CHARLENE EDWARDS HONEYWELL, District Judge.
Petitioner, a state of Florida inmate proceeding pro se, initiated this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1). Petitioner challenges his convictions for armed burglary of a conveyance with assault or battery, false imprisonment, and possession of cannabis, entered in 2007 in the Thirteenth Judicial Circuit, Hillsborough County, Florida. Upon review, the petition must be denied.
The State of Florida charged Petitioner with armed burglary of a conveyance with assault or battery (count one), false imprisonment (count two), battery (count three), and possession of cannabis (count four). A jury convicted Petitioner of counts one and two but found him not guilty of count three. Petitioner entered a plea of guilty to count four. Petitioner was sentenced to life imprisonment on count one, five years' imprisonment on count two, and 364 days' imprisonment on count four.
Petitioner's convictions and sentences were per curiam affirmed by the Second District Court of Appeal on October 26, 2007. Boles v. State, 967 So.2d 913 (Fla. 2d DCA 2007) (table). Petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, as well as several amendments to his motion. After conducting an evidentiary hearing on numerous claims, the state court entered its final order denying Petitioner's Rule 3.850 motion on May 20, 2011. (Dkt. 13, Ex. 17.) Petitioner did not appeal the order of denial.
While his Rule 3.850 motion was pending, Petitioner filed two petitions for writ of habeas corpus in the Second District Court of Appeal. (Dkt. 13, Exs. 10, 18.) That court denied his petitions. (Dkt. 13, Exs. 11, 19.) Petitioner filed his federal habeas petition when he provided it to prison officials for mailing on December 9, 2011. Respondent filed its response (Dkt. 12) on May 1, 2012, and Petitioner filed his reply (Dkt. 15) on May 24, 2012.
Although not addressed in the parties' pleadings, this habeas petition appears to be timely under the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). That section provides a one-year statute of limitations for filing a habeas petition seeking relief from a state court judgment under 28 U.S.C. § 2254. This one-year period "shall run from the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . ." 28 U.S.C. 2244(d)(1)(A). The statute of limitations is tolled for "[t]he 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. . . ." 28 U.S.C. 2244(d)(2).
Petitioner's convictions were affirmed on appeal on October 26, 2007. His convictions therefore became final on January 24, 2008, at the conclusion of the ninety-day period to petition the United States Supreme Court for a writ of certiorari. See Bond v. Moore, 309 F.3d 770 (11th Cir. 2002); Sup. Ct. R. 13.3. Fifty-three days of un-tolled time passed until Petitioner's first Rule 3.850 motion was filed when he provided it to prison officials for mailing on March 17, 2008. His postconviction motion remained pending until the state court's final order denying his Rule 3.850 motion was filed on May 20, 2011. Under state procedural rules, Petitioner had thirty days to appeal the order of denial. See Fla. R. App. R. 9.110(b); 9.141(b)(1); Fla. R. Crim. P. 3.850(k). He did not do so. The federal habeas clock therefore began to run again on June 20, 2011. Another 173 days of un-tolled time passed until Petitioner filed his habeas petition on December 9, 2011, for a total of 226 days of un-tolled time.
This petition is subject to the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") effective April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) sets forth a highly deferential standard for federal court review of a state court's findings of law and fact. It provides that habeas relief may not be granted on a claim adjudicated on the merits in state court unless such determination:
28 U.S.C. § 2254(d)(1)-(2).
The Supreme Court has explained the deferential review of a state court's findings:
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court's factual findings must also be given deference. Specifically, a state court's determinations of fact "shall be presumed to be correct," and the habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Henderson v. Campbell, 353 F.3d 880, 890-91 (11th Cir. 2003).
In order to pursue federal habeas relief, a state prisoner must exhaust every available state court remedy for challenging his conviction. 28 U.S.C. § 2254(b)(1). "[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A federal habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State. . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c); Pruitt v. Jones, 348 F.3d 1355, 1358 (11th Cir. 2003).
