United States District Court, M.D. Florida, Ocala Division
DARWIN J. FIFIELD, SR., Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
a Florida prisoner, instituted this action by filing a
petition for writ of habeas corpus under 28 U.S.C. §
2254 (Doc. 1) and is proceeding on his amended petition.
(Doc. 9). At the Court's direction, Respondents responded
to the amended petition and filed relevant portions of the
state court record. (Docs. 21, 22). Petitioner filed a reply.
(Doc. 30). The Court has reviewed the entire record. Because
the Court may resolve the amended petition on the basis of
the record, an evidentiary hearing is not warranted.
See Rules Governing Section 2254 Cases in the United
States District Courts, Rule 8(a). Upon consideration, the
Court concludes that the petition is due to be dismissed.
was charged by amended information with two counts of lewd or
lascivious molestation of a child less than 12 years old by a
person 18 years of age or older. (Doc. 22-2 at 34-37). On
June 4, 2015, a jury found Petitioner guilty on both counts
as charged. (Doc. 22-13 at 64-65). On July 9, 2015,
Petitioner was sentenced to thirty-five years'
incarceration followed by lifetime sex offender probation.
(Doc. 22-13 at 114-21). Petitioner appealed. (Doc. 22-13 at
131). On April 12, 2016, Florida's Fifth District Court
of Appeal ("Fifth DCA") per curiam
affirmed the judgment. (Doc. 22-14 at 1163); see also
Fifleld v. State, 190 So.3d 647 (Fla. 5th DCA 2016)
(Table). Mandate issued on June 2, 2016 (Doc. 22-15 at 139),
and rehearing was denied on June 6, 2016 (Doc. 22-15 at 141).
On June 17, 2016, Petitioner filed a motion for a written
opinion. (Doc. 22-15 at 144-47). On June 27, 2016, the Fifth
DCA struck the motion as unauthorized. (Doc. 22-15 at 149).
17, 2016, Petitioner filed a petition alleging ineffective
assistance of appellate counsel in the Fifth DCA. (Docs.
22-15 at 151, 22-16 at 1-28). The State filed a motion to
dismiss the petition as facially insufficient. (Doc. 22-16 at
33-37). Petitioner filed a "Respons [sic] to the State
Attorney General Petition to Tryin [sic] Stop the Appellant
His Due Process of Law" as a reply, (Doc. 22-16 at
39-53), and supplemented his reply with "The Missing
Pages" (Doc. 22-16 at 55-76). By Order dated September
6, 2016, the Fifth DCA granted the Respondent's motion to
dismiss. (Doc. 22-17 at 2).
October 31, 2016, Petitioner filed a pro se Rule
3.850 motion for postconviction relief. (Doc. 22-17 at 4-33).
On May 8, 2017, Petitioner's claims of ineffective
assistance of counsel were dismissed without prejudice to
re-file and the remaining claims were denied as procedurally
barred. (Doc. 22-17 at 35-72). The postconviction court
further noted that Petitioner's oath was improper and
thus the motion, in its entirety, was facially insufficient.
(Doc. 22-17 at 35). On June 19, 2017, Petitioner filed his
amended Rule 3.850 motion. (Doc. 22-17 at 74-133). On July
20, 2017, the postconviction court entered an order denying
with prejudice the motion as "facially insufficient in
multiple respects." (Doc. 22-17 at 135-253). Petitioner
did not appeal.
