United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell ' United States District Judge
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
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).
Of Review; Exhaustion Of State Remedies and Procedural
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.”).
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).
One And Two
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
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 ...