United States District Court, N.D. Florida, Gainesville Division
REPORT AND RECOMMENDATION TO DENY § 2254
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
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.
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.
and Procedural History
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. 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.
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.
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.
with counsel, appealed to the state First District Court of
Appeal. 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.
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). 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.).
August 26, 2014, Petitioner filed a motion for
post-conviction relief pursuant to Florida Rule of Criminal
Procedure 3.850. 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, 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).
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.
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;
(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).
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).
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)).
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)).
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
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
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))).
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).
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.
1: Motion for Mistrial and To Strike Jury Panel
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.
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. 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
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 ...