The opinion of the court was delivered by: Miles Davis United States Magistrate Judge
REPORT AND RECOMMENDATION
This cause is before the court on petitioner's petition for habeas corpus filed pursuant to Title 28 U.S.C. § 2254 (doc. 1). Respondent filed a response and relevant portions of the state court record (docs. 32, 35-38, 44). Petitioner filed a response (doc. 47). 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 show that petitioner is not entitled to relief, and the petition is without merit and should be denied.
BACKGROUND AND PROCEDURAL HISTORY
The petitioner, Robert Lee Hinson
Jr., was charged with several crimes in the Circuit Court of Escambia
County, Florida, in 2007 and 2008 (see doc. 35, ex. H).*fn2
At issue is the charge of burglary of a conveyance in case
number 2007 CF 5153 ("case 5153") and the charge of felony petit theft
in case number 2008 CF 402 ("case 402").*fn3
(Id.). Mr. Hinson moved to waive his right to counsel and represent himself in both cases (ex. F, p. 18). The trial court granted the motion after holding a Faretta*fn4 hearing on March 25, 2008 (ex E, pp. 86-107). On the burglary charge, Mr. Hinson entered a plea of guilty to the lesser included offense of trespassing. (Ex. A, pp. 39-44) (case no. 2008 CF 5153). The court sentenced him to nine months in jail with nine days of credit time (Ex. A, p. 50). He was tried by jury and adjudicated guilty of felony petit theft on July 2, 2008. (Ex. F, p. 135) (case no. 2008 CF 402). The court sentenced him to a term of five years imprisonment with 225 days of credit time (ex. G, pp. 183-89).
Mr. Hinson appealed the convictions and sentences in cases 5153 and 402 to the First District Court of Appeal ("First DCA") (exs. A, p. 70; G, p. 208). The First DCA consolidated the appeals (ex. D, p. 77). Through counsel, Mr. Hinson raised one issue: the trial judge erred in not conducting an adequate Faretta inquiry (ex. D). On July 13, 2009, the First DCA per curium affirmed the convictions and sentences without written opinion. Hinson v. State of Florida, 14 So.3d 1007 (Fla. 1st DCA 2009) (Table). A motion for rehearing was denied (ex. H, dkt. Aug. 25, 2009).
Mr. Hinson filed numerable motions and appeals in the state trial and appellate courts. On January 21, 2009, he filed a motion to correct the sentence in case 402 based on the Florida speedy trial rule (ex. I, p. 1). The trial court denied the motion on February 6, 2009 (ex. I, p. 4). The First DCA affirmed the decision on May 14, 2009, and issued the mandate on July 1, 2009. Hinson v. State of Florida, 10 So.3d 365 (1st DCA 2009) (Table) (docket at sxs. J, HH).
On August 13, 2009, Mr. Hinson filed two virtually identical petitions for writ of habeas corpus seeking a belated appeal. The first challenged the June 9, 2008, hearing on his motion to dismiss the charges in case 402, stating the information was impermissibly vague, and his appellate attorney failed to appeal "the hearing[.]" (Ex. K). The second challenged the portion of the August 11, 2008, hearing pertaining to case 402 (ex. M). At that hearing, the trial judge denied Mr. Hinson's post-trial "motion for judgment of not guilty" and "motion for a cross bill of information", which Mr. Hinson stated was similar to a motion to dismiss the charges. (See ex. F, p. 168). The First DCA per curiam denied both petitions by separate opinions issued on September 17, 2009 (exs. L, N).
On August 17, 2009, Mr. Hinson filed a petition for writ of habeas corpus with the First DCA contending the trial court lacked subject matter jurisdiction in case 402 because the information was defective (ex. O). The First DCA denied the petition without written opinion on September 17, 2009 (ex. P).
On August 25, 2009, he filed another petition for writ of habeas corpus with the First DCA, this time alleging ineffective assistance of appellate counsel for failing to "appeal" the June 9 and August 11, 2008, hearings and the trial court's order denying a motion to disqualify the judge (ex. Q). The First DCA denied the petition on the merits on September 29, 2009 (ex. R).
