Whittier v. Sec'y, Fla. Dep't of Corr.
| Decision Date | 05 March 2013 |
| Docket Number | Case No. 3:10-cv-166-J-34JBT |
| Parties | STEPHEN ALLEN WHITTIER, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner Stephen Allen Whittier, an inmate of the Florida penal system, initiated this action by filing a pro se Petition for Writ of Habeas Corpus (Doc. #1) with exhibits (P. Ex.) under 28 U.S.C. § 2254 on February 22, 2010, pursuant to the mailbox rule. Whittier filed an Amended Petition (Doc. #6) on May 5, 2010. Whittier challenges a 2004 state court (Duval County, Florida) judgment of conviction for armed robbery and possession of a short-barreled shotgun. Respondents submitted a memorandum in opposition to the Amended Petition on December 28, 2012. See Respondents'Answer to Petition for Writ of Habeas Corpus (Response) (Doc. #40) with exhibits (Resp. Ex.). Whittier submitted a brief in reply on February 22, 2013. See Petitioner's Reply Brief (Doc. #48). This case is ripe for review.
On August 1, 2002, the State of Florida charged Stephen Allen Whittier with armed robbery (count one) and possession of a short-barreled shotgun (count two). Resp. Ex. 1, Information. The State, on August 16, 2002, gave notice that it had provided the defense with the bank's videotape. Resp. Ex. 31, State's First Supplemental Discovery Exhibit. Upon Whittier's motion for an expert witness to assist in preparation of a defense, the court appointed Community Behavioral Services to examine Whittier in order to assist the defense in the preparation of its case. Resp. Ex. 32, Orders Appointing Expert to Examine Defendant, dated August 28, 2002, and September 10, 2002.
On September 11, 2002, Dr. Larry Neidigh, Ph.D., a licensed psychologist with Community Behavioral Services, opined that Whittier was not competent to proceed and that the issue of his sanity at the time of the offense "should be deferred until his current condition is stabilized." Resp. Ex. 33. Based on Dr. Neidigh's report, the court, on October 4, 2002, adjudged Whittier incompetent to proceed and committed him to the custody of the Department of Children and Families (DCF) for treatment. Resp. Ex.2, Order Adjudging Defendant Incompetent to Proceed and Commitment to Department of Children and Families.
Six months later, relying upon the competency evaluation of Dr. Marcellus Taylor, Ph.D., Senior Psychologist at Florida State Hospital, DCF notified the court that Whittier was competent to proceed and no longer met the criteria for involuntary commitment. Resp. Ex. 19, attached exhibit Q, Letter, dated March 27, 2003; Competency Evaluation, dated March 26, 2003.1 Accordingly, on April 17, 2003, Whittier was discharged from involuntary commitment. Resp. Ex. 34, Notice of Discharge, Florida State Hospital.2
On April 25, 2003, upon Whittier's motion, the court appointed Dr. Ernest Miller, M.D., to examine Whittier in order to assist the defense in the preparation of its case. Resp. Ex. 35, Order Appointing Expert to Examine Defendant and Report to Defendant's Attorney. After examining Whittier over a period from April 29, 2003, through May 23, 2003, Dr. Ernest Miller, M.D., opined that Whittier was competent to proceed. See Resp. Ex. 19, attachedexhibit O, Letter, dated July 28, 2003.3 Then, on August 27, 2003, the court referred Whittier for a psychiatric evaluation by Dr. Umesh M. Mhatre, M.D. Resp. Ex. 36, Order Appointing Expert to Examine Defendant and Report to Defendant's Attorney.
Dr. Mhatre examined Whittier on September 1, 2003, and concluded that Whittier was competent to proceed to trial and was sane at the time of the offense. Resp. Ex. 19, attached exhibit P, Report, dated September 1, 2003.4 Based upon Dr. Mhatre's report, the defense and the State stipulated to Whittier's competency, and the court adjudged Whittier competent to stand trial and assist his attorney in preparation of the defense. Resp. Exs. 3, Transcript of November 6, 2003 Hearing; 4, Order Adjudging Defendant Mentally Competent, filed November 6, 2003. The court, on March 5, 2004, appointed Dr. Harry Krop to examine Whittier. Resp. Ex. 37, Order Appointing Expert to Examine Defendant and Report to Defendant's Attorney.
On March 25, 2004, the court granted Whittier's motion for continuance. Resp. Ex. 38. That same day, in addition to the previously-charged counts, the State of Florida charged Whittier with an additional count: possession of a concealed weapon by a convicted felon (count three). Resp. Ex. 5, Amended Information.On May 5, 2004, Whittier filed a motion to sever count three from the trial of counts one and two. Resp. Ex. 6, Motion for Severance of Counts. On June 1, 2004, the court granted Whittier's motion for severance. Id., Order; Resp. Ex. 39, Transcript. Additionally, on June 1, 2004, the State filed its first motion in limine, seeking to prohibit Whittier from presenting evidence of a mental health defense or voluntary intoxication. Resp. Ex. 40, State's First Motion in Limine. After hearings on June 1st and 29th, the court granted the State's motion. Resp. Exs. 39, Transcript; 40, Order.