To exhaust state remedies, a petitioner must make the state court aware of both the legal and factual bases for his claim. A petitioner must "fairly present" his federal claim in state court. Duncan v. Henry, 513 U.S. 364, 365 (1995). "To present a federal constitutional claim properly in state court, `the petitioner must make the state court aware that the claims asserted present federal constitutional issues.'" Zeigler v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003) (quoting Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)).
"[T]he prohibition against raising nonexhausted claims in federal court extends not only to broad legal theories of relief, but also to the specific assertions of fact that might support relief." Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004). Exhaustion therefore requires that the petitioner present the state court with the particular legal basis for relief, as well as the facts supporting the claim. See Snowden, 135 F.3d at 735.
The doctrine of procedural default provides that "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). See also O'Sullivan, 526 U.S. at 848; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999).
Petitioner argues that the state court erred when it did not rule on the merits of his amended postconviction claims. He asserts that this violated his due process and equal protection rights. The record reflects that, after filing his initial Rule 3.850 motion, Petitioner also filed a motion to amend, as well as an amended Rule 3.850 motion, on October 16, 2008. (Dkt. 13, Ex. 9.) Petitioner next filed a Supplementation of Amended Motion for Post Conviction Relief on December 28, 2009. (Dkt. 13, Ex. 12.)
In an order filed August 6, 2010, the state court granted Petitioner's motion for leave to amend and considered his amended Rule 3.850 motion along with his initial Rule 3.850 motion. The court granted an evidentiary hearing on four of Petitioner's claims, and reviewed and denied his remaining four claims. (See Dkt. 13, Ex. 13.)
In the same order, the court denied the claims raised in Petitioner's December 28, 2009 Supplementation of Amended Motion for Postconviction Relief as untimely in accordance with state law. Specifically, the court noted that, under Florida law, "a defendant is not permitted to amend his or her motion for post-conviction relief after expiration of the two-year limitations period, where the amendment seeks to add new grounds rather than cure a deficiency. See Richardson v. State, 890 So.2d 1197 (Fla. 5th DCA 2005)." (Dkt. 13, Ex. 13, p. 14.) The court found that because Petitioner's supplemental pleading contained only new claims and was filed after the two-year period to timely file a motion for postconviction relief under Rule 3.850 had expired, the claims were untimely.
In Ground One of his habeas petition, Petitioner appears to reference both his amended postconviction motion, as well as his Supplementation of Amended Motion for Postconviction Relief. Based on the state court's consideration of the claims raised in Petitioner's amended Rule 3.850 motion, however, it appears that Ground One concerns the arguments raised in his Supplementation of Amended Motion for Postconviction Relief, which the state court did not review on the merits.
In denying the postconviction claims as untimely, the state court relied on Florida law providing that a Rule 3.850 motion cannot be supplemented with new claims after the two-year period to file a motion under that rule has expired. Thus, the state court's disposition of the postconviction claims upon an independent and adequate state procedural ground renders the argument presented in Ground One procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) ("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."). Petitioner does not argue or demonstrate that either the cause and prejudice or fundamental miscarriage of justice exception would apply to excuse his procedural default.
Petitioner argues that the state court violated his constitutional rights when it erroneously enhanced his sentence for count one based upon "unfounded aggravators." He further asserts that this subjected him to double jeopardy. Petitioner was found not guilty of count three, battery. He was found guilty of count one, armed burglary of a conveyance with assault or battery. Petitioner argues that because he was found not guilty of battery as to count three, he could not have been found guilty of having committed a battery as to count one. He appears to assert that the battery charged as part of count one was an aggravating factor for purposes of sentencing on that count.
However, the claim that the trial court unconstitutionally enhanced Petitioner's sentence is unexhausted because it was not raised in state court proceedings. Claims asserting trial court error are properly raised on direct appeal. See Henry v. State, 933 So.2d 28, 29 (Fla. 2d DCA 2006). Petitioner did not bring this argument on direct appeal. (Dkt. 13, Ex. 2.) Because the claim has not been raised in state court, it is unexhausted. State procedural rules do not provide for a second direct appeal. See Fla. R. App. P. 9.110; 9.140. Accordingly, this claim is procedurally defaulted.
