Washington v. Inch

• Decision Date: 08 April 2019
• Docket Number: Case No. 1:18cv001-MW/CAS
• Parties: PHILLIP WASHINGTON, Petitioner, v. MARK S. INCH. Secretary, Florida Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Florida

PHILLIP WASHINGTON, Petitioner, v. MARK S. INCH. Secretary,Florida Department of Corrections, Respondent.

Case No. 1:18cv001-MW/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

April 8, 2019

REPORT AND RECOMMENDATION

On December 22, 2017, Petitioner Phillip Washington, a state inmate proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On January 16, 2018, he filed an amended § 2254 petition. ECF No. 5. On October 29, 2018, Respondent filed an answer and exhibits. ECF No. 17. Petitioner filed a reply. ECF No. 24.

The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After consideration of all issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons stated herein, the pleadings and attachments before the Court show Petitioner is not entitled to federal habeas relief, and the amended § 2254 petition should be denied.

Background and Procedural History

On June 27, 2011, by fourth amended information filed in Alachua County Circuit Court case number 01-2010-CF-002583-A/B, the State of Florida charged Petitioner Phillip Washington with six counts in connection with events that occurred on or about June 30, 2010: (1) attempted first degree murder (victim: Meena R. Narielwala) while carrying and discharging a firearm, contrary to sections 782.04(1)(a), 775.087(2)(a), and 777.04(1), Florida Statutes; (2) attempted first degree murder (victim: Rajendrakumar Narielwala) while carrying and discharging a firearm, contrary to sections 782.04(1)(a) and 777.04(1), Florida Statutes; (3) attempted felony murder (victim: Meena R. Narielwala) while carrying and discharging a firearm, contrary to sections 782.0051(1) and 775.087(2)(a)2., Florida Statutes; (4) attempted felony murder (victim: Rajendrakumar Narielwala) while carrying and discharging a firearm, contrary to sections 782.0051(1) and 775.087(2)(a)2., Florida Statutes; (5) attempt to commit robbery while armed with a firearm, in violation of sections 812.13(2)(a), 775.087(2)(a), 777.04(4)(d), Florida Statutes; and (6) actual possession of a firearm during the commission of an offense, contrary to sections 790.23(1) and 775.087(2), Florida Statutes. Ex. A at 32-34.¹ Washington proceeded to a jury trial on August 18 and 19, 2011, during which several witnesses testified. Exs. B-F. Washington did not testify during the trial. Ex. F at 447-48. The jury returned a verdict finding him guilty of the lesser included offense of attempted second degree murder on both Counts 1 and 2, and guilty as charged on Counts 3, 4, and 5. Ex. A at 65-68; Ex. F at 541-45.

At a hearing held August 25, 2011, the judge adjudicated Washington guilty and sentenced him to a total of sixty (60) years in prison. Ex. C at 229. In specifically pronouncing the sentence, however, the judge imposed, on Counts 3 and 4, consecutive minimum mandatory terms of twenty (20) years in prison, as well as a concurrent minimum mandatory term of twenty (20) years in prison on Count 5, and then indicated "[s]o that's a total of 60 years as a minimum mandatory." Id. The judge dismissed Counts 1 and 2 based on the prohibition against double jeopardy. Id. at 226. Count 6 was nolle prossed. See id. at 226.

The judge entered a written judgment and sentence the same day. Ex. A at 72-80. The written sentence reflected the imposition of 20-year prison terms on each of Counts 3 and 4, to run consecutively, as well as a 20-year prison term on Count 5, to run concurrent with the sentence on Count 4. Id. at 73-77. On the Rule 3.992(b) Supplemental Criminal Punishment Code Scoresheet, the judge indicated the total sentence imposed as 60 years. Id. at 85.

In an order rendered September 12, 2011, the court sua sponte determined the written sentence did not accurately reflect the sentence imposed. Id. at 91-92. The judge explained, "It was the intent of this Court, as reflected in the record, to impose a total sentence of 60 years imprisonment." Id. at 91. Accordingly, the judge wanted "to clarify the sentence which was imposed and to correct the written sentence" and directed:

The Clerk of Court shall amend the sentence on Count V in the above-captioned case, nunc pro tunc August 25, 2011, by amending the sentence to reflect that i[t] runs consecutive to the sentence imposed on Count IV. The sentence shall remain the same in all other respects.

Id. at 91-92. The amended sentence was entered September 19, 2011, nunc pro tunc August 25, 2011. Id. at 97-103.

Washington appealed his judgment and sentence to the First District Court of Appeal (First DCA), assigned case number 1D11-5025. See Exs. I (Initial Brief), J (Answer Brief), K (Reply Brief). On August 29, 2013, the First DCA per curiam affirmed the case without a written opinion. Ex. L; Washington v. State, 119 So. 3d 1253 (Fla. 1st DCA 2013) (table).

