Wilson v. Inch

• Decision Date: 26 January 2021
• Docket Number: CASE NO. 19-61879-CIV-RUIZ/STRAUSS
• Parties: RONALD WILSON, Petitioner, v. MARK S. INCH, Secretary, Florida Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Florida

RONALD WILSON, Petitioner, v. MARK S. INCH, Secretary, Florida Department of Corrections, Respondent.

CASE NO. 19-61879-CIV-RUIZ/STRAUSS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

January 26, 2021

REPORT AND RECOMMENDATION

THIS CAUSE is before me on Ronald Wilson's ("Petitioner's") Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (DE 1) and Memorandum of Law in Support of Petition Filed Under 28 U.S.C. § 2254 (DE 3) (collectively, the "Petition"). Specifically, Petitioner challenges his conviction and sentence for one count of delivery of cocaine on grounds of ineffective assistance of trial counsel. (DE 1; DE 3). This matter has been referred to me to take all action as required by law pursuant to 28 U.S.C. § 636(b) and the Magistrate Rules of the Local Rules of the United States District Court for the Southern District of Florida. (DE 11). I have carefully reviewed the Petition, the Response (DE 8), and the record (DE 9; DE 10). Being otherwise duly informed, for the reasons further described below, I respectfully RECOMMEND that the Petition be DENIED.

I. BACKGROUND

Petitioner reported being incarcerated at Charlotte Correctional Institution in Punta Gorda, Florida¹ when he filed his Motion on July 25, 2019. (DE 1; DE 3). According to the summary of facts in Petitioner's memorandum of law, on November 14, 2014, at approximately 10:00 a.m., he was standing in the street with several people when an undercover police officer pulled up in an unmarked vehicle. (DE 1 at 7; DE 3 at 2). Petitioner walked up to the vehicle and asked the officer "what he wanted." (DE 3 at 2). The officer asked in slang to purchase $40 of rock cocaine. (DE 1 at 7; DE 3 at 2). "Petitioner then repeated 40, pointed to someone else and told [the officer] to park . . . down the street." (DE 3 at 2). After parking, the officer observed Petitioner make contact (without exchange of anything) with another person (the "Co-Defendant"), who moved out of sight and then reappeared to approach the officer's vehicle and show the officer rocks of crack cocaine. Id. The officer completed the purchase of the crack cocaine, in exchange for $40, with Co-Defendant. Id. at 3. Approximately four hours later, law enforcement arrested Petitioner and Co-Defendant. Id. The State presented no evidence at trial that Petitioner possessed drugs or currency upon arrest. Id.

On March 10, 2015, Petitioner was charged via information with one count of delivery of cocaine. (DE 9-1 at 8-9). Following a jury trial, on November 25, 2015, Petitioner was convicted on the sole count of delivery of cocaine and sentenced to ten (10) years of imprisonment. (DE 1 at 1; DE 8 at 2; DE 10-1 at 361, 363; DE 10-2 at 5-6).

On November 30, 2015, Petitioner appealed the final orders imposing judgment and sentence to the Fourth District Court of Appeal ("Fourth DCA"), Case No. 4D15-4595. (DE 1 at 3; DE 8 at 2; DE 9-1 at 26, 28-29, 31). On November 10, 2016, the Fourth DCA affirmed per curiam the conviction and sentence. (DE 9-1 at 88). The Fourth DCA issued its Mandate on December 2, 2016. (DE 9-1 at 90).

Pursuant to Florida Rule of Criminal Procedure 3.850, Petitioner filed a motion for postconviction relief on January 11, 2018. (DE 9-1 at 92-110). Petitioner's motion raised five grounds for relief based upon ineffective assistance of trial counsel alleging that counsel: (1) failed to adequately represent him during the plea process; (2) interfered with his right to testify; (3) failed to file a motion to recuse the trial judge; (4) failed to investigate and call a witness; and (5) failed to present any mitigating evidence at sentencing. (DE 9-1 at 92-110). The State filed a response, and, on October 1, 2018, the trial court denied the motion finding that each of the grounds for relief could be "conclusively resolved as a matter of law . . . by reliance on the record." (DE 9-1 at 112-137). On, October 15, 2018, Petitioner's motion for a rehearing was denied. (DE 9-1 at 147-48).

