United States District Court, M.D. Florida, Jacksonville Division
REPORT & RECOMMENDATION
Patricia D. Barksdale United States Magistrate Judge
a lawyer and proceeding in forma pauperis under 28 U.S.C.
§ 1915, John Allen sues two state circuit judges (Andrew
Decker and John Peach), two state prosecutors (Sheena Holland
and Gary Brown), and a state public defender (Donald Rudser),
under 42 U.S.C. § 1983 and the Americans With
Disabilities Act, 42 U.S.C. §§ 12101-12213, based
on alleged happenings in state criminal proceedings against
him. Doc. 5. The Court previously gave him an opportunity to
amend the complaint to correct deficiencies. Doc. 4.
Concluding the amended complaint seeks monetary relief
against defendants immune from such relief and fails to state
claims on which relief may be granted, I recommend dismissal
amended complaint and exhibits attached to it, Allen alleges
is a black man. Doc. 5 at 3. On February 22, 2001, Judge
Peach sentenced him to serve five years' imprisonment for
possessing a firearm as a convicted felon, one year'
imprisonment for unlawfully displaying a firearm, and, based
on two misdemeanor convictions, five years' imprisonment
for driving under the influence (“DUI”), with all
of the terms to run concurrently. Doc. 5 at 6-7, 12-13; Doc.
5-1 at 4. Brown had been the prosecutor, Rudser had been the
assistant public defender (or court-appointed counsel), and
the late Judge David Bembry had been one of the judges. Doc.
5 at 13.
15 years later, in December 2015, a fire destroyed
Allen's residence and belongings. Doc. 5 at 3. In March
2016, he entered a plea agreement on criminal mischief
charges, which resulted in the imposition of “two terms
of misdemeanor probation.” Doc. 5 at 3; Doc. 5-1 at 3.
2016, Allen was involved in a one-car crash and arrested for
his third incident of misdemeanor DUI. Doc. 5 at 4. The next
day, County Judge Sonny Scaff released him on his own
recognizance. Doc. 5 at 4.
2016, Allen was arrested at his home and returned to jail.
Doc. 5 at 4. The next week, Holland, a white prosecutor,
changed the charge against him to indicate it was his
fourth-not third-DUI. Doc. 5 at 4; Doc. 5-1 at 4-5. Allen
sent Judges Decker and Scaff several requests for his
release, and he would have been released had Holland not told
Judge Decker he was a career habitual violent felony
offender. Doc. 5 at 4; Docs. 5-2, 5-5, 5-8.
was ordered to appear in court in August 2016 for a hearing
on an alleged probation violation, but the captain of the
Hamilton County Jail would not let him appear. Doc. 5 at 4;
that month, Allen filed a habeas petition in state court.
Doc. 5 at 5; Doc. 5-1. His defense counsel, David Valin,
visited him in jail and told him Holland had intentionally
changed the misdemeanor DUI charge to a felony so she
“could state that [he] was a violent career habitual
felony offender.” Doc. 5 at 5. Valin also told him
Judge Decker would have released him if he had not been
charged with having committed a felony DUI. Doc. 5 at 5.
appeared for another hearing in August, during which the
felony DUI charge was “dropped back to a
misdemeanor.” Doc. 5 at 5. A few days later, he filed a
complaint against Holland and Valin with The Florida Bar.
Doc. 5 at 5; Doc. 5-4. The complaint was returned because he
had included more than one lawyer, and he did not refile
Doc. 5 at 5; Doc. 5-4. While incarcerated in the Hamilton
County Jail, he filed several other habeas petitions. Doc. 5
at 6; Doc. 5-6.
September 2016, Valin visited Allen again and provided him
with copies of his two earlier DUI convictions. Doc. 5 at 6.
Valin told him they were illegal and “he could easily
have them removed from [Allen's] record.” Doc. 5 at
6. Valin said “there was a lot of illegal activity
going on in the Hamilton County court system” at the
time of those convictions. Doc. 5 at 6. Valin gave him that
information because of the bar complaint. Doc. 5 at 6.
reviewed the DUI convictions and a 2009 civil lien and
realized for the first time he had been sentenced to serve
five years' imprisonment on the DUI convictions, running
concurrently with the five years' imprisonment for
possessing a firearm as a convicted felon and one year'
imprisonment for unlawfully displaying the firearm. Doc. 5 at
6-7; Doc. 5-7. That had not been part of his plea agreement.
Doc. 5 at 6. He believes that is why, when he filed federal
habeas petitions in 2002, 2003, and 2004, the Hamilton County
court indicated it possessed no record of any proceedings.
Doc. 5 at 7. This information is “new evidence”
to him. Doc. 5 at 14.
in September 2016, Allen appeared in court, the arson charge
was dismissed “because of the Habeas Corpus Petition,
” and he was released from jail. Doc. 5 at 7. Now he is
being prosecuted a second or third time for the latest DUI.
Doc. 5 at 7. He “addressed the issue of the D.U.I. in
county court, ” and Judge Scaff told him that was a
matter between Allen and his counsel. Doc. 5 at 8. Allen
argued he had been subjected to double jeopardy based on
being charged for the same offense ...