United States District Court, M.D. Florida, Jacksonville Division
ALVA W. FLEMING, Petitioner,
SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.
an inmate of the Florida penal system, initiated this case by
filing a pro se Petition Under 28 U.S.C. § 2254 for a
Writ of Habeas Corpus (Doc. 1) (Petition) on September 2,
2014. He is proceeding on an Amended Petition (Doc. 19)
(Amended Petition), filed November 15, 2016. He challenges a
2009 state court (Duval County) judgment of conviction for
trafficking in cocaine and possession of more than twenty
grams of cannabis. He is serving a 25-year prison sentence.
Respondents contend that the Amended Petition is untimely and
the three grounds raised do not relate back to the
timely-filed Petition; alternatively, Respondents address the
substance of the three claims. See Motion to Dismiss
or Alternatively Supplemental Answer (Doc. 20)
(Motion/Response). Petitioner filed a Reply (Doc. 21)
(Reply). The case is ripe for review.
Timeliness of Amended Petition
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
amended 28 U.S.C. § 2244 by adding the following
(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
28 U.S.C. § 2244(d).
does not dispute Respondents' calculations that show the
original Petition was timely filed, but the Amended Petition
was not. The Court has reviewed the calculations
and agrees with Respondents' conclusion. Petitioner does
not assert any basis for equitable tolling and upon review of
the file, the Court finds equitable tolling is not warranted.
Petitioner does, however, contend that the claims in the
Amended Petition relate back to the claims in the original
amendment to a pleading relates back to the date of the
original pleading when . . . the amendment asserts a claim or
defense that arose out of the conduct, transaction, or
occurrence set out--or attempted to be set out--in the
original pleading.” Fed.R.Civ.P. 15(c)(1)(B). An
amendment to a habeas petition may relate back “[s]o
long as the original and amended petitions state claims that
are tied to a common core of operative facts.”
Mayle v. Felix, 545 U.S. 644, 664 (2005). A new
claim, however, does not meet the standard and, thus,
“does not relate back . . . when it asserts a new
ground for relief supported by facts that differ in both time
and type from those the original pleading set forth.”
Id. at 650. The terms “conduct, transaction,
or occurrence” are not synonymous with “trial,
conviction or sentence.” Id. at 664.
original Petition, Petitioner alleged that his trial counsel
was ineffective for failing to: (1) depose and investigate
material witnesses; (2) depose Detective Gonzales to confirm
his position on the warrantless traffic stop; (3) object to
hearsay statements of D.A. Bishop and obtain the identity of
the confidential informant; and (4) suppress or dismiss the
information and call certain named witnesses to corroborate
his claim. See Petition at 5-10. He indicated that
each ground was raised in his state court postconviction
motion filed pursuant to Florida Rule of Criminal Procedure
3.850. See id. After reviewing the Respondents'
initial response, Petitioner concluded that his claims were
insufficiently pled, so he requested permission to file the
Amended Petition. See Docs. 14, 15. In his Amended
Petition, he raises three grounds: (1) trial counsel was
ineffective for failing to investigate and depose witnesses
and present a viable defense; (2) trial counsel was
ineffective for failing to depose and investigate three
witnesses that Petitioner advised counsel to call on his
behalf; and (3) the trial court erred by denying his motion
for disclosure of the confidential informant's identity
and to suppress physical evidence. See Amended
Petition at 6-21.
determining whether a claim “relates back” to an
[t]he key consideration is that the amended claim arises from
the same conduct and occurrences upon which the original
claim was based. . . . When the nature of the amended claim
supports specifically the original claim, the facts there
alleged implicate the original claim, even if the
original claim contained insufficient facts to support
it. One purpose of an amended claim is to fill in facts
missing from the original claim.
Dean v. United States, 278 F.3d 1218, 1222 (11th
Cir. 2002) (per curiam) (emphasis added).The Court finds that
the first two claims in the Amended Petition alleging
ineffective assistance of counsel relate back to the original
Petition. Although the claims in the original Petition were
not artfully crafted, the Amended Petition “fill[s] in
facts missing from the original claim[s].” Id.
third claim in the Amended Petition is a closer call.
Petitioner now attempts to raise a claim that the trial court
erred by denying his motion for disclosure of the
confidential informant's identity and to suppress
physical evidence-a claim that he raised on direct appeal.
The most similar claims in the original Petition were grounds
three and four, where Petitioner argued his counsel was
ineffective for failing to obtain the identity of the
confidential informant and for failing to suppress or dismiss
the information and call certain named witnesses to
corroborate his claim-claims he raised in his postconviction
proceeding. There can be no real dispute that a claim
regarding trial court error is entirely different than a
claim alleging ineffective assistance of counsel.
Nevertheless, at least part of the new claim regarding the
identity of the confidential informant arguably arises from
the same common core of operative facts. Given that it is
arguable whether this claim relates back to the original
Petition, the Court will address it.
Standard of Review
governs a state prisoner's federal habeas corpus
petition. See 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, 565 U.S. 34, 38 (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. Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir.
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766 (2010)
(internal quotation marks omitted). “A state
court's determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court's
decision.” Harrington v. Richter, 562 U.S. 86,
101 (2011) (internal quotation marks omitted). “It
bears repeating that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (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');">540 U.S. 12, 18 (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 (2000) (“[A]n
unreasonable application of federal law is different
from an incorrect application of federal
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th
federal court reviewing the judgment of a state court must
first identify the last adjudication on the merits. It does
not matter whether that adjudication provided a reasoned
opinion because section 2254(d) ‘refers only to a
decision' and does not ‘requir[e] a statement of
reasons.'” Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert.
granted, 137 S.Ct. 1203 (2017), (quoting
Richter, 562 U.S. At 98). 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.”
Richter, 562 U.S. at 99 (citation omitted). When the
last adjudication on the merits “‘is
unaccompanied by an explanation, ' a petitioner's
burden under section 2254(d) is to ‘show there was no
reasonable basis for the state court to deny
relief.'” Wilson, 834 F.3d at 1235
(quoting Richter, 562 U.S. at 98). “‘[A]
habeas court must determine what arguments or theories
supported or . . . 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.'” Id.
(quoting Richter, 562 U.S. at 102).
When the reasoning of the state trial court was reasonable,
there is necessarily at least one reasonable basis on which
the state supreme court could have denied relief and our
inquiry ends. In this way, federal courts can use previous
opinions as evidence that the relevant state court decision
under review is reasonable. But the relevant state court
decision for federal habeas review remains the last