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Thompson v. Secretary, Florida Department of Corrections

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

August 14, 2017



          MARCIA MORALES HOWARD United States District Judge

          I. Status

         Petitioner Enrico L. Thompson, an inmate of the Florida penal system, initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus By a Person in State Custody (Petition, Doc. 1). In the Petition, Thompson challenges a 2008 state court (Duval County, Florida) judgment of conviction for burglary of a dwelling. Thompson also filed a Memorandum in Support of his Petition. See Petitioner's Reply to State's Response and Memorandum of Law in Support of Petition for Writ of Habeas Corpus 28 U.S.C. § 2254 (Pet. Memo., Doc. 3). Respondents submitted an Answer to Petition for Writ of Habeas Corpus. (Response, Doc. 19) with exhibits (Resp. Ex.). Thompson filed a Reply. See Petitioner's Reply to State's Response and Memorandum of Law in Support of Petition for Writ of Habeas Corpus 28 U.S.C. § 2254 (Reply, Doc. 20). This case is ripe for review.

         II. Procedural History

         On May 30, 2008, the State of Florida charged Thompson by information in count one with burglary of a dwelling and in count two with resisting a law enforcement officer without violence.[1] Resp. Ex. 1 at 10. Subsequently, the State filed notices of intent to classify Thompson for purposes of sentencing as a Habitual Felony Offender (HFO) and a Prison Release Reoffender (PRR). Id. at 11, 19.

         Thompson proceeded to trial on October 7, 2008. Resp. Ex. 3A. At trial, the State presented evidence that Jacksonville Sheriff's Officers Rodgers and Ulsch were dispatched to 1829 East 25th Street on May 7, 2008, for a reported burglary in progress. Resp. Ex. 3A at 217-19, 256-57. Located at the address was a single level house surrounded on all four sides by a chain link fence. Id. At the time, the house was an unoccupied rental, and no one had lived there for four months. Id. at 327-28. Upon arrival, Rodgers saw Thompson in the back yard or side yard inside the fence, crouched over or standing (bent over at the waist) next to a large object, touching its sides and top, and looking in the direction of Rodgers, who was driving a marked police car. Id. at 223-24, 226-28. When Rodgers exited his patrol vehicle, Thompson hopped the fence and ran.[2] Id. at 228. Rodgers and Ulsch chased Thompson, who hopped several fences.[3]

         Id. at 229-30. After Ulsch apprehended and handcuffed Thompson, Rodgers searched him and found a pocketknife in his pocket before placing Thompson in the patrol car. Id. at 230-31, 241, 265. Rodgers also determined from Thompson's state ID card that he lived at 1803 East 25th Street, approximately three or four houses away from 1829. Id. at 235.

         Returning to 1829 East 25th Street, Rodgers determined that the large object was an air conditioning (AC) unit that had been detached completely from the rear of the house and was lying on its side.[4] Id. at 232, 243, 271. The state presented evidence that the AC unit previously had been fully attached to the back side of the 1829 residence and completely surrounded by a cage comprised of black steel tubing, secured by a key padlock. Id. at 239-40, 297, 332-33, 347. The lock, which had what appeared to be saw marks, had been removed, either cut off or beaten off, id. at 285, 308, 347, and the cage was damaged, id. at 280. Wires were sticking out of the house from where the AC unit had been wired into the house, id. at 240, 297, 308, and the electrical conduit and copper piping on the AC unit had been cut to detach it from the house, id. at 297. Law enforcement found a two-by-four leaned up against the fence, less than a foot away from the AC unit, and a black t-shirt draped over the AC unit.[5] Id. at 240, 291, 297.

         At the close of the State's case, defense counsel moved for a judgment of acquittal. Id. at 351-52. Among other reasons, defense counsel argued that the State had “failed to prove there was the ability [to commit the crime], whether or not it was done stealthily or not, failed to present any evidence in that regards to this.” Id. at 352. In response, the State argued in part that Thompson intended to commit the offense of theft with intent to steal the air-conditioning unit. Id. at 353. The Court then ruled:

THE COURT: Okay. The State has presented a prima facie case that if the jury chooses to believe it that the defendant entered the curtilage of this place which was designed to be a dwelling with the intent to commit a theft therein. The intent need not be to steal the whole air-conditioner, but if he was going to steal copper wiring out of it, that makes whether he could lift the air-conditioner or not irrelevant.
[DEFENSE COUNSEL]: Your Honor, no evidence has been presented as to that either.
THE COURT: Well, what evidence could there be of any intent other than his acts that he did? I'm just answering your statement about his ability.
I don't think they have to show he had the ability to carry that air-conditioner off to prove intent to commit the offense of theft in there. So I'll deny the motion for judgment of acquittal.

Id. In closing argument, the State argued that

The AC unit was right next to a fence, a fence going over to the other property. The AC unit was a foot or less than a foot from a very convenient lever or some kind of moving device as Officer Campanaro told you, a two by four. Already propped up on the fence. The defendant already had his hands ready to go to try to move the AC unit to get it up and over the fence.

