United States District Court, N.D. Florida, Pensacola Division
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. 10). Petitioner filed a
reply (ECF No. 14).
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 the pleadings and
attachments before the court show that Petitioner is not
entitled to federal habeas relief.
BACKGROUND AND PROCEDURAL HISTORY
relevant aspects of the procedural background of this case
are established by the state court record (see ECF
No. 10). Petitioner was charged in the Circuit
Court for Escambia County, Florida, No. 2016-CF-832, with one
count of possession of a controlled substance (cocaine) (Ex.
A at 8). Following a jury trial on October 28, 2016,
Petitioner was found guilty as charged (Ex. A at 368, Ex. B).
On November 29, 2016, the court sentenced Petitioner to five
(5) years in prison, with credit for time served of 231 days
(Ex. A at 370-98, 404-10).
appealed the judgment to the Florida First District Court of
Appeal (“First DCA”), No. 1D16-5770 (Ex. D). The
First DCA affirmed the judgment per curiam without written
opinion on December 13, 2017 (Ex. F). Milhouse v.
State, 238 So.3d 210 (Fla. 1st DCA 2017) (Table). The
mandate issued January 10, 2018 (Ex. F).
April 19, 2018, 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. G). The circuit
court summarily denied the Rule 3.850 motion in an order
rendered September 14, 2018 (Ex. H). Petitioner did not
appeal the circuit court's decision (see ECF No.
1 at 5-6).
filed the instant federal habeas action on October 30, 2018
(ECF No. 1).
STANDARD OF REVIEW
courts may grant habeas corpus relief for persons in state
custody pursuant to 28 U.S.C. § 2254. Pub. L. 104-132,
§ 104, 110 Stat. 1214, 1218-19. 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). If the federal habeas court finds
that the petitioner satisfied § 2254(d) with respect to
a claim that the state courts adjudicated on the merits, the
court then conducts an independent review of the merits of
the petitioner's claims. See Panetti v.
Quarterman, 551 U.S. 930, 954, 127 S.Ct. 2842, 168
L.Ed.2d 662 (2007). Even then, the writ will not issue unless
the petitioner shows that he is in custody ...