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Concepcion v. Secretary, Department of Corrections

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

November 1, 2017

JOSE CONCEPCION, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          Charlene Edwards Honeywell, United States District Judge.

         This 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).

         Petitioner alleges seventeen claims for relief in the Amended Petition. For the following reasons, the Amended Petition will be denied.

         I. Procedural History

         Petitioner 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.

         After 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.

         Petitioner 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[1] 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.

         Petitioner 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.

         II. Legal Standards

         A. Standard of Review Under the Antiterrorism Effective Death Penalty Act (“AEDPA”)

         Pursuant 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; 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. 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 Cir. 2001):

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 ...

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