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Milhouse v. State

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

July 8, 2019

ROBERT MILHOUSE, Petitioner,
v.
STATE OF FLORIDA, 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. 10). Petitioner filed a reply (ECF No. 14).

         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 the pleadings and attachments before the court show that Petitioner is not entitled to federal habeas 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. 10).[1] 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).

         Petitioner 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).

         On 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).

         Petitioner filed the instant federal habeas action on October 30, 2018 (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. 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 ...


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