. In relevant part, section 2254(d) now provides:
28 U.S.C. § 2254 (2002).
The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).2 The appropriate test was described by Justice O'Connor as follows:
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.
Id., 529 U.S. at 412-13 (O'Connor, J., concurring); Ramdass v. Angelone, 530 U.S. 156, 120 S. Ct. 2113, 147 L. Ed. 2d 125 (2000). In employing this test, the Supreme Court has instructed that on any issue raised in a...
To continue reading
Request your trial