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Herman Wesley Clary v. Secretary

January 4, 2012

HERMAN WESLEY CLARY, PETITIONER,
v.
SECRETARY, DEPT. OF CORRECTIONS, RESPONDENT.



ORDER

This cause is before the Court on Petitioner Herman Wesley Clary's 28 U.S.C. § 2254 petition for writ of habeas corpus. Clary 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

Clary was found guilty of seven counts of handling and fondling a child under 16 years of age, as charged; and lewd and lascivious act in the presence of a child under 16 years of age, as charged. (Exh. 033, R. 3-6). A notice of appeal was filed on April 30, 2001; Case No. 2D01-2176. (Exh. 001). Clary raised the following issues on appeal:

ISSUE I: DID THE COURT ERR BY REVOKING APPELLANT'S PROBATION AFTER DENYING THE DEFENSE MOTION TO SUPPRESS STATEMENTS MADE TO PROBATION OFFICER WITHOUT MIRANDA WARNING IN VIOLATION OF PROBATION CASE WHICH INVOLVED SUBSEQUENT CRIMINAL OFFENSE FOR WHICH APPELLANT WAS IN JAIL UNDER ARREST AT THE TIME AFTER HAVING PREVIOUSLY EXERCISED HIS RIGHTS TO REMAIN SILENT AND TO HAVE COUNSEL APPOINTED IN THE SUBSEQUENT CRIMINAL OFFENSE CASE? (Exh. 002).

On November 22, 2002, the state district court of appeal per curiam affirmed the judgment and sentence. Clary v. State, 835 So. 2d 1120 (Fla. 2d DCA 2002)(table). (Exh. 005). The Mandate issued December 18, 2002. (Exh. 006; case docket sheet).

On or about December 16, 2003, Clary filed a rule 3.850 motion for post-conviction relief.

(Exh. 007). In his motion, Clary alleged the following grounds:

1. CONVICTION WAS OBTAINED BY A PLEA OF GUILTY WHICH WAS INVOLUNTARILY INDUCED BY TRIAL COUNSEL'S MISADVICE ABOUT THE CONSEQUENCES OF THE PLEA.

2. DEFENDANT HAS DISCOVERED NEW EVIDENCE WHICH CONCLUSIVELY ESTABLISHES HIS INNOCENCE TO THE CHARGE OF VIOLATION OF PROBATION.

On September 4, 2004, the state trial court denied the rule 3.850 motion. (Exh. 008). Clary appealed the denial of relief. (Exh. 009). Clary raised the following issues:

I. THE LOWER COURT ERRED BY DENYING GROUND ONE IN THAT THE DEFENDANT'S 3 CONSECUTIVE FIFTEEN YEAR SENTENCES IS AN ILLEGAL SENTENCE.

II. THE LOWER COURT ABUSED ITS DISCRETION BY NOT REVERSING REVOCATION OF PROBATION UPON NOTIFICATION OF DEFENDANT'S NOT GUILTY VERDICTS FOR THE NEW CRIMES INITIATING VIOLATION.

On April 13, 2005, the state district court of appeal per curiam affirmed the denial of rule 3.850 post-conviction relief. Clary v. State, 902 So. 2d 143 (Fla. 2d DCA 2005). (Exh. 012). The Mandate issued May 11, 2005. (Exh. 013).

On September 25, 2006, Clary filed a rule 3.800 motion to correct illegal sentence. (Exh. 014). On May 30, 2007, the state trial court denied Clary's rule 3.800 motion to correct illegal sentence. (Exh. 017). Clary appealed. (Exh. 018). On February 15, 2008, the state district court of appeal per curiam affirmed the denial of rule 3.800 relief. Clary v. State, 976 So. 2d 1102 (Fla. 2d DCA 2008). (Exh. 022). The Mandate issued March 7, 2008. (Exh. 023).

On March 5, 2009, Clary filed a rule 3.850 motion for post conviction relief "predicated upon newly acquired information which could not have been discovered by defendant through the exercise of due diligence prior to March 30, 2007." (Exh. 024). On March 18, 2009, the state trial court denied the rule 3.850 motion. (Exh. 025). On April 1, 2009, Clary filed a motion for rehearing. (Exh. 026). On May 22, 2009, the state trial court denied the motion for rehearing. (Exh. 027). Clary appealed. On March 12, 2010, the state district court of appeal per curiam affirmed the denial of post-conviction relief. Clary v. State, 29 So. 3d 1125 (Fla. 2d DCA 2010). (Exh. 031). The mandate issued April 9, 2010. (Exh. 032).

Clary signed the present 28 U.S.C. ยง 2254 petition on January 24, 2011 raising ...


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