United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
Michael J. Frank United States Magistrate Judge
Drinkard, represented by counsel, has filed an amended
petition for writ of habeas corpus under 28 U.S.C. §
2254. (Doc. 5). Respondent (“the State”)
answered, providing relevant portions of the state court
record. (Doc. 13). Drinkard replied. (Doc. 23). The
undersigned concludes that no evidentiary hearing is required
for the disposition of this matter, and that Drinkard is not
entitled to habeas relief.
Background and Procedural History
November 26, 2011, Drinkard killed Germaine Bindi when the
Ford Mustang he was driving struck Victor and Germaine
Bindi's vehicle on Highway 98. Drinkard was charged in
Santa Rosa County Circuit Court No. 2011-CF-1806, with the
Count 1 Vehicular homicide of Germaine Bindi by
operation of a motor vehicle in a reckless manner likely to
cause death or great bodily harm to another in violation of
Section 782.071(1)(a), Florida Statutes;
Count 2 Manslaughter of Germaine Bindi by act or
culpable negligence by driving at a high rate of speed and/or
racing another vehicle and/or weaving in and out of traffic
and/or driving recklessly, in violation of Section 782.07,
Florida Statutes; and
Count 3 Racing on a highway, in violation of Section
316.191(2)(a), Florida Statutes.
(Doc. 13, Ex. C). The State explained its charging decision
at a pre-trial hearing on Drinkard's motion for a
statement of particulars:
MS. KINSEY [Prosecutor]: And if it helps, Mr. Wade [defense
counsel], as an officer of the court, I can tell you that the
facts of the reckless driving for Count 1 and Count 2 are the
same set of facts, which is what I think you were trying to
MR. WADE [Defense counsel]: So it's the State's
representation then that the factual basis of both would be
MS. KINSEY: Yes. It's based on the same set of facts -
MR. WADE: Okay.
MS. KINSEY: - which I think will clear a lot up for you. And
I have no problem with that, announcing that. And ultimately,
if he is convicted of both counts, vehicular homicide and
manslaughter, we would only be able to proceed to sentencing
on one of the two cases.
THE COURT: Yeah. That's correct. It's one death,
MS. KINSEY: Yes, sir.
THE COURT: Right. He can't be convicted of both.
MS. KINSEY: Right.
MR. WADE: I agree with that[.]
(Ex. D, p. 4). Drinkard elected to be tried, and the jury
rendered the following verdict:
Count 1 Guilty of Reckless Driving; a lesser
Count 2 Guilty of Manslaughter as charged in the
Count 3 Not guilty of Racing on a Highway.
(Ex. K, p. 958 (reading of verdict); Ex. L (written
filed a motion for arrest of judgment, arguing that
constitutional double jeopardy principles prohibited him from
being convicted and sentenced on the manslaughter count
(Count 2) because the jury found him not guilty of vehicular
homicide on Count 1, and vehicular homicide is a lesser
included offense of manslaughter. (Ex. M). Drinkard argued in
the alternative that the jury's finding of guilt with
respect to manslaughter was legally inconsistent with its
finding him not guilty of vehicular homicide. (Ex. M). The
trial court heard ...