On October 13, 2009, Mr. Hinson filed a petition for writ of habeas corpus with the Florida Supreme Court arguing the trial court was "obligated" to order a mental health evaluation based on the March 25, 2008 Faretta inquiry (ex. S). The Florida Supreme Court transferred the petition to the Escambia County Circuit Court for consideration as a motion for post-conviction relief on February 8, 2010 (exs. T; X, p. 29). While that motion was pending, Mr. Hinson filed a Rule 3.850 post-conviction motion raising four grounds for relief (ex. U, p. 1). On August 25, 2010, the Rule 3.850 court denied both motions in a written opinion (ex. U, p. 12). Mr. Hinson appealed (ex. LL), and the First DCA per curiam affirmed the Rule 3.850 court's decision on November 10, 2010 (ex. KK, dkt. Nov. 10, 2010).
On March 15, 2010, while the Rule 3.850 motions were pending, Mr. Hinson filed a motion to correct illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure, alleging the trial court did not have subject matter jurisdiction in case 402 because the statute Mr. Hinson violated lacks an enacting clause (ex. V, pp. 1-30). He filed another Rule 3.800(a) motion on July 27, 2010, raising three additional grounds for relief (ex. V, pp. 31-41). The Rule 3.800 court denied both motions on the merits on August 25, 2010 (ex. V, pp. 42-43). Mr. Hinson appealed (ex. II), and the First DCA per curiam affirmed the Rule 3.800 court's decision on November 10, 2010 (ex. JJ).
On August 13, 2010, Mr. Hinson filed three pleadings-a petition for writ of habeas corpus to the Florida Supreme Court, a petition for writ of prohibition to the Florida Supreme Court, and a petition for writ of prohibition to the First DCA-alleging the trial court lacked subject matter jurisdiction in case 402 because the statute under which he was charged does not have an enacting clause and is therefore not a valid law. (See exs. W, Y, AA). The Florida Supreme Court transferred the petition for writ of prohibition to the Jackson County Circuit Court, where Mr. Hinson was imprisoned (ex. Z). That court dismissed the petition on October 6, 2010. (Case no. 2010 CA 827) (docket available at http://www.jacksonclerk.com). The Florida Supreme Court transferred the petition for habeas corpus to the Escambia County Circuit Court (ex. FF, dkt. # 267), which denied the petition on November 5, 2010 (id., dkt. # 282). He appealed to the First DCA (ex. MM), and the court affirmed the trial court's order denying the petition on March 14, 2011 (ex. NN). The First DCA dismissed the petition filed in its court on November 19, 2010, due to Mr. Hinson's motion for voluntary dismissal (ex. BB).*fn5
Mr. Hinson filed another petition for writ of prohibition with the First DCA on August 25, 2010, again raising the issue of the trial court's failure to order a mental competency evaluation (ex. DD). The court denied the petition on October 29, 2010 (ex. EE).*fn6
On November 23, 2010, Mr. Hinson filed the instant petition for writ of habeas corpus (doc. 1).
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. 104-132, § 104, 110 Stat. 1214, 1218-19. In relevant part, § 2254 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 be granted 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(d) (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).*fn7 Section 2254(d)(2) must be divided into two separate inquiries:
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). The federal habeas court "determining whether [it] should overturn the state courts' [sic] rejection of the claim at issue" should "review the highest state court decision disposing of the claim." Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1237 (11th Cir. 2011); see Knowles v. Mirzayance, 556 U.S. 111, __, 129 S. Ct. 1411, 1419, 173 L. Ed. 2d 251 (2009).
Following 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 state court 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 renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 1172, 155 L. Ed. 2d 144 (2003). The law is "clearly established" only when the Supreme Court's holding embodies the legal principle; dicta in opinions is not controlling. 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). Furthermore, a federal court of appeals decision, "even a holding directly on point," cannot clearly establish federal law for § 2254 purposes. Bowles, 608 F.3d at 1316 (citing Renico v. Lett, __ U.S. __, 130 S. Ct. 1855, 1866 (2010)).
After identifying the governing legal principle, the court determines whether the state court adjudication is "contrary to" clearly established Supreme Court case law, either because the state court "applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or because it "confronts a set of facts that is materially indistinguishable from a decision of [the] Court but reaches a different result." Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1438, 161 L. Ed. 2d 334 (2005); see § 2254(d)(1). The state court does not need to cite to Supreme Court cases or even be aware of them, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365, 154 L. Ed. 2d 263 (2002). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim.
