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Freeman v. Florida Commission On Offender Review

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

July 19, 2019

ROBERT LAVELLE FREEMAN, Petitioner,
v.
FLORIDA COMMISSION ON OFFENDER REVIEW, et al., Respondents.

          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). Petitioner's habeas claims concern state court proceedings in which Petitioner sought review of the revocation of his conditional release supervision by Respondent Florida Commission on Offender Review (“FCOR”), formerly the Florida Parole Commission. The FCOR filed a Response to the § 2254 petition, with relevant portions of the state court record (ECF No. 13).[1] At the court's direction, the FDOC filed supplemental argument on the issue of exhaustion/procedural default (see ECF Nos. 17, 20). Petitioner filed a reply to the FCOR's Response and supplemental argument (see ECF No. 26).

         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 raised 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.

         I. BACKGROUND AND PROCEDURAL HISTORY

         Petitioner was convicted by a jury in the Circuit Court in and for Orange County, Florida, No. CR92-266, of one count of sexual battery (see ECF No. 12 at 10-13).[2] On September 18, 1992, the court sentenced Petitioner as a habitual violent felony offender to thirty (30) years in prison, with a 15-year minimum mandatory and pre-sentence jail credit of 209 days (id.).

         On April 30, 2012, Petitioner was released from FDOC custody on conditional release supervision, administered by the FCOR, with his supervision to expire on February 14, 2022 (ECF No. 13, Ex. 5, attached Ex. B).

         On April 8, 2016, the FCOR issued a warrant for Petitioner's arrest for violating the terms of his conditional release, specifically, Condition 7 of the Certificate of Conditional Release and Terms and Conditions of Supervision, which required Petitioner to obey all laws (ECF No. 13, Ex. 5, attached Exs. C, D). The alleged violation was based upon Petitioner's leaving the scene of an accident causing property damage in Floyd County, Georgia on October 5, 2015, for which he was charged with misdemeanor hit and run (see id.). On June 10, 2016, Petitioner waived his right to a violation hearing and his right to be represented by an attorney (see ECF No. 13, Ex. 5, attached Exs. D, F). On July 13, 2016, the FCOR revoked Petitioner's conditional release supervision, effective May 4, 2016, and ordered him returned to FDOC custody to serve the remainder of his sentence (ECF No. 13, Ex. 5, attached Ex. E; ECF No. 12, attached Affidavit of Stacey Haynes). The FCOR considered, but denied, an award of credit for the time Petitioner was out of FDOC custody on conditional release supervision (from April 30, 2010, to May 4, 2016) (ECF No. 13, Ex. 5, attached Ex. E).[3]

         On October 25, 2016, Petitioner filed a petition for writ of habeas corpus in the Circuit Court in and for Santa Rosa County, Florida (the county where Petitioner was incarcerated), where the court assigned No. 2016-CA-844 (ECF No. 13, Ex. 1). Petitioner filed a motion for appointment of “appellate” counsel (ECF No. 13, Ex. 2). The FCOR filed a Response to the state habeas petition (ECF No. 13, Ex. 5). Petitioner filed a Reply and a Supplemental Reply (ECF No. 13, Exs. 6, 11). On March 3, 2017, the state circuit court denied the habeas petition and denied all pending motions as moot (ECF No. 13, Ex. 11). Petitioner “appealed” the decision to the Florida First District Court of Appeal (“First DCA”), No. 1D17-1089 (ECF No. 13, Ex. 12). Petitioner filed a motion for appointment of counsel (see ECF No. 13, Ex. 14). The First DCA noted that the order which Petitioner sought to appeal appeared to be reviewable by petition for writ of certiorari rather than by appeal, and directed Petitioner to file a petition for writ of certiorari (see id.). The court also denied Petitioner's motion for appointment of counsel (see id.). Petitioner filed a petition for writ of certiorari on May 15, 2017 (ECF No. 13, Ex. 15). The First DCA denied the petition per curiam without written opinion on October 19, 2017 (ECF No. 13, Ex. 20). Freeman v. Fla. Comm'n on Offender Review, 236 So.3d 341 (Fla. 1st DCA 2017) (Table). The mandate issued November 16, 2017 (see id.).

