CHARLENE EDWARDS HONEYWELL, District Judge.
Thomas Mackey, a Florida inmate, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) challenging his Hillsborough County convictions. Respondent does not contest the timeliness of the petition in its response. (Dkt. 13.) Mackey filed an amended reply. (Dkt. 29.) Upon consideration, the petition will be denied.
Mackey was convicted after a 2003 jury trial of robbery with a deadly weapon and was sentenced to life in prison. (Dkt. 15, Exs. 3-5.) Mackey was sentenced as a habitual violent felony offender. Mackey v. State, 884 So.2d 118 (Fla. 2d DCA 2004). The state appellate court affirmed in a written opinion. Id. Mackey filed a 2005 motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 15, Ex. 10.) The state court summarily denied his claims. (Dkt. 15, Exs. 12, 15.) The state appellate court per curiam affirmed the denial of relief. (Dkt. 15, Ex. 17.)
Mackey filed motions to correct an illegal sentence in 2008 pursuant to Florida Rule of Criminal Procedure 3.800(a). (Dkt. 15, Exs. 24-26.) Mackey alleged that the trial court had actually sentenced him as a violent career criminal,
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998). 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), which sets forth a highly deferential standard for federal court review of a state court adjudication, states:
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:
"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "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 being presented in federal court 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, 562 U.S. 86, 103 (2011).
The state appellate court affirmed the denial of postconviction relief without discussion. The court's decision warrants deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").
Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and resulting prejudice. d. at 687.I To show deficient performance, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Additionally, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.
Mackey must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92. To show prejudice, Mackey must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Sustaining a claim of ineffective assistance of counsel on federal habeas review is difficult because review is "doubly" deferential to counsel's performance and the state court's ruling. Richter, 562 U.S. at 105. See also Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA."). If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.").
Mackey was charged in the Thirteenth Judicial Circuit. However, after his motion to recuse the Office of the State Attorney for the Thirteenth Judicial Circuit was granted, the Office of the State Attorney for the Sixth Judicial Circuit was appointed. (See Dkt. 15, Ex. 27, p. 2.) Mackey alleges that because the authority of the Office of the State Attorney for the Sixth Judicial Circuit to prosecute his case expired prior to the date of his conviction, the trial court was without jurisdiction to adjudicate him guilty and sentence him in 2003. He alleges a violation of his federal right to due process.
Mackey raised this allegation in his 2012 postconviction motion. Contrary to Respondent's contention, he properly exhausted a federal claim
(Dkt. 15, Ex. 44, pp. 3-4.)
When the state court's rejection of a federal constitutional claim on procedural grounds is based on an "independent and adequate" state ground, federal review of the claim is barred. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). A state court's procedural ruling constitutes an independent and adequate state rule of decision if (1) the last state court rendering a judgment in the case clearly and expressly states that it is relying on a state procedural rule to resolve the federal claim without reaching the merits of the claim, (2) the state court's decision rests solidly on state law grounds and is not intertwined with an interpretation of federal law, and (3) the state procedural rule is not applied in an "arbitrary or unprecedented fashion" or in a "manifestly unfair manner." Id. (citing Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990)). "To qualify as an `adequate' procedural ground, a state rule must be `firmly established and regularly followed.'" Walker v. Martin, 562 U.S. 307, 316 (2011) (citation omitted).
The rule that a sentence imposed after obtaining collateral relief has no effect on Rule 3.850's two-year statute of limitations is firmly established and regularly followed. See Woodberry v. State, 193 So.3d 5, 6 (Fla. 4th DCA 2016) ("The fact that [Woodberry] was later resentenced on a postconviction motion did not restart the time for him to raise postconviction challenges to his conviction."); Gillis v. State, 32 So.3d 681, 682 (Fla. 2d DCA 2010) ("Mr. Gillis's resentencing, which resulted not from his direct appeal but from his successful rule 3.800 motions, did not toll the two-year time limit for filing a rule 3.850 motion attacking his convictions."); Joseph v. State, 835 So.2d 1221, 1222 n.3 (Fla. 5th DCA 2003) ("The two-year limitation is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered."). The state appellate court approved of the postconviction court's reliance on this rule when it per curiam affirmed the denial of postconviction relief.
