Wingate v. Buss, Case No. 3:09cv10/WS/CJK

• Decision Date: 18 July 2011
• Docket Number: Case No. 3:09cv10/WS/CJK
• Parties: KELLY E. WINGATE, JR., Petitioner, v. EDWIN G. BUSS, Respondent.
• Court: U.S. District Court — Northern District of Florida

KELLY E. WINGATE, JR., Petitioner, v. EDWIN G. BUSS,¹Respondent.

Case No. 3:09cv10/WS/CJK

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

Date: July 18, 2011

ORDER and

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (Doc. 1). Respondent filed an answer, submitting relevant portions of the state court record. (Doc. 15). Petitioner has replied. (Doc. 25). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. It is further the opinion of the undersigned that the pleadings and attachments before the court showthat petitioner is not entitled to relief, and that the petition is without merit and should be denied.

BACKGROUND AND PROCEDURAL HISTORY

By Information filed on August 31, 2006, petitioner was charged in the Circuit Court for Walton County, Florida, Case No. 06-CF-607, with trafficking in methamphetamine, 28 grams or more but less than 200 grams (Count One) and possession of drug paraphernalia (Count Two). (Doc. 15, Ex. A).² The offenses were alleged to have occurred on December 26, 2005. (Id.). Also on August 31, 2006, petitioner was charged in a separate case, Walton County Circuit Court Case No. 06-CF-608, with trafficking in methamphetamine, 28 grams or more but less than 200 grams (Count One) and possession of drug paraphernalia (Count Two). Those offenses were alleged to have occurred on December 27, 2005. (Ex. B).

Petitioner executed a written plea agreement with the State on November 28, 2006. The terms of the agreement provided: (1) petitioner would plead nolo contendere to Counts 1 and 2 as charged in Case No. 06-CF-607; (2) petitioner would be adjudicated guilty of those charges; (3) the State would recommend petitioner be sentenced on Count 1 to a mandatory minimum of seven years incarceration, and on Count 2 to time served; and (4) the State would "nol pros" both counts charged in Case No. 06-CF-608. (Doc. 15, Ex. C). At a proceeding held November 28, 2006, petitioner entered pleas of no contest to the charges in Case No. 06-CF-607, and was sentenced in accordance with the terms of the plea agreement. (Ex. D). On November 29, 2006, the State filed "Nolle Prosequi" for Case No. 06-CF-608. (Ex.E). Written judgment and sentence in Case No. 06-CF-607 was rendered December 11, 2006. (Ex. F). Petitioner did not directly appeal the judgment.

On January 10, 2007, petitioner filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, (ex. H), which he later amended (ex. L). The postconviction motion raised two ineffective assistance of counsel claims -that trial counsel was ineffective for advising petitioner to plead no contest without first filing a motion to dismiss the charges on the basis of res judicata, collateral estoppel and judicial estoppel (Ground One), and that counsel was ineffective for failing to file a motion to suppress evidence obtained as a result of statements made by his wife (Ground Two). (Exs. H, L). The trial court denied relief summarily by order rendered April 15, 2008. (Ex. M). The appellate court affirmed without written opinion. Wingate v. State, 992 So. 2d 260 (Fla. 1st DCA 2008) (Table) (copy at Ex. Q). The mandate issued December 22, 2008. (Id.).

Petitioner filed this pro se habeas corpus petition on January 7, 2009. (Doc. 1). He challenges his conviction on one ground - that trial counsel was ineffective for advising him to plead no contest without first moving to dismiss the charges on grounds of res judicata, collateral estoppel and judicial estoppel. (Id.). Respondent concedes the petition is timely. (Doc. 15, p. 6).

STANDARD OF REVIEW

Federal courts may issue habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218-19. In relevant part, § 2254(d) provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not begranted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254 (2006).

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).³ The appropriate test was described by Justice O'Connor as follows:

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).

Employing the Williams framework, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a formal statecourt proceeding, the federal court should first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is "clearly established" only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. Thaler v. Haynes, — U.S. —, 130 S. Ct. 1171, 1173, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec'y for Dep't of Corr., 608 F.3d 1313, 1315 (11th Cir. 2010).

After identifying the governing legal principle(s), the court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. To pass muster, the state court decision need not cite to the Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365, 154 L. Ed. 2d 263 (2002) ("Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases - indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). Only if the state court decision is contrary to clearly established federal law, must the federal habeas court independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 2858, 168 L. Ed. 2d 662 (2007).

If the state court decision is not contrary to clearly established federal law, the federal habeas court must next determine whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was "objectively unreasonable" in light of the record before the state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652,124 S. Ct. 2736, 2737-38, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n.4, 122 S. Ct. 1843, 1851 n.4, 152 L. Ed. 2d 914 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law). An objectively unreasonable application of federal law occurs when the state court "identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case" or "unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). A state court may "decline to apply a specific legal rule that has not been squarely established by [the Supreme Court]" without running afoul of the "unreasonable application" clause. Knowles v. Mirzayance, — U.S.—, 129 S. Ct. 1411, 1419, 173 L. Ed. 2d 251 (2009). "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786-87, 178 L. Ed. 2d 624 (2011).

When faced with a state appellate court's summary affirmance of a trial court's decision, the "unreasonable application" standard focuses on the state court's ultimate conclusion, not the reasoning that led to it. See Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011) (citing Harrington, 131 S. Ct. at 786). The federal court must determine what arguments or theories supported or could have supported the state court's decision, and then ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court. See Harrington, 131 S. Ct. at 786; see also Gill, 633F.3d at 1292 (holding that the federal district court may rely on grounds other than...