After jury selection, Whittier proceeded to trial on counts one and two. Resp. Exs. 29; 29A, Transcripts of the Jury Trial (Tr.). At the conclusion of trial, a jury found Whittier guilty of both counts. Resp. Ex. 7, Verdicts, dated September 16, 2004; Tr. at 453-54. The court denied Whittier's motion for a new trial. Resp. Exs. 41; 42, Transcript of Sentencing (Sentencing Tr.). On November 1, 2004, the trial court sentenced him to a term of twenty years of imprisonment for count one and a term of fifteen years of imprisonment for count two, such term to run concurrently to the sentence imposed for count one. Sentencing Tr. at 219-21; Resp. Ex. 8, Judgment.
On February 28, 2005, Whittier, through counsel, filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). He asserted that the courtimproperly enhanced his sentence on count one based upon the aggravating circumstance that he possessed a firearm during the commission of the armed robbery and that the jury was not instructed that they must find the aggravator beyond a reasonable doubt. Resp. Ex. 43. The court denied the motion on April 19, 2005. Resp. Ex. 44.
On appeal, Whittier, through counsel, filed an Initial Brief, arguing that the trial court committed fundamental error in failing to hold a competency hearing when Whittier had been previously adjudicated incompetent to proceed to trial (ground one); the trial court erred in excluding Dr. Miller's expert testimony, which was proffered by Whittier to show that he had suffered from metabolic acidosis at the time of the offense (ground two); the trial court erred in sustaining the State's hearsay objection to Detective Valentine's testimony that the victim described the suspect as wearing a long brown leather holster under his shirt (ground three); and the trial court erred in denying Whittier's Rule 3.800(b)(2) motion, in which he argued that the "beyond a reasonable doubt" standard to the firearm finding violated Apprendi v. New Jersey, 530 U.S. 466 (2000), (ground four). Resp. Ex. 45, Initial Brief of Appellant. The State filed an Answer Brief, see Resp. Ex. 46, and Whittier filed a Reply Brief, see Resp. Ex. 47. On September 30, 2005, the appellate court affirmed Whittier's conviction and sentence per curiam without issuing a writtenopinion, see Whittier v. State, 912 So.2d 1222 (Fla. 1st DCA 2005); Resp. Ex. 10, and the mandate issued on October 18, 2005, see Resp. Ex. 10. Whittier did not seek review in the United States Supreme Court.
On December 14, 2006, Whittier, through counsel, filed a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.5 Resp. Ex. 11. In his request for post conviction relief, he asserted that defense counsel was ineffective because she failed to: pursue an involuntary intoxication defense based on Whittier's metabolic acidosis (ground one); contest Whittier's competency to proceed to trial (ground two); and object to the trial court's jury instructions regarding whether Whittier actually carried a firearm (ground three). Additionally, Whittier asserted that the jury instructions did not require the jury to find beyond a reasonable doubt that he had carried a firearm during the robbery. That same day, Whittier, through counsel, filed a motion for competency determination, see Resp. Ex. 12, and motion seeking ninety days to amend the Rule 3.850 motion, see Resp. Ex. 13. Later, Whittier, through counsel, filed additional motions seeking extensions of time to amend the Rule 3.850 motion. Resp. Exs. 14; 15.
On October 12, 2007, Whittier, through counsel, filed an amended Rule 3.850 motion. Resp. Ex. 16. In his request for post conviction relief (Rule 3.850 motion), he asserted that defense counsel was ineffective because she failed to: pursue an involuntary intoxication defense based on Whittier's metabolic acidosis and request an involuntary intoxication jury instruction (ground one); introduce the bank video which would have established that Whittier was not armed during the robbery (ground two); contest Whittier's competency to proceed to trial (ground three); and object to the trial court's jury instructions regarding whether Whittier actually carried a firearm (ground four). Additionally, Whittier asserted that the jury instructions did not require the jury to find beyond a reasonable doubt that he had carried a firearm during the robbery. Whittier, on July 16, 2008, filed a motion to direct the State to respond to the motion. Resp. Ex. 17. The circuit court, on September 16, 2008, denied Whittier's motion for a competency determination, see Resp. Ex. 18, and denied his amended Rule 3.850 motion, see Resp. Ex. 19; the court later denied his motion for rehearing, see Resp. Ex. 20; 21.
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