United States District Court, M.D. Florida, Orlando Division
ANTOON II UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Petitioner Larry Madison's
Amended Petition for Writ of Habeas Corpus ("Amended
Petition, " Doc. 7) filed pursuant to 28 U.S.C. §
2254. Respondents filed a Response and Supplemental Response
to Amended Petition (Doc. Nos. 20, 23) in compliance with
this Court's instructions. Petitioner filed Replies to
Respondents' Response and Supplemental Response to
Amended Petition (Doc. Nos. 22, 16).
asserts two grounds for relief in the Amended Petition: (1)
he was convicted of two non-existent offenses in case
48-2010-MM-12936 (Ground One), and (2) the state courts
improperly denied his illegal search and seizure claim
(Ground Two). For the following reasons, the Amended Petition
will be denied.
was charged in case 48-2010-MM-012936 with two counts of
carrying a concealed weapon (Counts One and Two) and
resisting an officer without violence (Count Three). (Doc.
23-1 at 5-6). Pursuant to a plea agreement, Petitioner
entered a plea of nolo contendere to all counts.
(Id. at 9-10). On April 21, 2011, the County Court
of the Ninth Judicial Circuit of Florida sentenced Petitioner
in accordance with the plea agreement to 115 days in jail
with credit for 115 days of time served. (Id. at
9-11). Petitioner did not appeal his convictions but
subsequently filed a petition for belated appeal, which was
granted. (Id. at 17; Doc. 23-2 at 61-63). The
circuit court affirmed Petitioner's convictions,
see Doc. 23-2 at 61-63, and Petitioner appealed. The
Fifth District Court of Appeal of Florida ("Fifth
DCA") construed the appeal to be a petition for writ of
certiorari and denied relief. (Doc. 23-3 at 2, 40).
Petitioner filed a motion for rehearing, which was denied on
March 29, 2016. (Id. at 72). Petitioner filed a
petition for discretionary review with the Supreme Court of
Florida, which dismissed the petition for lack of
jurisdiction on May 5, 2016. (Id. at 82).
who was on felony probation in case 48-2008-CF-1533 at the
time he entered his plea in 48-2010-MM-012936, subsequently
entered a plea of no contest to violation of probation
pursuant to a plea agreement. (Id. at 84-85). The
state court sentenced Petitioner in accordance with the plea
agreement to a twelve-year term of imprisonment.
initiated the instant action on June 1, 2016. (Doc. 1).
challenges his convictions in case 48-2010-MM-12936 for which
he was sentenced to 151 days of time served. A district court
has jurisdiction to consider a petition raised pursuant to
§ 2254 if the petitioner is "in custody pursuant to
the judgment of a State court" 28 U.S.C. § 2254(a).
The "in custody" provision requires "the
habeas petitioner be 'in custody' under the
conviction or sentence under attack at the time his petition
is filed." Maleng v. Cook, 490 U.S. 488, 490-91
(1989). Typically, if the petitioner's sentence has fully
expired prior to filing the petition, the "in
custody" requirement is not satisfied. Id. at
492. An exception exists, however, "when the § 2254
petition can be construed as asserting a challenge to the
current state sentence that was enhanced by an allegedly
invalid prior state conviction..., " in which case the
petitioner is deemed to be "in custody." Green
v. Price, 439 F.App'x 777, 782 (11th Cir. 2011)
(citing Maleng, 490 U.S. at 493-94 and
Lackawanna Cnty. Dist. Alt 'y v. Coss, 532 U.S.
394, 399-402, (2001)). Therefore, a petitioner challenging a
sentence for violation of probation stemming at least in part
from a prior conviction on which the petitioner is no longer
in custody satisfies the "in custody" requirement.
See, e.g., Green, 439 F.App'x 777 at 782.
instant case, Petitioner contends he is serving a twelve-year
term of imprisonment directly as a result of his convictions
in case 48-2010-MM-12936. (Doc. 25 at 1-2). Consequently,
Petitioner has satisfied the "in custody"
requirement. Nevertheless, a petitioner "may not
collaterally attack the prior expired state sentence unless
the petitioner alleges that the prior state conviction was
obtained in violation of his Sixth Amendment right to counsel
announced in Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799 (1963)." Green,
439 F.App'x at 782 (citing Lackawanna, 532 U.S.
at 404); see also Hubbard v. Haley, 317 F.3d 1245,
1256 n. 20 (11th Cir. 2003) (noting that the exception
recognized in Lackawanna was not implicated where
the petitioner was represented by counsel at trial);
Jackson v. Sec'y for Dep't of Con., 206
F.App'x 934, 937 (11th Cir. 2006) (concluding petitioner
could not challenge expired conviction because he failed to
show a "Gideon-type" violation).
Petitioner has not alleged, nor can he establish, that he was
convicted without counsel in case 48-2010-MM-12936 in
contravention of Gideon. Review of the record
establishes Petitioner was represented by counsel when he
entered his plea and was sentenced in case 48-2010-MM-12936.
See Doc. 23-1 at 9-10, 12. Consequently, Petitioner
is prohibited from challenging his expired convictions in
case 48-2010-MM-12936 because he has failed to show a
Certificate of Appealability
Court should grant an application for certificate of
appealability only if the petitioner makes "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). To make such a
showing "the petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong." Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca
v. Sec 'y Dep 7 o/Corr., 568 F.3d 929, 934
(11th Cir. 2009). When a district court dismisses a federal
habeas petition on procedural grounds without reaching the
underlying constitutional claim, a certificate of
appealability should issue only when a petitioner
demonstrates "that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling." Id; Lamarca,
568 F.3d at 934. However, a prisoner need not show that the
appeal will succeed. Miller-El v. Cockrell, 537 U.S.
322, 337 (2003).
has not demonstrated that reasonable jurists would find the
Court's assessment of the constitutional claims debatable
or wrong. Moreover, Petitioner cannot show that jurists of
reason would find this Court's procedural rulings
debatable. Petitioner has failed to make a substantial
showing of the denial ...