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McElroy v. Secretary, Department of Corrections

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

September 18, 2017

HERBERT LEWIS McELROY, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          Charlene Edwards Honeywell United States District Judge

         This matter comes before the Court on Petitioner's petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 (“petition”) (Dkt. 1), Respondent's supplemental response (Dkt. 27), and Petitioner's supplemental reply (Dkt.29). Upon consideration, the petition will be DENIED.

         I. BACKGROUND

         Petitioner was charged by Amended Information with nine drug-related charges (Counts 1 and 3-10), felonious possession of firearms (Count 2), and fleeing or eluding a law enforcement officer (Count 11) (Respondent's Ex. 1). On March 10, 2008, Counts 2 and 11 were severed from the remaining counts (Respondent's Ex. 11d, p. 11). After a jury trial on March 11, 2008, Petitioner was found guilty on Counts 1 and 4-10, and guilty of a lesser included offense on Count 3 (Respondent's Ex. 2). That same day he pleaded guilty to Count 2 (Respondent's Ex. 11).[1] On May 20, 2008, Petitioner filed a motion to withdraw the plea (Respondent's Ex. 11A), which was denied on October 7, 2008 (Respondent's Ex. 11B).

         On July 22, 2008, Petitioner was sentenced to 15 years on Counts 1 and 8, 10 years on Counts 4, 6, and 9, and 5 years on Counts 3, 5, 7, and 10 (Respondent's Ex. 3). He filed an Amended Notice of Appeal on September 3, 2008 (Respondent's Ex. 4). On October 22, 2008, he was sentenced to15 years on Count 2 (Respondent's Ex. 11C). He did not file a notice of appeal with respect to Count 2. His trial based convictions and sentences were affirmed on appeal on November 10, 2010 (Respondent's Ex. 9). On November 17, 2010, Petitioner provided a Motion for Rehearing of the appellate court's decision to prison officials for mailing (Respondent's Ex. 8). That motion was received by the Florida Attorney General's Office on November 22, 2010 (Id., p. 1). The motion, however, does not appear on the appellate court's docket (Respondent's Ex. 7). The appellate court mandate issued December 6, 2010 (Respondent's Ex. 10).

         On November 24, 2010, Petitioner filed a motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure (Respondent's Ex. 11D). That motion was denied in part and dismissed in part on September 9, 2011 (Id.; Respondent's Ex. 30). Petitioner did not appeal the denial of that motion.

         On November 27, 2011, Petitioner filed a motion for post-conviction relief under Rule 3.800, Fla.R.Crim.P. (Respondent's Ex. 12). That motion was denied (Respondent's Ex. 13) and affirmed on appeal (Respondent's Ex. 18). The appellate court mandate issued October 4, 2012 (Respondent's Ex. 18A).

         On June 13, 2012, Petitioner filed a second Rule 3.850 motion (Respondent's Exs. 11D; 29). The motion was denied on August 2, 2012 (Respondent's Ex. 29). Petitioner did not appeal the denial of that motion.

         On December 3, 2012, Petitioner filed a third Rule 3.850 motion (Respondent's Exs. 11D; 19). The motion was dismissed as successive (Respondent's Ex. 19). The dismissal of that motion was affirmed (Respondent's Ex. 23), and the appellate court mandate issued on March 27, 2014 (Respondent's Ex. 26).

         On January 7, 2013, Petitioner filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel (Respondent's Ex. 27). The petition was dismissed as untimely on February 12, 2013 (Respondent's Ex. 28).

         Petitioner filed his federal habeas petition in this court on May 2, 2014 (Dkt. 1). Respondent filed a limited response arguing that the petition was time-barred (Dkt. 17). The court granted the motion to dismiss solely to the extent that Ground One of the petition was dismissed as time-barred, and directed Respondent to file a supplemental response addressing Grounds Two, Three, and Four of the petition (Dkt. 26). Respondent filed a supplemental response (Dkt. 27), to which Petitioner replied (Dkt. 29).

         II. GOVERNING LEGAL PRINCIPLES

         Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA “establishes a more deferential standard of review of state habeas judgments, ” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to “prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).

         A. Standard of Review Under the AEDPA

          Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The phrase “clearly established Federal law, ” encompasses only the holdings of the United States Supreme Court “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

         “[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the ‘contrary to' and ‘unreasonable application' clauses articulate independent considerations a federal court must consider.” Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was ...


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