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Parent v. Secretary, DOC

United States District Court, M.D. Florida, Jacksonville Division

June 8, 2017

SECRETARY, DOC, et al., Respondents.


          BRIAN J. DAVIS United States District Judge.

         I. STATUS

         Petitioner Denis Andre Parent challenges a 2013 (Columbia County) conviction for lewd or lascivious molestation of a child (violation of probation). Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1) at 1. He filed the Petition on October 20, 2014, pursuant to the mailbox rule.[1] He raises three grounds in the Petition. Respondents filed an Answer in Response to Order to Show Cause (Response) (Doc. 26). In support of the Response, they attach an Appendix (Doc. 26).[2] Petitioner filed a Rebuttal to State's Answer on Order to Show Cause (Reply) (Doc. 27). See Order (Doc. 11). He also filed a Notice of the Court (Doc. 34), attaching a response from the Florida Bar dated June 3, 2016, stating that the Bar's records show that James V. Modica is an active member in good standing with the Florida Bar and is up to date with his CLE requirements. (Doc. 34-1).

         To adequately address Petitioner's claims, the Court will provide a brief procedural history. Petitioner was charged by information with sexual battery upon a child under twelve years of age. Ex. A. He entered a plea agreement to a lesser offense of lewd or lascivious molestation of a child, and was sentenced to probation for fifteen years. Ex. B; Ex. C. Petitioner violated his terms of probation, Ex. D, and on October 6, 2004, the court sentenced him to two years community control with credit for time served on community control and to continued probation. Ex. E. Petitioner violated his terms of community control. Ex. F, and on March 8, 2005, the court sentenced him to twenty-one days in the county jail and reimposed probation. Ex. G. Once again, on February 1, 2013, a Correctional Probation Specialist filed an Affidavit [of] Violation of Probation. Ex. H. This time, it charged Petitioner with:

viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern, unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, and as grounds for belief that the offender violated her [sic] probation, Officer Wanda G. Ashley states that on February 1, 2013 the offender was found to be viewing child porn, as told to this officer by pictures/images on the subject's cell phone on February 1, 2013.


         On July 31, 2013, during a change of plea hearing/disposition, Plaintiff admitted to the violation of probation. Ex. I at 5. After a full plea colloquy and the reading of the plea agreement, the trial court found Petitioner freely, knowingly, and voluntarily entered the plea with the advice of counsel. Id. at 11. Petitioner expressed complete satisfaction with counsel, acknowledging that the ten-year deal was "good."[3] Id. at 11-12. The court revoked his probation and sentenced Petitioner to ten years in prison, followed by ten years probation, as set forth in the plea agreement. Id. at 9, 12. The court advised that Petitioner had thirty days to appeal his sentence. Id. at 15. On July 31, 2013, the court entered a Probation Violator judgment and sentence. Ex. J.

         Petitioner sent letters to the court asking to change his plea. Ex. K. The court, construing the letters as a motion, denied the motion to withdraw the plea. Ex L. Finding no lack of subject matter jurisdiction, no violation of the plea agreement, sentencing error, or any other basis for relief under Florida law, the court rejected his motion. Id. Additionally, the court found that any claim of an involuntary plea is refuted by the record. Id.

         Petitioner filed a Rule 3.850 motion for post conviction relief. Ex. M. He claimed newly discovered evidence and ineffective assistance of counsel. Id. at 5. He said that the day after his plea, a person who used his phone was willing to admit that he used the phone on the date at issue. Id. Petitioner claimed his counsel never informed him "on how to withdraw my plea or what grounds were needed[.]" Id. The circuit court, on October 10, 2013, dismissed the motion as being insufficient on its face, without prejudice to Petitioner filing an amended motion. Ex. N. With respect to the first ground, the newly discovered evidence claim, the court noted its insufficiency because Petitioner failed to attach an affidavit from a person whose testimony is necessary to factually support the claim, or an explanation why the affidavit could not be obtained. Id. With regard to both grounds, the court found the motion to be conclusory, lacking specific facts to support the claims. Id.

         Thereafter, Petitioner moved to withdraw his plea. Ex. O. He renewed his claims of newly discovered evidence and ineffective assistance of counsel. Id. The circuit court denied the motion, construed to be an untimely motion pursuant to Rule 3.170(1), Fla. R. Crim. P., or alternatively, an insufficient Rule 3.850 motion. Ex. P. The court noted Petitioner's failure to attach an affidavit and the motion's insufficiency. Id.

         Petitioner sought an extension of time to file a Rule 3.800(c) motion. Ex. Q. He then filed a motion to reduce his sentence pursuant to Rule 3.800(c). Ex. R. The court denied both, finding them untimely and without merit. Ex. S. Pointedly, the court noted that the sentence was imposed pursuant to a negotiated plea agreement, and as the plea agreement is a contract, Petitioner "cannot change the terms of that contract by filing a rule 3.800(c) motion." Id. (citation omitted).

         On April 2, 2014, Petitioner filed another Rule 3.850 motion. Ex. T. Petitioner claimed the ineffective assistance of counsel for failure to investigate and newly discovered evidence. Id. at 5. Petitioner asserts that his failure to present an affidavit or provide reason for not submitting an affidavit with his prior Rule 3.850 motion was the result of counsel's failure to inform him that it was necessary to support his motion. Id. The circuit court found the motion to be successive, concluding that the court already ruled upon an amended motion. Ex. U. As such, the court denied the post conviction motion with prejudice. Id.


         The AEDPA governs a state prisoner's federal petition for habeas corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct. 1432 (2017). "'The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.'" Id. (quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).

Under AEDPA, when a state court has adjudicated the petitioner's claim on the merits, a federal court may not grant habeas relief unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " id. § 2254(d)(2). A state court's factual findings are presumed correct unless rebutted by clear and convincing evidence.[4] Id. § 2254(e)(1); Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir. 2011).
..."It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." [Harrington v. Richter, 562 U.S. 86, 101 (2011)] (citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). The Supreme Court has repeatedly instructed lower federal courts that an unreasonable application of law requires more than mere error or even clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer, 538 U.S. at 75 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."); Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("[A]n unreasonable application of federal law is different from an incorrect application of federal law.").

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013), cert. denied, 135 S.Ct. 67 (2014).

         In applying AEDPA deference, the first step is to identify the last state court decision that evaluated the claim on its merits. Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016).[5] Regardless of whether the last state court provided a reasoned opinion, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011); see also Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

         Where the last adjudication on the merits is unaccompanied by an explanation, the petitioner must demonstrate there was no reasonable basis for the state court to deny relief. Id. at 98. "[A] habeas court must determine what arguments or theories supported or, as here, 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 in a prior decision of [the] Court." Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.

         Although the § 2254(d) standard is difficult to meet, it was meant to be difficult. Indeed, in order to obtain habeas relief, "a state prisoner must show that the state court's ruling on the claim being presented . . . was so lacking in justification that there was an error well understood and comprehended in existing ...

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