United States District Court, M.D. Florida, Jacksonville Division
ENRICO L. THOMPSON, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondents.
MORALES HOWARD United States District Judge
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.
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. 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.
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
Id. at 228. Rodgers and Ulsch chased Thompson, who
hopped several fences.
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.
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. 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. Id. at 240, 291, 297.
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
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.” Resp. Ex. 3B at 389.
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
THE COURT: You understand all that?
THE DEFENDANT: Yes, sir.
THE COURT: Have you had a chance to discuss that with your
THE DEFENDANT: Yes, sir.
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?
THE DEFENDANT: No, sir.
Resp. Ex. 3A at 356.
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.
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 based on those reports and based in
regards to his school records.
Id. at 127. 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 DEFENDANT: Yes.
THE COURT: Can you afford to hire your own lawyer for the
THE DEFENDANT: (Shakes head negatively.)
THE COURT: Do you want me to appoint the public defender?
THE DEFENDANT: (Nods head affirmatively.)
Id. at 34.
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.
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.
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.
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
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 ...