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Francis v. Secretary, Department of Corrections

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

June 22, 2018

RICHARD FRANCIS, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          Charlene Edwards Honeywell ' United States District Judge

         Petitioner Richard Francis, a Florida inmate, timely filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) challenging his Hillsborough County convictions. Respondent filed a response (Dkt. 7) and Francis filed a reply (Dkt. 14). Upon consideration, the petition will be DENIED.

         Procedural History

         Francis pleaded guilty to two counts of burglary of a dwelling, two counts of grand theft, two counts of criminal mischief, and one count of opposing or obstructing an officer without violence. (Dkt. 9, Ex. 2). In accordance with the negotiated plea agreement, he received an overall sentence of 15 years in prison. (Dkt. 9, Exs. 2, 3). Francis did not appeal. When Francis filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, the state court denied one claim and struck two claims with leave to amend. (Dkt. 9, Exs. 4, 5). Instead of filing an amended motion, Francis sought to voluntarily dismiss his postconviction motion without prejudice. (Dkt. 9, Ex. 6). The state court denied his request, but gave him additional time to file an amendment. (Dkt. 9, Ex. 7). After Francis failed to timely file an amendment, the state court entered a final order denying his postconviction motion with prejudice. (Dkt. 9, Ex. 8). The state court also denied Francis's subsequent motion for rehearing. (Dkt. 9, Exs. 9, 10). The state appellate court per curiam affirmed the denial of postconviction relief. (Dkt. 9, Ex. 11).

         Standard Of Review; Exhaustion Of State Remedies and Procedural Default

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner is in custody “in violation of the Constitution or laws or treaties of the United States.” 2 8 U.S.C. § 2254(a). A federal habeas petitioner must exhaust his claims for relief by raising them in state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”).

         The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts that court to the federal nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971). “If the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

         Discussion

         Grounds One And Two

         In Ground One, Francis argues that counsel was ineffective in failing to investigate, interview, or depose “victims and/or witnesses” and in failing to obtain “specific/pertinent information.” (Dkt. 1, p. 7). He claims that victim Linda Bello would have stated that he did not burglarize her home but was only located in the backyard. Francis also argues that three officers stated in their reports that Francis was located in the backyard and that Officer Palmerton's report indicated Francis's burglary attempt was unsuccessful. He also appears to claim that counsel could have uncovered information that would show he did not actually burglarize the home of another victim, Matthew Hinnrichs, “because it possessed no curtilage/plumbing/electricity.” (Id., p. 10). In Ground Two, Francis argues that counsel was ineffective in failing to “preserve or invoke” his right to a speedy trial, and that he was prejudiced as a result of counsel's performance. (Id., p. 14). Francis brought generalized versions of these claims in his postconviction motion. In a February 13, 2013 order, the postconviction court struck the claims with leave to amend because they were facially insufficient:

In claim one, Defendant alleges ineffective assistance of counsel for failing to investigate, interview, or depose the victims or witnesses, and for failing to “obtain specific and pertinent information.” Defendant alleges that court records reveal that counsel deposed neither the victims nor the witnesses.
In claims of ineffective assistance of counsel for failing to call a witness, facially sufficient postconviction motions “must set forth four requirements: (1) the identity of the prospective witness; (2) the substance of the prospective witness's testimony; (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial; and (4) an assertion that the witness was available to testify.” Barthel v. State, 882 So.2d 1054, 1055 (Fla. 2d DCA 2004) (citing Nelson v. State, 875 So.2d 579, 582-83 (Fla. 2004)). An ineffective assistance of counsel claim is insufficient if the defendant does not indicate what favorable information counsel could have elicited from the witness. See Reaves v. State, 826 So.2d 932, 940 (Fla. 2002).
The Court finds Defendant's claim to be facially insufficient. Defendant fails to identify the persons he alleges counsel should have deposed, fails to allege with any specificity what those persons would have said at their deposition, and fails to allege how he was prejudiced. See Rosa v. State, 27 So.3d 230, 230-231 (Fla. 2d DCA 2010). Additionally, Defendant fails to identify with any specificity what “pertinent” information counsel should have obtained or how he was prejudiced by the lack of this information. See Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989) (finding that a defendant may not simply file a rule 3.850 motion containing conclusory allegations of ineffective assistance of trial counsel expecting to receive an evidentiary hearing). Accordingly, ground one of Defendant's Motion is hereby dismissed without prejudice to any right Defendant may have to file a facially sufficient claim subject to all the requirements and limitations of Florida Rule of Criminal Procedure 3.850 within thirty days from the date of this Order. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007) (“[W]hen a defendant's initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule's or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.”
In claim three, Defendant alleges ineffective assistance for violating his speedy trial right. Defendant alleges that under Florida Rule of Criminal Procedure 3.191, speed[y] trial begins to run when an accused is taken into custody and continues to run even if the state ...

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