United States District Court, N.D. Florida, Pensacola Division
DONZELL K. NUCKLES, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE
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).
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.
BACKGROUND AND PROCEDURAL HISTORY
relevant aspects of the procedural background of this case
are established by the state court record (see ECF
No. 26). 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).
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
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
[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
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
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).
filed the instant federal habeas action on October 2, 2017
(ECF No. 1).
STANDARD OF REVIEW
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).
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
Id., 529 U.S. at 412-13 (O'Connor, J.,
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 ...