October 24, 2017, Petitioner filed a motion for successive
3.850 motion 3.580(H)(2). (Docs. 22-17 at 255-77; 22-18 at
1-31). On December 22, 2017, the motion was denied, pursuant
to Florida law, for raising some claims that were previously
denied on the merits and for failing to state good cause why
he did not raise newly pled grounds in his initial two
motions. (Doc. 22-18 at 33-195). On February 1, 2018,
Petitioner submitted a handwritten "Judicial
Notice" deemed to be a notice of appeal. (Doc. 22-18 at
197). On February 12, 2018, the Fifth DCA ordered Petitioner
to "file a signed, amended Notice of Appeal, within
fifteen days of the date hereof, that contains a proper
certificate of service reflecting that a copy of the notice
was furnished to" the Appellee, and to show cause within
fifteen days as to why his untimely appeal should not be
dismissed for lack of jurisdiction. (Doc. 22-18 at 199). On
February 19, 2018, Petitioner submitted his response to the
order to show cause with a filing titled "Order to Show
Cause." (Doc. 22-19 at 16-28). On March 23, 2018, the
Fifth DCA dismissed the appeal for lack of jurisdiction.
(Doc. 22-19 at 30). Petitioner filed a motion for rehearing
that the Fifth DCA denied on April 30, 2018. (Doc. 22-19 at
January 24, 2018, Petitioner filed a motion for extension of
time with the Fifth DCA. (Doc. 22-19 at 70-83). On January
31, 2018, the Fifth DCA treated the motion as a petition for
belated appeal and directed Petitioner to file an amended
petition "that complies with the content requirements of
Florida Rule of Appellate Procedure 9.141(c)(4)" within
fifteen days. (Doc. 22-19 at 85). Petitioner filed his
amended petition on February 7, 2018. (Doc. 22-19 at 87-97).
On February 14, 2018, Petitioner was ordered to submit an
amended petition for belated appeal that contains a proper
certificate of service. (Doc. 22-19 at 99). On February 20,
2018, Petitioner filed his second amended petition for
belated appeal. (Doc. 22-19 at 101-16). On February 27, 2018,
the Fifth DCA denied the petition for belated appeal, the
amended petition, and the second amended petition. (Doc.
22-19 at 118).
filed his initial petition for writ of habeas corpus in this
Court on June 15, 2018. (Doc. 1). He filed his amended
petition on July 9, 2018. (Doc. 9). Respondents filed a
response, arguing that the amended petition should be
dismissed with prejudice as unexhausted, in part, and on the
merits, in part. (Doc. 21). Petitioner filed a reply. (Doc.
30). Thus, the amended petition is ripe for review.
Standard of Review Under the Antiterrorism Effective Death
Penalty Act ("AEDPA")
to the AEDPA, federal habeas relief may not be granted with
respect to a claim adjudicated on the merits in state court
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;
(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). The phrase "clearly
established Federal law," encompasses only the holdings
of the United States Supreme Court "as of the time of
the relevant state-court decision." Williams v.
Taylor, 529 U.S. 362, 412 (2000).
2254(d)(1) provides two separate bases for reviewing state
court decisions; the 'contrary to' and
'unreasonable application' clauses articulate
independent considerations a federal court must
consider." Maharaj v. Sec'y for Dep't of
Con., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning
of the clauses was discussed by the Eleventh Circuit Court of
Appeals in Parker v. Head, 244 F.3d 831, 835 (11th
Under the "contrary to" clause, a federal court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by [the United States Supreme Court]
on a question of law or if the state court decides a case
differently that [the United States Supreme 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 [the United States
Supreme Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.
Even if the federal court concludes that the state court
applied federal law incorrectly, habeas relief is appropriate
only if that application was "objectively
unreasonable." Id. Finally, under §
2254(d)(2), a federal court may grant a writ of habeas corpus
if the state court's decision "was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." A
determination of a factual issue made by a state court,
however, shall be presumed correct, and the habeas petitioner
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence. See
Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
Standard for Ineffective Assistance of Counsel
Strickland v. Washington, the Supreme Court
established a two-part test for determining whether a
convicted person is entitled to relief on the ground that his
counsel rendered ineffective assistance. 466 U.S. 668, 687-88
(1984). A petitioner must establish that counsel's
performance was deficient and fell below an objective
standard of reasonableness and that the deficient performance
prejudiced the defense. Id. This is a "doubly
deferential" standard of review that gives both the
state court and the ...