         Petitioner filed the instant federal habeas action on January 8, 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. 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).

         The 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 prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

         Employing the Williams framework, on any issue presented 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. See 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 explained that clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions.” (internal quotation marks and citation omitted)).

         After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is “contrary” only if either the reasoning or the result contradicts the relevant Supreme Court holdings. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (“Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.”). Where there is no Supreme Court precedent on point, the state court's conclusion cannot be contrary to clearly established federal law. See Woods, 135 S.Ct. at 1377 (holding, as to claim that counsel was per se ineffective in being absent from the courtroom for ten minutes during testimony concerning other defendants: “Because none of our cases confront the specific question presented by this case, the state court's decision could not be contrary to any holding from this Court.” (internal quotation marks and citation omitted)). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 954, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

         If the “contrary to” clause is not satisfied, the federal habeas court next determines whether the state court “unreasonably applied” the governing legal principles set forth in the Supreme Court's holdings. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was “objectively unreasonable” in light of the record before the state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam). In applying this standard, the Supreme Court has emphasized:

When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong. Federal habeas review thus exists as “a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington, supra, at 102-103, 131 S.Ct. 770 (internal quotation marks omitted).

Woods, 135 S.Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)).

         Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where that adjudication “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)(2). The “unreasonable determination of the facts” standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on an unreasonable fact finding. See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011). As with the “unreasonable application” clause, the federal court applies an objective test. Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (holding that a state court decision based on a factual determination “will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding.”). Federal courts “may not characterize . . . state-court factual determinations as unreasonable merely because we would have reached a different conclusion in the first instance.” Brumfield v. Cain, ___U.S. ___, 135 S.Ct. 2269, 2277, 192 L.Ed.2d 356 (2015) (quotation marks omitted).

         When performing review under § 2254(d), the federal court presumes that all factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). The petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.

         Only if the federal habeas court finds that the petitioner satisfied § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti, 551 U.S. at 954. Even then, the writ will not issue unless the petitioner shows that he is in custody “in violation of the Constitution or laws and treaties of the United States.” 28 U.S.C. § 2254(a). “If this standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.

         Within this framework, the court will review Petitioner's claim.

         III. PETITIONER'S CLAIM

         Petitioner presents one claim in his § 2254 petition:

Ground One: “Petitioner is illegally detained without due process of law and was denied counsel at trial and appellate levels.”

(ECF No. 1 at 5). Petitioner's claim has several sub-claims, including an ADA claim, a substantive due process/sufficiency of the evidence claim under the Fifth and Fourteenth Amendments, a procedural due process claim under the Fifth and Fourteenth Amendments, and a right-to-counsel claim under the Sixth and Fourteenth Amendments (id. at 5-9). The court will address each sub-claim in turn.

         A. ADA Claim

         Petitioner claims that the revocation violated his rights under the Americans with Disabilities Act (“ADA”) (ECF No. 1 at 9). The FCOR contends Petitioner's ADA claim is unexhausted and without merit (ECF No. 13 at 4-5, 6-7).

         A habeas petition is the appropriate vehicle to bring challenges to the validity of a conviction and sentence. Petitioner's claim that the FCOR discriminated against him during the revocation proceeding because of his physical, mental, and intellectual disabilities is properly raised and remedied through an independent civil cause of action, not a habeas proceeding. See, e.g., Gorrell v. Hastings, 541 Fed.Appx. 943, 945 (11th Cir. 2013) (unpublished but recognized as persuasive authority) (inmate's challenge to disciplinary proceeding, which resulted in loss of good-conduct time, on the ground that prison officials unlawfully took disciplinary action against him on the basis of his disability, in violation of the ADA, was not properly raised in habeas corpus action).