If the state court decision is not contrary to clearly established federal law, the federal habeas court must then determine whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. § 2254(d)(1); Williams, 529 U.S. at 412--13, 120 S. Ct. at 1523. The federal court defers to the state court's reasoning unless the state court's application of the legal principle was "objectively unreasonable" in light of the record the court had before it. Williams, 529 U.S. at 409, 120 S. Ct. at 1521; see Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1400, 179 L. Ed. 2d 557 (2011) (holding new evidence introduced in federal habeas court has no bearing on § 2254(d)(1) review, rejecting dicta in 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). A state court's application of federal law is objectively unreasonable 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." Brown,544 U.S. at 141, 125 S. Ct. at 1439. However, 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, 129 S. Ct. at 1419. Notably, even a state court's incorrect application of law will not warrant federal habeas relief unless it is also objectively unreasonable. See Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785-86, 178 L. Ed. 2d 624 (2011).
Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where that adjudication "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(d)(2). As with the "unreasonable application" clause, the Supreme Court applies the "objectively unreasonable" test to the state court's factual determination. Miller-El v. Cockrell, 537 U.S. 322, 324, 123 S. Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003) (dictum). The petitioner must advance clear and convincing evidence that the state court's factual determination was "objectively unreasonable" to rebut the presumption that the determination was correct. Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011); see § 2254(e)(1).
The Eleventh Circuit Court of Appeals in Gill clarified how the federal habeas court should address the "unreasonable application of law" and the "unreasonable determination of facts" tests. Mr. Gill's petition alleged he was denied his Sixth Amendment right to counsel.*fn8 The Eleventh Circuit granted a limited Certificate of Appealability to determine the precise issue of the validity of "summary affirmance by a state appellate court of a trial court's decision based on potentially flawed reasoning." Id. at 1286.*fn9
The court acknowledged the well-settled principle that summary affirmances, such as the Florida Second District Court of Appeal's, are presumed adjudicated on the merits and warrant deference. Id. at 1288 (citing Harrington, 131 S. Ct. at 784-85 and Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002)). "A judicial decision and a judicial opinion are not the same thing," and the Supreme Court has confirmed that determining whether the state court unreasonably applied the law or unreasonably determined the facts requires only a decision, not an opinion. Id. at 1291 (citing Harrington, 131 S. Ct. at 784). Yet, the Supreme Court has never squarely addressed whether under the "unreasonable application" test a federal habeas court "looks exclusively to the objective reasonableness of the state court's ultimate conclusion or must also consider the method by which the state court arrives at its conclusion." Id. at 1289 (quoting Neal v. Puckett, 286 F.3d 230, 244-45 (5th Cir. 2002) (summarizing the emerging circuit split)). The Eleventh Circuit court concluded that district courts must apply the plain language of § 2254(d) and answer the "precise question" raised in a claim based on the state court's ultimate legal conclusion, and should not "evaluate or rely upon the correctness of the state court's process of reasoning." Id at 1291 (agreeing with the Fifth Circuit court in Neal, supra). In short, the court stated, "the statutory language focuses on the result, not on the reasoning that led to the result." Id.*fn10
In light of Gill, the "unreasonable determination of facts" standard plays a limited role in habeas review because the district court considers the reasonableness of the trial court's fact finding only to the extent that the state court's ultimate conclusion relied on it. Id. at 1292. A federal habeas court can consider the full record before it to answer "the only question that matters[:]" whether the state court's decision was objectively unreasonable. Lockyer, 538 U.S. at 64, 123 S. Ct. at 1168; Gill, 133 F.3d at 1290.
The Supreme Court recently summarized the meaning and function of habeas corpus in the federal system:
Under §2254, a habeas court must determine what arguments or theories supported or . . . could have supported [ ] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of this Court.
Harrington, 131 S. Ct. at 786. Federal habeas relief is precluded "so long as fairminded jurists could disagree on the correctness of the state court's conclusion." Id. at 786 (internal quotations omitted).
The federal habeas court will take the final step of conducting an independent review of the merits of the petitioner's claims only if it finds that the petitioner satisfied AEDPA and § 2254(d). SeePanetti v. Quarterman, 551 U.S. 930, 953-54, 127 S. Ct. 2842, 2858-59, 168 L. Ed. 2d 662 (2007); Jones v. Walker, 496 F.3d 1216, 1228 (2007) (same). The writ will not issue unless the petitioner shows that he is in custody "in violation of the Constitution or laws and treaties of the United States."
28 U.S.C. § 2254(a). When performing its review under § 2254(d), the federal court must resolve all claims for relief regardless of whether habeas relief is granted or denied. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc); see Puiatti v. McNeil, 626 F.3d 1283, 1307 (11th Cir. 2010). The federal court must also bear in mind that state court factual determinations are presumed to be correct, and the petitioner bears the burden of rebutting that presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1); see also Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002) (AEDPA provides for a "highly deferential standard of review" for factual determinations made by a state court); Jackson, 112 F.3d at 824-25 (noting petitioner has heavier burden to overcome the presumption of factual correctness). "If this standard is difficult to meet, that is because it was meant to be." Harrington, 131 S. Ct. at 786.
