United States District Court, M.D. Florida, Orlando Division
Charlene Edwards Honeywell, United States District Judge.
cause is before the Court on an Amended Petition for Writ of
Habeas Corpus (“Amended Petition”) filed pursuant
to 28 U.S.C. § 2254 (Doc. 20). Thereafter, Respondents
filed a Response to the Amended Petition (Doc. 27) in
compliance with this Court's instructions. Petitioner
filed a Reply to the Response (Doc. 29).
alleges seventeen claims for relief in the Amended Petition.
For the following reasons, the Amended Petition will be
was charged by information with seven counts of sexual
activity with a child by a person in familial or custodial
authority (Counts One through Three and Six through Nine) and
two counts of lewd or lascivious molestation (Counts Four and
Five) (Doc. 28-1 at 100-109). Petitioner entered a negotiated
plea whereby he agreed to plead nolo contendere to Counts
Four and Eight, and in exchange he would receive concurrent
five-year terms in prison to be following by ten years of sex
offender probation. Id. at 111- 12. The trial court
sentenced Petitioner according to the plea agreement.
Id. at 115-26. Petitioner did not appeal.
Petitioner was released from prison, an affidavit for
violation of probation was filed, and the trial court issued
a warrant for Petitioner's arrest. Id. at
130-38. Petitioner entered a guilty plea to the violation of
probation. Id. at 139-40. The trial court sentenced
Petitioner to a two-year term of community control.
Id. at 141-45. An affidavit of violation of
community control and warrant for Petitioner's arrest was
filed. Id. at 146-57. Petitioner's community
control was reinstated. Id. at 158-59. Petitioner
again violated the terms of his community control when he
removed his mobile tracking device and was later arrested.
Id. at 181-88.
admitted to the violations, and the trial court sentenced
Petitioner to a fifteen-year term of imprisonment for Count
Four and to a twenty-five-year term of imprisonment for Count
Eight. Id. at 211-17. The trial court also entered
an order finding Petitioner qualified as a sexual predator.
Id. at 221-22. Petitioner appealed, and appellate
counsel filed an Anders brief and moved to withdraw.
Id. at 229-39. Petitioner filed a pro se
initial brief. Id. at 241-71. The Fifth District
Court of Appeal (“Fifth DCA”) affirmed per
curiam. Id. at 279.
filed a motion for post-conviction relief pursuant to Rule
3.850 of the Florida Rules of Criminal Procedure.
Id. at 292-317. After filing an amended Rule 3.850
motion, the trial court summarily denied the motion but
corrected the amount of jail credit Petitioner was to
receive. Id. at 340-49. Petitioner appealed, but the
Fifth DCA dismissed the appeal for lack of jurisdiction
because the notice of appeal was untimely filed (Doc. 28-2 at
78). Petitioner filed a petition for belated appeal, and the
Fifth DCA denied the petition. Id. at 80-101.
Standard of Review Under the Antiterrorism Effective Death
Penalty Act (“AEDPA”)
to the AEDPA, federal 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;
(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).
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. Sec'y for Dep't of
Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning
of the clauses was discussed by the Eleventh Circuit Court of
Appeals in Parker v. Head, 244 F.3d 831, 835 (11th
Under the “contrary to” clause, a federal court
may grant the writ if the state court arrives at a conclusion
opposite to that reached by [the United States Supreme Court]
on a question of law or if the state court decides a case
differently than [the United States Supreme Court] has on a
set of materially indistinguishable facts. Under the
‘unreasonable application' clause, a federal habeas
court may grant the writ if the state court identifies the
correct governing legal principle from ...