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Nuckles v. Secretary, Florida Department of Corrections

United States District Court, N.D. Florida, Pensacola Division

May 24, 2019

DONZELL K. NUCKLES, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE

         This cause is before the court on Petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (ECF No. 1). Respondent filed an answer and relevant portions of the state court record (ECF No. 26). Petitioner filed a reply (ECF No. 28).

         The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful consideration of all issues presented by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a), Rules Governing Section 2254 Cases. It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief.

         I. BACKGROUND AND PROCEDURAL HISTORY

         The relevant aspects of the procedural background of this case are established by the state court record (see ECF No. 26).[1] Petitioner was charged in the Circuit Court in and for Santa Rosa County, Florida, No. 2013-CF-112, with ten counts of sexual battery while in a position of familial or custodial authority on a child 12 years of age or older but less than 18 years of age (Counts 1-10), and two counts of lewd or lascivious molestation of a child 12 years of age or older but less than 16 years of age (Counts 11, 12) (Ex. A at 25-27). Following a jury trial on February 26-27, 2014, Petitioner was found guilty as charged on all counts (Ex. A at 512-16, Ex. C). On April 14, 2014, the trial court sentenced Petitioner to thirty (30) years in prison on each sexual battery count and fifteen (15) years in prison on each lewd or lascivious molestation count, with all sentences to run consecutively, and with pre-sentence jail credit of 449 days (Ex. A at 584-90, Ex. D).

         Petitioner, through counsel, appealed the judgment to the Florida First District Court of Appeal (“First DCA”), No. 1D14-2036 (Ex. A at 629, Ex. E). The First DCA issued the following written opinion on April 23, 2015:

ON CONCESSION OF ERROR
PER CURIAM.
After a jury trial, Donzell Nuckles was convicted of twelve counts. On appeal he challenges only one.[FN 1] As to the one count (Count 5), he argues the State failed to introduce any evidence particular to that count. The State concedes the record shows a complete lack of evidence as to Count 5. After review of the record, the State's concession is well taken.
[FN 1: Appellant challenges only his conviction and sentence on Count 5. As he raises no arguments as to any other count, his other eleven judgments and sentences are affirmed.]
The State also concedes such complete lack of evidence constitutes fundamental error. The State's concession on this point is also appropriate. A total lack of evidence constitutes fundamental error because it reaches to the foundation of the case and denies a defendant due process. F.B. v. State, 852 So.2d 226, 230 (Fla. 2003). The evidence must be “totally insufficient as a matter of law to establish the commission of a crime”-a “complete failure.” Id.; see Hobson v. State, 908 So.2d 1162, 1164 (Fla. 1st DCA 2005) (explaining that “a conviction for an offense that did not take place constitutes fundamental reversible error”).
Accordingly, the State failed to introduce evidence sufficient to sustain Appellant's conviction and sentence as to Count 5. We therefore REVERSE Appellant's conviction as to that count and REMAND with instructions to vacate Appellant's sentence as to Count 5 only.

(Ex. G). Nuckles v. State, 162 So.3d 1146 (Fla. 1st DCA 2015) (Mem). The mandate issued May 19, 2015 (Ex. H). On March 11, 2016, the trial court reversed Petitioner's conviction and vacated his sentence as to Count 5 (Ex. I). A corrected judgment and sentence rendered on March 29, 2016 (Ex. J).

         On December 14, 2015, Petitioner filed a motion for post-conviction relief in the state circuit court, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. K at 5-12). In an order rendered March 11, 2016, the circuit court dismissed the motion for failure to comply with the certification requirement of Rule 3.850(n)(2), without prejudice to Petitioner's filing an amended Rule 3.850 motion within sixty (60) days (id. at 21-22). Petitioner filed a timely amended motion (id. at 23-34). On April 22, 2016, the circuit court issued an order noting that some of Petitioner's claims were facially insufficient, and providing Petitioner an opportunity to file a second amended Rule 3.850 motion within sixty (60) days (id. at 43-45). Petitioner filed a timely second amended motion, asserting four grounds for relief (id. at 46-61). The court appointed counsel for Petitioner and held a limited evidentiary hearing on one of Petitioner's claims (see Id. at 67-68, 75-76, 88-105). On March 13, 2017, the circuit court rendered a final order denying the second amended Rule 3.850 motion (id. at 109-19). Petitioner filed a notice of appeal (Ex. K at 363, Ex. L). The First DCA assigned No. 1D17-1214, and affirmed the circuit court's decision per curiam without written opinion on June 7, 2017, with the mandate issuing September 13, 2017 (Exs. M, N, S). Nuckles v. State, 227 So.3d 572 (Fla. 1st DCA 2017) (Table).

         Petitioner filed the instant federal habeas action on October 2, 2017 (ECF No. 1).

         II. STANDARD OF REVIEW

         Federal courts may grant habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254. Section 2254(d) provides, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (2011).

         The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The appropriate test was described by Justice O'Connor as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

         Employing the Williams framework, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a state court proceeding, the federal court must first ascertain the “clearly established Federal law, ” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The law is “clearly established” only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Woods v. Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (“We have ...


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