Therefore, Mackey's claim is procedurally defaulted because the state court addressed the federal claim through the application of an independent and adequate state procedural ground. See Harris v. Reed, 489 U.S. 255, 262 (1989) ("[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show" the applicability of either the cause and prejudice or fundamental miscarriage of justice exception). Mackey has not argued or shown that an exception applies to overcome the default. Accordingly, Ground One is barred from federal habeas review.
As addressed in Ground One, supra, the postconviction court concluded that Mackey's 2010 resentencing did not re-start the two-year time limit to file a Rule 3.850 postconviction motion challenging his 2003 conviction. Mackey claims that the state court's decision violated his federal due process rights. However, this argument cannot provide federal habeas relief because it fails to raise a federal constitutional challenge to Mackey's conviction. See Carroll v. Sec'y, DOC, 574 F.3d 1354, 1365 (11th Cir. 2009) ("[A] challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment — i.e., the conviction itself — and thus habeas relief is not an appropriate remedy."). Accordingly, Ground Six does not raise a cognizable claim for federal habeas review.
Mackey alleges that trial counsel was ineffective for failing to move for a mistrial when a juror slept during the victim's testimony. Mackey raised this claim in his 2005 motion for postconviction relief. Assuming that this claim was exhausted,
(Dkt. 15, Ex. 15, pp. 1-2.) The State's response, upon which the trial court relied, provides in part:
(Dkt. 15, Ex. 13, pp. 1-2) (State's record citations omitted).
Whether a motion would have succeeded under Florida's standard for granting a mistrial is a question of state law. This Court must defer to the state court's interpretation of state law. See Will v. Sec'y, Dep't of Corr., 278 Fed. App'x 902, 908 (11th Cir. 2008) ("Although an ineffective-assistance-of-counsel claim is a federal constitutional claim, which we consider in light of the clearly established rules of Strickland, when `the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law.'") (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) ("[T]he Alabama Court of Criminal Appeals has already answered the question of what would have happened had [counsel] objected to the introduction of Callahan's statements . . . Therefore, [counsel] was not ineffective for failing to make that objection."); Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) ("The Florida Supreme Court already has told us how the issues would have been resolved under Florida state law had [petitioner's counsel] done what [petitioner] argues he should have done . . . It is a `fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.") (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)).
Furthermore, the record does not reveal whether the juror merely appeared to be sleeping, or, if he was in fact asleep, or, how long he slept.
Mackey argues that trial counsel was ineffective for failing to raise a voluntary intoxication defense. Respondent asserts that this claim is procedurally defaulted and consequently barred from federal habeas review. In his amended reply, Mackey states that he "concedes to Respondent[']s argument." (Dkt. 29, p. 5.) The Court therefore finds Ground Three barred from review.
Mackey argues that the trial court erred when it resentenced him in 2010 as a habitual violent felony offender (HVFO) without eligibility for parole. He also asserts that trial counsel was ineffective for failing to object to the sentence. The state court rejected his claims:
(Dkt. 15, Ex. 44, pp. 4-5) (court's record citation omitted).
First, the propriety of Mackey's sentence under Florida law is a determination to be made by the state court. Thus, Mackey's allegation that his sentence was illegal does not state a sufficient claim for federal habeas relief:
Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988).
Furthermore, in assessing counsel's performance, this Court must defer to the state court's determination that the sentence was lawful under the Florida Statutes. See Will, 278 Fed. App'x at 908; Callahan, 427 F.3d at 932; Herring, 397 F.3d at 1354-55. Accordingly, Mackey has not shown that his counsel performed deficiently in failing to object to the legality of the HVFO sentence. See Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) ("Counsel was not ineffective for failing to raise these issues because they clearly lack merit."). Mackey has not demonstrated that the state court unreasonably applied Strickland or unreasonably determined the facts in ruling on his ineffective assistance of counsel claim. Mackey is not entitled to relief on Grounds Four and Five.
Any claim not specifically addressed herein has been determined to be without merit. Accordingly, it is
1. Mackey's petition (Dkt. 1) is
2. Mackey is not entitled to a certificate of appealability (COA). 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 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, Mackey "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)). Mackey has not made this showing. Finally, because Mackey is not entitled to a COA, he is not entitled to appeal in forma pauperis.
(Dkt. 15, Ex. 2, Vol. II, p. 213.)
