United States District Court, N.D. Florida, Gainesville Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
28 U.S.C. § 2254 PETITION
cause comes on for consideration upon the Magistrate
Judge's Report and Recommendation dated April 17, 2018.
(ECF No. 28). The parties have been furnished a copy of the
Report and Recommendation and have been afforded an
opportunity to file objections pursuant to Title 28, United
States Code, Section 636(b)(1). Petitioner has filed
objections at ECF No. 29. I have made a de novo review based
on those objections.
considered the Report and Recommendation, and the timely
filed objections, I have determined that the Report and
Recommendation should be adopted. The Court concurs with the
Magistrate Judge in the well reasoned, 92-page Report and
Recommendation, but writes separately about Ground Four,
which petitioner specifically addresses in his objections.
Ground Four, petitioner contends his conviction on Count II
(charging written threats to kill or do bodily injury in
violation of Fla. Stat. 836.10) constitutes a fundamental
miscarriage of justice because the evidence was insufficient.
Specifically, petitioner alleges that because Ms.
Nowacki's co-worker opened the April 28, 2006, letter and
gave it to authorities before Ms. Nowacki saw it, the victim
was not the one who received the threatening letter and
therefore, the state did not prove a key element for Count
II. Petitioner did not raise this issue on direct appeal, but
claims that this was a newly discovered issue and is entitled
to federal review under the "fundamental miscarriage of
initial matter, the Court agrees with the Report and
Recommendation that this issue is procedurally defaulted.
Simply because petitioner only recently conceived the legal
basis for his sufficiency-of-the-evidence claim does mean the
evidence is "new." Petitioner should have raised
this issue in the state courts. But even if he had, there
still would be no merit to his claim because liability under
the statute is not affected by Ms. Chu opening the letter
rather than Ms. Nowacki.
statute that petitioner was charged with violating in Count
II is Fla Stat. § 836.10, which provides:
Written threats to kill or do bodily injury; punishment.- Any
person who writes or composes and also sends or procures the
sending of any letter, inscribed communication, or electronic
communication, whether such letter or communication be signed
or anonymous, to any person, containing a threat to kill or
to do bodily injury to the person to whom such letter or
communication is sent, or a threat to kill or do bodily
injury to any member of the family of the person to whom such
letter or communication is sent commits a felony of the
petitioner committed all the acts necessary to violate the
statute. He wrote and sent a letter containing a threat to
kill the person to whom he sent the letter - Ms. Nowacki. The
statute contains no exception for cases in which the letter
does not reach its intended victim and, contrary to
petitioner's representations, does not use the word
“recipient” anywhere within the statute.
he does not explicitly cite to the case, the petitioner
appears to be relying upon State v. Wise, 664 So.2d
1028, 1030 (Fla. 2nd DCA 1995), since much of the language in
Ground 4 appears to be directly lifted from that case.
See Am. Pet. 19-20. That case does not support
petitioner's argument, however. In Wise, a
prisoner at Avon Park Correctional Center, which is in Polk
County, sent threatening letters to kill to a woman who
received them in Pinellas County. He was charged in Pinellas
County. The defendant successfully moved for dismissal
because of lack of venue by arguing that he sent the letters
in Polk County, not Pinellas County. The Second DCA reversed,
but made clear it was only doing so to expand the scope of
the proper venue in cases under the statute rather than
requiring both sending by the defendant and receipt by the
[T]he act of sending under this statute involves not only the
depositing of the communication in the mail or through some
other form of delivery, but also encompasses the receipt of
the communication by the person being threatened.
When the deposit in the mail is made in one county and the
communication is received in another county, the act of
"sending" occurs, for venue purposes, in more than
one place. Venue is proper in either county because an act
constituting a part of the offense occurred in both places.
See § 910.05, Fla.Stat.
State v. Wise, 664 So.2d 1028, 1030 (Fla. 2nd DCA
1995). At this point in the opinion, however, in footnote
one, the Second DCA made sure to clarify the scope of its
This is not to say that prosecution would not be appropriate
in a case in which a threatening letter was mailed but not
received by the intended recipient. That issue is not before
us on the facts of this case. Here, we merely conclude that
where an intended recipient does in fact receive a
communication in a different venue from the place of mailing,
venue is appropriate in either locale.
Id. In short, nothing in the language of the statute
or the language of the case apparently relied upon by
petitioner -- or any other case found by the Court --
requires that the threatening message actually be received by
the intended victim. Therefore, Ground Four is ...