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Franklin v. Inch

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

July 31, 2019

BHAKTIVINODE FRANKLIN, Petitioner,
v.
MARK S. INCH, Secretary, Florida Department of Corrections, Respondent.

          REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         On December 21, 2017, Petitioner, Bhaktivinode Franklin, 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. Petitioner filed a memorandum supporting the petition on May 30, 2018. ECF No. 9. Respondent filed an answer on March 26, 2019. ECF No. 22. Petitioner filed a reply on July 18, 2019. ECF No. 27.

         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 Second Amended Information in the circuit court of Alachua County, Florida, on April 24, 2012, with Count I-Lewd or lascivious molestation of U.G., a child 12 years of age or older but less than 16, by a person 18 years or older, by intentionally touching U.G. in a lewd or lascivious manner or by forcing U.G. to touch Defendant in a lewd or lascivious manner, on or between February 1, 2009, and November 10, 2009, in violation of section 800.04(5)(c)(2), Florida Statutes; Count II- Lewd or lascivious battery of U.G., a child 12 years of age or older but less than 16, by a person 18 years or older, on or between July 7, 2009, and November 10, 2009, by penetrating the victim's vagina with his penis, but without committing the crime of sexual battery, in violation of section 800.04(4), Florida Statutes; Count III-contributing to the delinquency or dependency of U.G., a child less than 18 years of age, on or between February 1, 2009, and December 31, 2009, in violation of section 827.04(1), Florida Statutes; and Count IV-aggravated stalking of U.G., on or between July 7, 2009, and November 10, 2009, in violation of §§ 784.048(4) & (5), Florida Statutes. Ex. A at 76-77.[1] Petitioner's motion to sever Count IV for trial before a different jury was denied, but the count was bifurcated and allowed to go the jury in a separate trial after the trial of Counts I, II, and III. Ex. A at 90.

         Jury trial was held on July 11-13, 2012, and verdicts on Counts I, II, and III were returned finding Petitioner guilty as charged. Ex. A at 163-64; H at 651-52. Trial on Count IV commenced immediately thereafter on July 13, 2012, and the jury found Petitioner guilty as charged. Ex. A at 165; Ex. H at 692. Motion for new trial on Counts I, II, III, and IV made on July 13, 2012, was denied. Ex. H at 693-95.

         Judgment was entered and Petitioner was sentenced on July 13, 2012, on Counts I and II to concurrent ten-year terms of imprisonment followed by two years of sex offender community control and then three years of sex offender probation. He was sentenced on Count III to 364 days in county jail with credit for 364 days. On Count IV, he was sentenced to five years probation with sex offender conditions consecutive to the sentences in Counts I and II. Ex. A at 166-73; H at 709-10, 712. Petitioner received credit for 487 days time served for Counts I, II, and IV. Ex. A at 166-73; Ex. H at 710. An amended judgment and sentence correcting a scrivener's error was rendered on July 25, 2012, nunc pro tunc to July 13, 2012. Ex. A at 191I-191S.

         Petitioner, with counsel, appealed to the state First District Court of Appeal.[2] Ex. A; I; J. The court affirmed per curiam without opinion on July 5, 2013. Ex. K. The mandate was issued on July 23, 2013. Ex. K. See Franklin v. State, 115 So.3d 1005 (Fla. 1st DCA 2013) (table). On September 16, 2013, Petitioner filed a motion to mitigate sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). Ex. M. The motion was denied on September 23, 2013. Ex. N.

         On October 4, 2013, Petitioner filed in the First District Court of Appeal a “Petition Alleging Ineffective Assistance of Appellate Counsel” pursuant to Florida Rule of Appellate Procedure 9.141(d).[3] Ex. O. On November 25, 2013, the petition was denied on the merits. Ex. P. See Franklin v. State, 127 So.3d 726 (Fla. 1st DCA 2013) (Mem.).

         On August 26, 2014, Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.[4] Ex. S at 1-35. The postconviction court summarily denied the claims on April 4, 2017. Ex. S at 37-131. Petitioner appealed to the First District Court of Appeal, Ex. S, [5]which affirmed per curiam without opinion on July 12, 2017. Ex. T. The mandate was issued on September 13, 2017. See Franklin v. State, 228 So.3d 554 (Fla. 1st DCA 2017) (table).