While the appeal was pending, Washington, through counsel, filed a Motion to Correct Sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Ex. H at 1-5. In this motion, Washington argued the trial court, without notice to the parties and after he had begun serving his sentence, had amended the judgment and sentence to reflect that the sentence on Count V was to run consecutively to the sentence on Count IV. Id. at 2. Washington argued the court had acted in violation of the double jeopardy provisions of the U.S. and Florida Constitutions, specifically citing Ashley v. State, 850 So. 2d 1265 (Fla. 2003). Id. at 2-3. By order rendered May 22, 2012, the state trial court denied Washington's motion to correct sentence. Id. at 10-12.

On August 27, 2014, Washington filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Ex. N at 1-33. By order rendered March 14, 2014, the state post-conviction trial court summarily denied relief. Id. at 37-48 (exclusive of attachments). Washington appealed to the First DCA, assigned case number 1D16-1629, and he did not file a brief. Ex. N at 199-200; Ex. O. The First DCA issued an order pursuant to Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986), directing the State to show cause why the summary denial of the second ground should not be reversed. Ex. P. The State filed a response. Ex. Q. On October 4, 2016, the First DCA issued an opinion affirming in part, reversing in part, and remanding the case for further proceedings, specifically the denial of Ground 2(D) and part of Ground 2(E). Ex. R; Washington v. State, 200 So. 3d 1287 (Fla. 1st DCA 2016).

On remand, the state post-conviction trial court again summarily denied relief in an order rendered November 1, 2016. Ex. S at 214-18. Washington appealed to the First DCA, assigned case number 1D16-5335, and he did not file a brief. Id. at 262, 263-64; Ex. T. On June 5, 2017, the First DCA per curiam affirmed the case without a written opinion. Ex. T; Washington v. State, 231 So. 3d 1239 (Fla. 1st DCA 2017). The mandate issued July 5, 2017. Ex. T.

In the meantime, on February 28, 2017, Washington filed a Motion for Resentencing. Ex. U at 25-27. The state court considered the motion as one filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and denied it by order rendered March 16, 2017. Id. at 38-40. Washington appealed to the First DCA, assigned case number 1D17-1889. Id. at 62; Ex. V. On September 25, 2017, the First DCA per curiam affirmed the case without a written opinion. Ex. V; Washington v. State, 234 So. 3d 669 (Fla. 1st DCA 2017). The mandate issued October 23, 2017. Ex. V.

As indicated above, on December 22, 2017, Washington filed a § 2254 petition in this Court. ECF No. 1. He subsequently filed an amended petition. ECF No. 5. He raises seven grounds, including four alleging ineffective assistance of counsel (IAC):

(1) Trial Court Error - Confrontation/Due Process: "Washington was denied his right of confrontation and due process under the 6th amendment to the U.S. Constitution by failing to provide a constitutionally adequate interpreter and interpretation of the Hindu victims." Id. at 3.

(2) Trial Court Error - Double Jeopardy: "Washington's right to protection from double jeopardy under the 6th Amendment of the U.S. Constitution was violated when the trial court sentenced him." Id. at 4.

(3) IAC - Double Jeopardy: "Washington was denied his rights to effective assistance of counsel as guaranteed under the 6th and 14th Amendments to the U.S. Constitution when counsel failed to strike the information based on double jeopardy violations." Id. at 5.

(4) IAC - Cumulative: "Washington was denied his right to effective assistance of counsel as guaranteed under the 6th and 14th amendments to the U.S. constitution based on cumulative effect of counsel deficient performances." Id. at 6.

(5) IAC - Prosecutorial Misconduct: "Washington was denied his right to effective assistance of counsel as guaranteed under the 6th and 14th Amendments to the U.S. Constitution when counsel neither made objections and/or moved for mistrial based on prosecutorial misconduct." Id. at 8.

(6) IAC - Double Jeopardy: "Washington was denied his right to effective assistance of counsel as guaranteed under the 6th and 14th Amendments to the U.S. Constitution when at sentencing counsel failed to move the court for mistrial upon discovering double jeopardy violations." Id. at 9.

(7) Trial Court Error - Jury Instruction: "Washington was denied due process rights under the 6th Amendment to the U.S. Constitution when the trial court failed to instruct the jury of an essential element of attempted felony murder." Id. at 11.

Respondent filed an answer, with exhibits. ECF No. 17. Washington has filed a reply. ECF No. 24.

Analysis

Pursuant to 28 U.S.C. § 2254, as amended by the...