OTHER CONTROLLING LEGAL PRINCIPLES
Ineffective assistance of counsel.
Petitioner contends in some of his grounds for relief in this court that he was denied his constitutional right to the effective assistance of counsel. The Constitution provides "[i]n all criminal prosecutions, the accused shall enjoy the right. . .to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. To prevail on a claim of ineffective assistance of counsel, the petitioner must prove:
(1) "counsel's representation fell below an objective standard of reasonableness;" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 677-678, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see alsoBerghuis v. Thompkins, __ U.S. __, 130 S. Ct. 2250, 2264-65, 176 L. Ed. 2d 1098 (2010). Reasonableness of representation does not implicate what is possible, prudent, or even appropriate, but only what is "constitutionally compelled." Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)(citing Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 3126, 97 L. Ed. 2d 638 (1987)).
In evaluating counsel's performance, reviewing courts must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable, professional assistance. Chandler, 218 F.3d at 1314. Courts must make "every effort. . .to eliminate the distorting effects of hindsight" and must evaluate the reasonableness of counsel's performance "from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also, e.g., Chandler, 218 F.3d at 1314 (the Strickland standard compels courts to "avoid second-guessing counsel's performance"). The Eleventh Circuit has summarized the standard and the burden:
Even if many reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would have done so. This burden, which is petitioner's to bear, is and is supposed to be a heavy one. And, "[w]e are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial . . . worked adequately." See White v. Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992). Therefore, the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.
Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994); see also, e.g., Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995) (the test is not whether counsel could have done more); Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (". . .the Constitution requires a good deal less than maximum performance.").
In order to meet the prejudice prong of the Strickland standard, petitioner must allege more than that the unreasonable conduct might have had "some conceivable effect on the outcome of the proceeding." 466 U.S. at 693, 104 S. Ct. at 2067; see Marquard v. Sec'y for Dep't of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005). Petitioner must show a reasonable probability exists that the outcome would have been different. Marquard, 429 F.3d at 1305 (petitioner's burden under the prejudice prong is high); Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In applying Strickland, the court may dispose of an ineffective assistance claim if petitioner fails to carry his burden on either of the two prongs. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice. . .that course should be followed.").
The Strickland standard exists to prevent petitioners from abusing the post-trial process by escaping rules of waiver or presenting new issues; it should be "applied with scrupulous care" to protect the integrity of the adversary process. Harrington, 131 S. Ct. at 788. As it relates to habeas corpus applications, the Court emphasized:
The standards created by Strickland and § 2254(d) are both "highly deferential," and when the two apply in tandem, review is "doubly" so.
The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.
Id. at 788 (citations omitted); Knowles,129 S. Ct. at 1420 (Strickland claims evaluated under § 2254(d)(1) require "doubly deferential" judicial review).
Finally, when a district court considers a habeas petition, the state court's findings of historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption of correctness, while the performance and prejudice components are mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S. Ct. at 2070; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). "The pivotal question is whether the state court's application of the Strickland standard was unreasonable. "This [inquiry] is different from asking whether defense counsel's performance fell below Strickland's standard." Jones v. Sec'y, Dep't of Corr., 644 F.3d 1206, 1209 (11th Cir. 2011) (quoting Harrington, 131 S. Ct. at 785). Habeas claims of ineffective assistance of counsel require "doubly deferential" judicial review under §2254(d) and Strickland, and petitioners only rarely prevail on this ground. SeeRogers,13 F.3d at 386.
Exhaustion of state remedies and Procedural Default
Respondent contends some of Mr. Hinson's ground for relief are unexhausted (doc. 32). A petitioner defaults on an issue unless the petitioner first exhausts available state court remedies so the state has the "'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888, 130 L. Ed. 2d 865 (1995) (per curiam); see 28 U.S.C. § 2254(b)(1)(A) (applicant must exhaust available state court remedies);§ 2254(b)(3) (state may rely on exhaustion requirement unless it expressly waives the right). But see § 2254(b)(2) (application may be denied on the merits even when applicant fails to exhaust state remedies). To satisfy the exhaustion requirement, the petitioner must "fairly present" his claim in each appropriate state court, alerting that court to the federal nature of the claim. Duncan, 513 U.S. at 365-66, 115 S. Ct. at 888; see O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732, ...