         Additionally, Petitioner did not exhaust an ADA claim in the state courts. It is a long-standing prerequisite to the filing of a federal habeas corpus petition that the petitioner exhaust available state court remedies, 28 U.S.C. § 2254(b)(1), [4] thereby giving the State the “‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citation omitted)). To satisfy the exhaustion requirement, the petitioner must “fairly present” his claim in each appropriate state court, alerting that court to the federal nature of the claim. Duncan, 513 U.S. at 365-66; O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S. at 277-78.

         An issue that was not properly presented to the state court and which can no longer be litigated under state procedural rules is considered procedurally defaulted, that is, procedurally barred from federal review. See Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999). Under such circumstances, the federal court must determine whether any future attempt to exhaust state remedies would be futile under the state's procedural default doctrine. Id. at 1303.

         Here, Petitioner asserted an ADA claim in his state habeas petition (see ECF No. 13, Ex. 1 at 11). However, he did not present the claim to the First DCA in his petition for certiorari (see ECF No. 13, Ex. 15). Petitioner may not seek a second review of the circuit court's order denying his state habeas petition. Therefore, Petitioner's ADA claim is unexhausted and procedurally defaulted.

         To overcome a procedural default, the petitioner must show cause for the default and prejudice resulting therefrom, or that the federal court's failure to reach the merits of the claim would result in a fundamental miscarriage of justice. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1990), rev'd on other grounds, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). “For cause to exist, 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.” McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)).

         In Petitioner's reply, he appears to argue that Investigator Braxton caused any procedural default, because Braxton “made the presenting of the claims almost impossible” by interfering with Petitioner's constitutional right to counsel (ECF No. 26 at 7-8). Petitioner's “cause” argument fails, because Petitioner presented his ADA claim to the state circuit court (in his state habeas petition) after Investigator Braxton's alleged interference with Petitioner's right to counsel. Since Braxton's conduct obviously did not interfere with Petitioner's presenting his ADA claim to the state circuit court, and Petitioner does not allege any intervening conduct between the state circuit court proceedings and the review proceeding in the First DCA (where the procedural default occurred), Petitioner cannot show that Braxton caused Petitioner's failure to present the ADA claim to the First DCA.

         Petitioner's failure to complete one round of state court review of his ADA claim, and Petitioner's failure to show he is entitled to federal review of his ADA claim through any recognized exception to the procedural bar, renders his claim procedurally barred in this federal habeas proceeding.

         B. Sufficiency of the Evidence/Substantive Due Process Claim

         Petitioner alleges the Florida statutes governing conditional release supervision provide for the revocation of conditional release upon a releasee's arrest for a felony, not a misdemeanor, see Florida Statutes §§ 947.1405, 947.141, 947.146(10) (ECF No. 1 at 5-6). Petitioner alleges he was arrested for allegedly committing a misdemeanor offense in Georgia (id.). Petitioner contends his arrest for a misdemeanor offense was not a sufficient basis for the FCOR's revocation decision under Florida's statutory provisions governing the Conditional Release program (id. at 5).

         Respondent contends this is a purely state law issue which is not cognizable as a basis for federal habeas relief (ECF No. 13 at 14).

         In Petitioner's state habeas petition, he argued that his arrest for a misdemeanor did not constitute a valid basis to revoke his conditional release, because Florida Statutes § 947.141 authorized the FCOR to revoke conditional release supervision upon the releasee's arrest on only a felony charge (see ECF No. 13, Ex. 1 at 8). Petitioner admitted he was charged with a misdemeanor offense of leaving the scene of an accident on October 5, 2015; that he was arrested for the charge and bonded out the next day; and that a jury trial was scheduled in the State of Georgia, County of Floyd, No. 16CR009998-JFL001, on September 9, 2016 (see ECF No. 13, Ex. 1 and attached Ex. E at 8-9). Petitioner alleged he had not admitted guilt to the charge, and that he maintained his innocence (see Id. at 9-10).

         With the FCOR's response to the state habeas petition, the FCOR filed a copy of the Certificate of Conditional Release and Terms and Conditions of Supervision provides, amended on February 26, 2014 (prior to the conduct which formed the basis for the revocation) (ECF No. 13, Ex. 5, attached Exhibit B). According to the Certificate, Condition 7 provided, ...


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