Termitus v. Secretary, Department of Corrections

          ORDER

          Gregory A. Presnell United States District Judge

         Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1). This cause is before the Court on remand from the Eleventh Circuit Court of Appeal's opinion affirming in part and reversing in part the Court's December 3, 2014 Order. (Doc. 22). Respondents filed a supplemental response in compliance with the Court's instructions. (Doc. 25). Although Petitioner was given an opportunity to file a reply, he did not do so.

         Petitioner alleges appellate counsel was ineffective for failing to argue that his attempted robbery convictions violate the Double Jeopardy Clause. For the following reasons, the Court concludes that Petitioner is entitled to relief on his claim.

         I. Procedural History

         Petitioner was charged by Indictment with one count of first degree murder with a firearm (count one), two counts of attempted robbery with a firearm (counts two and three), one count of fleeing and attempting to elude with wanton disregard for safety (count four), and one count of grand theft of a motor vehicle (count five) (Doc. 9 at 32-34). Petitioner initially was found incompetent to proceed to trial and was committed to the Department of Children and Families (Doc. 9-4 at 17, 19-20). In 2008, the trial court determined Petitioner was competent to stand trial. Id. at 54. After a jury trial, Petitioner was convicted as charged (Doc. 9-5 at 51-55). The jury made a special finding that Petitioner actually possessed and discharged a firearm, which resulted in the death of the victim. Id. at 56-58. The trial court sentenced Petitioner to three terms of life imprisonment with a three-year minimum mandatory term for counts one, two, and three, to a fifteen-year term of imprisonment for count four, and to a five-year term of imprisonment for count five. Id. at 78-83. Petitioner appealed, and the Fifth District Court of Appeal (“Fifth DCA”) affirmed per curiam (Doc. 9-7 at 44).

         Petitioner filed a motion to correct illegal sentence pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure, and the trial court denied the motion. Id. at 49-59. Petitioner appealed, and the Fifth DCA reversed and remanded for resentencing on counts two and three. Id. at 128-31. Petitioner was resentenced to a twenty-year minimum mandatory sentence for count two and to a term of life imprisonment for count three (Doc. 9-8 at 172-76).

         While his Rule 3.800 motion was pending, Petitioner also filed a Rule 3.850 motion for post-conviction relief (Doc. 9-7 at 37-51). The trial court summarily denied the motion. Id. at 162-70. Petitioner appealed, and the appellate court affirmed per curiam (Doc. 9-8 at 48). Petitioner subsequently filed a petition for writ of habeas corpus with the Fifth District Court of Appeal alleging four claims of ineffective assistance of appellate counsel. Id. at 52-85. The Fifth DCA denied the petition without discussion. Id. at 161.

         II. Legal Standards

         A. Standard of Review Under the Antiterrorism Effective Death Penalty Act (“AEDPA”)

         Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court 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). The phrase “clearly established Federal law, ” encompasses only the holdings of the United States Supreme Court “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

         “[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the ‘contrary to' and ‘unreasonable application' clauses articulate independent considerations a federal court must consider.” Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was ...