Petitioner claims that he asked appellate counsel to raise this matter on direct appeal, but that appellate counsel informed him that the issue had not been preserved for appellate review. To the extent that this assertion can be construed as an argument that the cause and prejudice exception applies to allow a review of this claim, Petitioner is not entitled to relief. To show cause for a procedural default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999.) See also Murray v. Carrier, 477 U.S. 478, 488 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with errors of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982).
First, tothe extent that Petitioner's allegation that this claim was not preserved for appeal suggests an allegation of ineffective assistance of trial counsel, Petitioner has not shown cause and prejudice for the default. While ineffective assistance of counsel may constitute cause for a default, under the exhaustion doctrine, the ineffective assistance of counsel claim must be "presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray, 477 U.S. at 489. Petitioner asserts that he was aware of this potential claim. But Petitioner did not assert that counsel was ineffective in regard to an allegedly enhanced sentence imposed on count one in his Rule 3.850 motion. (Dkt. 13, Exs. 6, 7, 9, 12.) Similarly, Petitioner cannot show cause and prejudice for the default to the extent his claim can be construed to assert ineffective assistance of appellate counsel for failing to raise this matter on direct appeal. Petitioner did not present any argument regarding an enhanced sentence in his state habeas petition that alleged ineffective assistance of appellate counsel. (Dkt. 13, Ex. 10.) Accordingly, any ineffective assistance of counsel claims are themselves procedurally defaulted. Furthermore, Petitioner has not presented any evidence of ineffective assistance of trial or appellate counsel.
Accordingly, Petitioner has not shown that the cause and prejudice exception applies here to allow review of his procedurally defaulted claim. He is therefore not entitled to relief on Ground Two.
Petitioner asserts that his conviction for possession of cannabis is void because the statute under which this charge was filed, § 893.13, Fla. Stat., was subsequently declared unconstitutional by the district court decision in Shelton v. Sec'y, Dep't of Corr., 802 F.Supp.2d 1289 (M.D. Fla. 2011). Petitioner is not entitled to relief. His claim is foreclosed by the Eleventh Circuit Court of Appeals' opinion in Shelton v. Sec'y, Dep't of Corr., 691 F.3d 1348 (11th Cir. 2012), which reversed the district court decision upon which Petitioner relies. Because Petitioner's argument is based on a decision that has been vacated, this claim must fail. Accordingly, Petitioner is not entitled to relief on Ground Three.
Petitioner appears to raise two arguments within Ground Four.
Second, Petitioner claims that the second superseding information was invalid and the trial court thus lacked jurisdiction over his case. Petitioner raised substantially the same claim as ground two of his Supplementation to Amended Motion for Postconviction Relief, where he argued that the State filed a second superseding information that divested the trial court of jurisdiction, thereby resulting in fundamental error and violation of his constitutional rights. (Dkt. 13, Ex. 12.) As discussed in Ground One, the state court found this claim to be untimely under applicable Florida law. For the same reasons addressed in Ground One, the state court's disposition of his claim on an independent and adequate state procedural ground renders his claim unexhausted and procedurally defaulted. Petitioner neither asserts nor demonstrates that the cause and prejudice or fundamental miscarriage of justice exception applies to his claim. Accordingly, Petitioner is not entitled to relief on Ground Four.
Accordingly, it is
It is further ordered that Petitioner is not entitled to a certificate of appealability. A petitioner does not have absolute entitlement to appeal a district court's denial of his habeas petition. 28 U.S.C. § 2253(c)(1). A district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made this showing. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
Petitioner's first claim asserts that counsel was ineffective for not objecting to the charging document and during the proceedings generally. His second claim essentially challenges the sufficiency of the evidence offered against him at trial. These proposed additional claims are separate from any grounds for relief raised in the petition. Therefore, the claims can only be considered if they are timely independent of the original petition. In determining that the original petition was timely, this Court noted that 226 days of un-tolled time passed before Petitioner filed his habeas petition on December 9, 2011. Petitioner had 139 days remaining on the one-year period to file his federal habeas petition, meaning that his federal filing limitation was April 26, 2012. He mailed his reply on May 24, 2012. (Dkt. 15, p. 12.) Consequently, any new claims raised in the reply are untimely.