On November 13, 2018, Petitioner appealed the order denying postconviction relief to the Fourth DCA, Case No. 4D18-3445. (DE 9-1 at 150-91). The State responded after the Fourth DCA issued an Order to Show Cause, following which the Fourth DCA affirmed per curiam, on April 4, 2019, the order denying postconviction relief. (DE 9-1 at 193-209). On April 19, 2019, Petitioner requested a rehearing and a written opinion, which the Fourth DCA denied on June 5, 2019. (DE 9-1 at 211-220). The Fourth DCA issued its Mandate on June 28, 2019. (DE 9-1 at 222).

Petitioner now raises four grounds for relief due to ineffective assistance of counsel by alleging that: (1) counsel failed to adequately represent the Petitioner during the plea process; (2) counsel interfered with Petitioner's right to testify; (3) counsel failed to move to recuse the trial court judge; and (4) counsel failed to investigate and call a witness that would have assisted in proving the Petitioner's innocence. (DE 1; DE 3).

II. PRELIMINARY MATTERS

"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). "AEDPA requires that a state prisoner seeking habeas relief under Section 2254 must bring his federal petition within a year from the date that his state conviction becomes 'final,' either by the conclusion of his direct review or the expiration of time to seek such review." Jones v. Sec'y, Fla. Dep't of Corr., 906 F.3d 1339, 1342 (11th Cir. 2018) (citing 28 U.S.C. § 2244(d)(1)(A); Carey v. Saffold, 536 U.S. 214, 216 (2002)). "This one-year statute of limitations will be tolled, however, for '[t]he time during which a properly filed application for State post-conviction or other collateral review' is pending in the state court." Id. (quoting 28 U.S.C. § 2244(d)(2)).

In addition, "the habeas statute requires applicants to exhaust all available state law remedies." Jimenez v. Fla. Dep't of Corr., 481 F.3d 1337, 1342 (11th Cir. 2007) (citing 28 U.S.C. § 2254(b)(1)(A)). AEDPA's limitation period and tolling provision, along with the habeas statute's exhaustion requirement work together to "encourage litigants first to exhaust all state remedies and then to file their federal habeas petitions as soon as possible." Lawrence v. Fla., 549 U.S. 327, 332-33 (2007) (citations and internal quotation marks omitted). Thus, before proceeding to analyze Petitioner's claims on the merits, I address the issues of timeliness and exhaustion.

A. Timeliness

As to the timeliness of the Petition, Respondent states, without waiver of any defenses, that the Petition appears to be timely filed. (DE 8 at 5). I agree that the Petition is timely filed for the reasons set forth below. The time limits for filing an application for habeas relief from a state conviction are set forth in 28 U.S.C. § 2244(d), which provides as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d). Thus, "AEDPA's statute of limitations begins to run when the judgment pursuant to which the petitioner is in custody, which is based on both the conviction and the sentence the petitioner is serving, is final." Vaughan v. Sec'y, Fla. Dep't of Corr., 770 F. App'x 554, 555 (11th Cir. 2019) (per curiam) (quoting Ferreira v. Sec'y, Dep't of Corr., 494 F.3d 1285, 1293 (11th Cir. 2007)). Tolling applies, however, during the time in which "a properly filed application for State post-conviction or other collateral review" of the judgement is pending. 28 U.S.C. § 2244(d)(2).

Here, the Fourth DCA per curiam affirmed Petitioner's judgment and sentence on November 10, 2016. (DE 9-1 at 88). The Florida Supreme Court has held that it lacks jurisdiction over per curiam decisions of Florida's District Courts of Appeal when such decisions are issued without explanation. Jackson v. State, 926 So. 2d 1262, 1266 (Fla. 2006). Further, "direct review cannot conclude for purposes of § 2244(d)(1)(A) until the availability of direct appeal to the state courts and to [the United States Supreme Court] has been exhausted." Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). Therefore, because the Fourth DCA's affirmation of judgment and sentence was not further appealable in the state courts, Petitioner's conviction became final on February 8, 2017, after the 90-day period ended for filing a certiorari petition seeking discretionary review in the United States Supreme Court. Nix v. Sec'y for Dep't of Corr., 393 F.3d 1235, 1236-37 (11th Cir. 2004) (finding a petitioner's conviction final "90 days after the state appeals court affirmed his judgment, i.e., the last day upon which [the petitioner] could file a certiorari petition with the U.S. Supreme...