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Allen v. Decker

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

November 9, 2017

John Henry Allen, Plaintiff,
v.
Andrew J. Decker, III, et al., Defendants.

          REPORT & RECOMMENDATION

          Patricia D. Barksdale United States Magistrate Judge

         Without 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 with prejudice.

         I. Amended Complaint

         In the amended complaint and exhibits attached to it, Allen alleges these facts.

         Allen 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.[1] 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.

         Almost 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.

         In June 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.

         In July 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.

         Allen 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; Doc. 5-3.

         Later 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.

         Allen 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 it.[2] 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.

         In 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.

         Allen 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.

         Later 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 ...


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