Resp. Ex. 3B at 389; see also id. at 415 (“That two by four just happened to be a great way to get an air-conditioning unit over the fence.”). But the State also advanced for the first time the theory that Thompson “was trying to steal either the AC unit or parts of the AC unit. He was intending to steal it or steal its parts.”[6] Resp. Ex. 3B at 389.

         Thompson did not testify. Resp. Ex. 3A at 354-56. During trial, Thompson responded to the court's questions twice. First, prior to opening statements, a juror belatedly realized that she and a testifying officer were neighbors. Id. at 201-07. After both counsel stated that they did not have a problem with the juror remaining on the jury, the court asked Thompson if he agreed, and he responded, “Yes, sir.” Id. at 207. Next, after the court advised Thompson of his right to testify or not testify, the court asked:

THE COURT: You understand all that?
THE COURT: Have you had a chance to discuss that with your attorneys?
THE COURT: Have you made a decision about whether you want to take the stand or not?
THE DEFENDANT: No, I'm not, sir.
THE COURT: You don't want to take the stand?

Resp. Ex. 3A at 356.

         On October 7, 2008, a jury found Thompson guilty of burglary of a dwelling, as charged in count one. Resp. Exs. 1 at 39; 3B at 450-51. Through counsel, Thompson filed a motion for new trial, followed by an amended motion for new trial, which the court denied. Resp. Ex. 1 at 97-102.

         On November 16, 2008, defense counsel moved to continue Thompson's sentencing, explaining that she was “going to have Mr. Thompson examined for two purposes.” Id. at 100. Counsel disclosed no further details. At sentencing on December 10, 2008, the court asked Thompson if he wanted to make any statements, and he replied, “No, sir.” Resp. Ex. 1 at 125-26. His counsel relied on the presentence investigation report and argued in mitigation:

Your Honor, the report also reflects Mr. Thompson's background as well as indicating that he has always been - he was in slow classes throughout. And in review of several documents, as well as a report indicates that his IQ is a 59 in the verbal, a performance of 63, and a full scale of 57. Indicating that he borders on the borderline of retarded[7] based on those reports and based in regards to his school records.

Id. at 127.[8] The trial court found that Thompson qualified as an HFO and PRR. At the prosecutor's request, the court imposed the maximum sentence of twenty years of imprisonment as an HFO, with fifteen of those years to be served as a minimum mandatory as a PRR. Id. at 129-30. After imposing sentence, the court asked Thompson:

THE COURT: . . . Do you want to file an appeal?
THE COURT: Can you afford to hire your own lawyer for the appeal?
THE DEFENDANT: (Shakes head negatively.)
THE COURT: Do you want me to appoint the public defender?
THE DEFENDANT: (Nods head affirmatively.)

Id. at 34.

         Thompson filed a notice of appeal to the First District Court of Appeal (First DCA). Id. at 85-86. With the benefit of counsel, Thompson then filed a motion to correct sentencing error in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) (Resp. Ex. 4), which was summarily denied by order dated March 10, 2009.

         Resp. Ex. 5. Through counsel, Thompson filed an initial brief in the appellate court, challenging only the constitutionality of the habitual felony offender statute (Resp. Ex. 6), and the state filed an answer brief. Resp. Ex. 7. Issuing a written opinion, the First DCA affirmed Thompson's judgment of conviction and sentence on December 15, 2009. Resp. Ex. 8; Thompson v. State, 23 So.3d 235 (Fla. 1st DCA 2009). Thompson did not file a notice to invoke the discretionary jurisdiction of the Florida Supreme Court. Resp. Ex. 9.

         On January 29, 2010, Thompson filed a pro se motion for reduction or modification of sentence in the state circuit court pursuant to Florida Rule of Criminal Procedure 3.800(c). Resp. Ex. 9. Without an evidentiary hearing, the court summarily denied Thompson's Rule 3.800(c) motion on April 12, 2010. Id.

         On November 12, 2010, Thompson filed a pro se motion to vacate pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. 10. On April 4, 2012, Thompson filed a pro se “Motion for Permission to Leave to Supplement Defendant's Original Motion for Post Conviction Relief, ” which the court denied. Resp. Ex. 11. The state circuit court then summarily denied Thompson's Rule 3.850 motion to vacate without evidentiary hearing by order dated September 9, 2013. Resp. Ex. 13. Thompson filed a notice of appeal to the Florida First DCA (Resp. Ex. 14) and a pro se initial brief in the appellate court (Resp. Ex. 15). The First DCA per curiam affirmed the circuit court's summary denial of post conviction relief without opinion. Resp. Ex. 16. Thompson v. State, 136 So.3d 1219 (Fla. 1st DCA 2014) (table).

         III. Evidentiary Hearing

         In a habeas corpus proceeding, the burden is on the petitioner to establish the need for a federal evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted); Jonesv. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record ...

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