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Scott Allen Kent v. Secretary

December 19, 2011

SCOTT ALLEN KENT, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT.



ORDER

This cause is before the Court on Petitioner Scott Allen Kent's timely-filed 28 U.S.C. § 2254 petition for writ of habeas corpus. Kent, who is represented by counsel, challenges his conviction and sentence entered by the Circuit Court for the Sixth Judicial Circuit, Pinellas County, Florida.

A review of the record demonstrates that, for the following reasons, the petition must be denied.

PROCEDURAL HISTORY

On December 8, 2005, Kent was charged by amended information with one count of unlawful sexual activity with a minor, a second degree felony. (Ex. 1). Kent was tried by jury on March 6 and 7, 2007. (Ex. 15). On March 7, 2007, the jury returned a verdict finding Kent guilty of the charged offense. (Ex. 2). On May 11, 2007, the state trial court sentenced Kent to twelve years incarceration. (Ex. 3).

Direct Appeal

On May 2, 2008, the state district court of appeal per curiam affirmed Kent's conviction and sentence . (Ex. 6). See Kent v. State, 980 So. 2d 1075 (Fla. 2d DCA 2008) (table). The mandate issued May 23, 2008. (Ex. 7).

Collateral Proceedings

On or about June 17, 2008, Kent filed a rule 3.800 motion for reduction of sentence which was denied on June 27, 2008. (Ex. 8). No appeal was taken. On March 18, 2009, Kent filed a rule 3.850 motion for post-conviction relief. (Ex. 9). Only grounds one and three of the motion are relevant to the present petition. In ground one, Kent alleged that trial counsel was ineffective for failing to file a motion to suppress statements Kent made to law enforcement. (Ex. 9, p. 2). In ground three, Kent alleged that trial counsel was ineffective for failing to object when the prosecutor "commented on Defendant's pending charge of misdemeanor possession of marijuana at defendant's felony trial." (Ex. 9, p. 3).

On April 23, 2009, the state trial court struck Kent's rule 3.850 motion in part. (Ex. 10). The state trial court struck grounds one and three as conclusory and facially insufficient, and granted Kent thirty days to file an amended rule 3.850 motion. (Ex. 10, pp. 2-4).

Kent filed an amended rule 3.850 motion on May 20, 2009. (Ex. 11). Amended ground one stated, in pertinent part:

Ground 1: Defense counsel was ineffective in failing to file a motion to suppress statements because they were involuntary. . . . [The statements] were made at defendant's home on the night of his arrest. The statements tended to show defendant's involvement in the crimes charged. Defendant contends he was extremely intoxicated at the time of the statement and at the time of his consent to DNA testing. Moreover, Nikki Kent (at the time known as Nikki Wood), Defendant's wife, if called upon to testify would have testified that defendant was intoxicated, that he did not know that anything happened with the alleged victim until the detective so advised him, that his ability to walk, talk, judge distance, drive an automobile, and make ordinary decisions were impaired at the time of making his statements and/or consents to law enforcement. If defendant's statements and consent to DNA testing were suppressed then defendant may well have been acquitted as these statements and DNA were direct evidence of identification of this defendant to the crimes charged. (Ex. 11, pp. 2-3) (emphasis in original).

Amended ground three stated:

Ground 3: Defense counsel was ineffective for failing to object to the prosecutor's misconduct insofar as he improperly and falsely commented at sentencing on Defendant's "pending charge of misdemeanor possession of marijuana" in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In fact, defendant had no pending charge of any kind at the time of sentencing. Therefore, false injection into the case of improper collateral crimes evidence and additional criminal history would likely cause any court to consider harsher punishment. . . . (Ex. 11, pp. 3-4).

The state trial court denied Kent's rule 3.850 motion on April 15, 2010. (Ex. 12). In denying ground one, the state trial court stated:

This claim was stricken because the Defendant did not clearly identify the statements which allegedly should have been the subject of the motion to suppress and because his claim of intoxication was conclusory and facially insufficient. In his amended motion the Defendant again fails to clearly identify the statement or statements which allegedly should have been subject to a motion to suppress. He merely states that incriminating statements were made "at the defendant's home on the night of his arrest."

The investigating officer, Detective Folk testified at trial that he interviewed the Defendant on October 29, 2002, at approximately 3:50 in the afternoon and obtained consent for the DNA samples. (See Exhibit B: Trial Transcript, pg. 274). Detective Folk further testified that it did not appear that the Defendant was intoxicated at the time. (See Exhibit B: Trial Transcript, pg. 296). The Defendant was not arrested until after the detective received the DNA analysis on or about December 18, 2002, and there was no testimony regarding statements made by the Defendant to police at the time of his arrest. (See Exhibit B: Trial Transcript, pp. 287-289).

The Defendant fails to demonstrate prejudice. His DNA would inevitably have been discovered because Detective Folk had already developed the Defendant as a suspect. (See Exhibit B: Trial Transcript, pp. 269-270). In addition, as noted in this Court's previous order, the Florida Supreme Court has stated that it is "well settled that the drunken condition of an accused when making a confession, unless such drunkenness goes to the extent of mania, does not affect the admissibility in evidence of such confession, but may affect its weight and credibility with the jury." Thomas v. State, 456 So. 2d 454, 458 (Fla. 1984); see also Lawson v. State, 884 So. 2d 540, 547 (Fla. 4th DCA 2004). Nothing in the Defendant's motion or amendment indicates that he was intoxicated to the point of mania at the time of his initial interview or at the time of his arrest. At the initial interview the Defendant was capable of relating details of the events of the evening of the offense. (See Exhibit B: Trial Transcript, pp. 279-282). Finally, the Defendant does not allege that he told counsel that he was highly intoxicated at the time of his interview or arrest. Accordingly, this claim is denied. (Ex. 12, pp. 2-3).

In denying amended ground three, the state trial court stated:

Ground 3: The Defendant claims that counsel was ineffective for failing to object to "the prosecutor's misconduct insofar as he improperly commented on the Defendant's pending charge of misdemeanor ...


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