         On December 21, 2017, Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court raising nine grounds for relief. ECF No. 1. In his reply filed on July 18, 2019, Petitioner voluntarily dismissed Grounds Two, Five, Six, Eight, and Nine. ECF No. 27 at 2.

         Analysis

         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). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Id. at 102-03 (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)). In order for remedies to be exhausted, “the petitioner must have given the state courts a ‘meaningful opportunity' to address his federal claim.” Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 457 (11th Cir. 2015) (quoting McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005)). 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). The State must have been provided the “ ‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Henry, 513 U.S. at 365 (quoting Picard, 404 U.S. at 275 (citation omitted)). “This rule of comity reduces friction between the state and federal court systems by avoiding the ‘unseem[liness]' of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” O'Sullivan, 526 U.S. at 845; see also Picard, 404 U.S. at 275 (“If the exhaustion doctrine is to prevent ‘unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution,' it is not sufficient merely that the federal habeas applicant has been through the state courts.” (citation omitted)).

         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, 416 F.3d at 1302).

         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). This standard “thus ensures that petitioner's case is truly ‘extraordinary.' ” Id. (citing McCleskey, 499 U.S. at 494). Such a case is “extremely rare.” Schlup, 513 U.S. 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))).

         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 errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, a “defendant must show that counsel's performance fell below an objective standard of reasonableness.” Id. at 688. Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 134 S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690). Federal courts are to afford “both the state court and the defense attorney the benefit of the doubt.” Id. at 13. The reasonableness of counsel's conduct must be viewed as of the time of counsel's conduct. See Maryland v. Kulbicki, 136 S.Ct. 2, 4 (2015) (citing Strickland, 466 U.S. at 690).

         To demonstrate prejudice under Strickland, a defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. For this Court's purposes, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.' ” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Mirzayance, 556 U.S. at 123. It is a “doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Id. Both deficiency and prejudice must be shown to demonstrate a violation of the Sixth Amendment. Thus, the court need not address both prongs if the petitioner fails to prove one of the prongs. Strickland, 466 U.S. at 697.

         Ground 1: Motion for Mistrial and To Strike Jury Panel

         Petitioner contends that he was deprived of a fair trial guaranteed by the Federal Constitution when the trial court denied his motion to strike the jury panel and denied his motion for mistrial after a prospective juror stated, “I work for the Alachua County Jail, so I have observed his file.” ECF No. 1 at 4; ECF No. 6 at 15. Counsel argued to the trial judge that the jury could infer that Petitioner was in custody. Ex. C at 288. Petitioner raised a slightly different claim on direct appeal, as he does in this Court, arguing that denial of the motions was an abuse of discretion because the other prospective jurors could have interpreted the comment to mean that Petitioner had prior arrests or prior convictions. Ex. I at 18, 20-22.

         Respondent contends that the claim Petitioner now raises was not exhausted, noting that no federal constitutional claim was presented in the state court. ECF No. 22 at 20-21. Only state law authority and argument were provided.[6] The state appellate court affirmed per curiam without discussion. Ex. K. In order to seek federal habeas corpus relief, section 2254 requires that the Petitioner exhaust all state court remedies. Preston, 785 F.3d at 457; 28 U.S.C. § 2254(b)(1). To do so, Petitioner must present his federal claim in all the appropriate state courts in order to provide the state courts with the “ ‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Henry, 513 U.S. at 365 (quoting Picard, 404 U.S. at 275 (citation omitted)). The federal question must have been presented squarely to the state court and plainly defined. Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004). Because Petitioner did not present the federal claim to the state court which he presents in this Court, and because the claim can no longer be litigated in state court, his claim is unexhausted and procedurally defaulted. Nor has Petitioner provided any basis to find cause or prejudice as a basis to allow federal habeas relief on this claim. Regardless of any procedural default, the claim is without merit and should be denied.[7]

         The following colloquy occurred after the judge advised the prospective jurors of the charges against Petitioner:

THE COURT: . . . . All right. Ladies and Gentlemen, you've heard the charges made against the defendant. Does anybody know anything about ...

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