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Ash v. Inch

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

June 3, 2019

HORACE ASH, Petitioner,
MARK S. INCH, Secretary, Florida Department of Corrections, Respondent.



         On July 11, 2018, Petitioner, Horace Ash, a prisoner in the custody of the Florida Department of Corrections, proceeding pro se under the mailbox rule, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent filed an answer on April 3, 2019, with record exhibits. ECF No. 13. Petitioner was given leave to file a reply, ECF No. 12, but no reply was filed.

         The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this § 2254 petition should be denied.

         Background and Procedural History

         Petitioner was charged by Information on January 2, 2014, in the circuit court of Leon County, Florida, with felony battery of his girlfriend, possession of cannabis, possession of Diazepam, and possession of paraphernalia, all occurring on December 15, 2013. Ex. A at 29.[1] An Amended Information was filed adding a count charging possession of cocaine. Ex. A at 30. Jury trial was held on December 8, 2014, at which Petitioner was acquitted of felony battery but found guilty as charged of possession of cannabis, possession of cocaine, possession of Diazepam, and possession of paraphernalia.[2] Exs. C, A at 67-68. Petitioner was sentenced to a total of eight years in prison followed by two years of probation. Ex. A at 72-83.

         On direct appeal from his convictions and sentences, in case number 1D14-5840, his counsel filed an Anders brief.[3] Ex. E. Petitioner was granted leave to file a pro se brief but none was filed.[4] The court affirmed per curiam without opinion on February 17, 2016. Ex. F. The mandate was issued on March 15, 2016. Id. See Ash v. State, 185 So.3d 1237 (Fla. 1st DCA 2016) (table).

         On April 12, 2016, Petitioner filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.[5] Ex. G at 3-28. An evidentiary hearing was held on September 7, 2016, (Ex. G at 35-73), after which the postconviction court denied the claims. Ex. G at 33. Petitioner appealed in case number 1D16-4217 and filed an initial brief.[6] Ex. H. The appellate court affirmed per curiam without opinion on November 21, 2017, and the mandate was issued on January 10, 2018. Exs. J, K. See Ash v. State, 236 So.3d 2017 (Fla. 1st DCA 2017) (table).

         On December 12, 2016, Petitioner filed a motion to correct sentence under Florida Rule of Criminal Procedure 3.801(a) for correction of jail credit. Ex. L at 3-8. The motion was denied on January 30, 2017, finding that Petitioner was seeking double credit for jail time served and that the sentencing documents and sentencing hearing did not indicate such double credit should be awarded. Ex. L at 9-37. Petitioner's appeal in case number 1D17-0583 was affirmed per curiam on April 26, 2017, and the mandate was issued on May 23, 2017. Ex. M. See Ash v. State, 225 So.3d 801 (Fla. 1st DCA 2017) (table).

         Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court raising the following grounds for relief:

(1) Ineffective assistance of trial counsel for failing to ensure Petitioner was mentally competent at the time of the offense as well as in preparation for and participation in his trial;
(2) Ineffective assistance of counsel for failing to advise Petitioner of the possibility of consecutive sentences if he proceeded to trial and was convicted, resulting in rejection of a favorable plea offer;
(3) Trial court error in denying legal representation to Petitioner at the post-conviction evidentiary hearing and in denying a full and fair hearing.

ECF No. 1.


         Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody only under certain specified circumstances. Section 2254(d) provides in pertinent part:

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). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011).

         “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.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring). “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. at 413 (O'Connor, J., concurring).

         The Supreme Court has explained that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Court stated:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. . . . It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, ” not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment).

Id. at 102 (citation omitted). The federal court employs a “ ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.' ” Pinholster, 563 U.S. at 181 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

         “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b). The Petitioner must have apprised the state court of the federal constitutional claim, not just the underlying facts of the claim or a “somewhat similar state-law claim.” Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (quoting Anderson v. Harless, 459 U.S. 4, 5-6 (1982)). Petitioner must “fairly present” his claim in each appropriate state court in order to alert the state courts to the federal nature of the claim. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

         In regard to claims of ineffectiveness of trial counsel, the Petitioner must have presented those claims in state court “ ‘such that a reasonable reader would understand each claim's particular legal basis and factual foundation.' ” Ogle v. Johnson, 488 F.3d 1364, 1368 (11th Cir. 2007) (citing McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2015)).

         In order to obtain review where a claim is unexhausted and, thus, procedurally defaulted, the Petitioner must show cause for the default and prejudice resulting therefrom or a fundamental miscarriage of justice. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993). In order to demonstrate cause, Petitioner must show that an “external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim.” Alderman v. Zant, 22 F.3d 1541, 1551 (1994) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)); see also McCleskey v. Zant, 499 U.S. 467, 497 (1991) (emphasizing that the external impediment must have prevented the petitioner from raising the claim). A federal court may grant a habeas petition on a procedurally defaulted claim without a showing of cause or prejudice if necessary to correct a fundamental miscarriage of justice. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). In order to satisfy the miscarriage of justice exception, the Petitioner must show that a constitutional violation has occurred that “probably resulted in a conviction of one who is actually innocent”-that it is more likely than not that no reasonable juror would have convicted him-which is a stronger showing than is necessary to establish prejudice. See Schlup v. Delo, 513 U.S. 298, 327 (1995). Such a case is “extremely rare.” Id. at 324.

         This Court's review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181. The state court's factual findings are entitled to a presumption of correctness and to rebut that presumption, the Petitioner must show by clear and convincing evidence that the state court determinations are not fairly supported by the record. See 28 U.S.C. § 2254(e)(1). However, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions” and “[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). See also Swarthout v. Cooke, 562 U.S. 216, 222 (2011) (“[W]e have long recognized that ‘a “mere error of state law” is not a denial of due process.' ” (quoting Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982))).

         Further, under § 2254(d), “[d]etermining the credibility of witnesses is the province and function of the state courts, not a federal court engaging in habeas review.” Consalvo v. Sec'y, Dep't of Corr., 664 F.3d 842, 845 (11th Cir. 2011). Credibility and demeanor of a witness are considered to be questions of fact entitled to a presumption of correctness under the AEDPA and the Petitioner has the burden to overcome the presumption by clear and convincing evidence. Id.

         For claims of ineffective assistance of counsel, the United States Supreme Court has adopted a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's ...

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