United States District Court, N.D. Florida, Panama City Division
ORDER AND REPORT AND RECOMMENDATION
THAI CANNON, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Roger Dale Belcher,
Jr.'s petition for writ of habeas corpus under 28 U.S.C.
§ 2254. ECF Doc. 1. The matter was referred to the
undersigned Magistrate Judge for report and recommendation
pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R.
72.2(B). Although Belcher presents three grounds for relief,
the crux of Belcher's petition is that Florida's
medical marijuana law is inconsistent with Florida law
prohibiting the use and possession of methamphetamines as
well as federal law on controlled substances, rendering the
Florida drug laws contrary to the U.S. Constitution and
Belcher's conviction for possession of methamphetamines a
cruel and unusual punishment. ECF Doc. 1. After considering
the petition, the State's response (ECF Doc. 25), and
Belcher's reply (ECF Doc. 27), the undersigned recommends
the petition be DENIED without an
January 6, 2017, Belcher was pulled over for a broken
taillight and admitted he did not have a valid driver's
license. ECF Doc. 25-2 at 20. He was ticketed with driving
while license suspended or revoked - habitual, not having a
motion vehicle registration, and attaching a registration
license plate not assigned to the vehicle. ECF Doc. 25-1 at
29. He was released on bond. Id. at 20-28. On March
10, 2017, an Information was returned against Belcher in case
number 2017-CF-73, charging him only with driving with his
license canceled, suspended or revoked in violation of
Florida Statute § 332.34(2). Id. at 33. The
Information charged that he had previously been convicted of
that crime twice. Id.
on March 2, 2017, Belcher took a 2009 Load Master trailer
valued at over $2, 000 that did not belong to him and
attempted to sell it for $1, 800 on Craigslist. ECF Doc. 25-1
at 106. The owner was contacted and provided a sworn
statement that the owner did not generate the listing or give
Belcher permission to take or sell the trailer. Id.
Belcher also admitted post-Miranda that he stole the
was taken into custody for grand theft and gave deputies
consent to search his vehicle. ECF Doc. 25-1 at 104. During
the search, deputies located an amount of a “crystal
type substance that when field tested gave a positive
reaction for methamphetamine.” Id. Also
located during the search were syringes which when field
tested gave a positive reaction for methamphetamine.
Id. Belcher was subsequently charged with felony
Possession of a Controlled Substance (Count I), felony Grand
Theft (Count II), and misdemeanor Possession of Drug
Paraphernalia (Count III), in 2017-CF-807 & 808, which
were consolidated into 2017-CF-807. Id. at 112.
29, 2017, Belcher entered an open plea to the court on the
charges in both 2017-CF-73 and 2017-CF-807. ECF Doc. 25-2 at
14. The court informed Belcher of the total maximum sentence
-- fifteen years in state prison and one in county jail --
and asked Belcher if he still wished to proceed
“without any agreement as to the sentence, with the
understanding that the State, or that the Court can impose
any sentence, constrained only by the maximum sentence
permitted by law….” Id. at 17-18.
Belcher stated, “Yes, sir, I would like to enter a plea
of no contest.” Id. at 18. After asking
Belcher several more questions to ascertain Belcher's
competency and his knowledge of the consequences of entering
the open plea, the court found that the open plea of guilty
was freely and voluntarily entered and accepted the plea.
Id. at 21. At no time did Belcher raise any
objection to the constitutionality of Florida's drug laws
or attempt to reserve any issues for appeal.
was held in both cases on July 20, 2017, and involved four
charges: felony drug possession (Count I from 2017-CF-807),
felony driving with license revoked (from 2017-CF-73), felony
grand theft (Count II from 2017-CF-807) and misdemeanor
possession of drug paraphernalia (Count III from
2017-CF-807). Id. at 24. Belcher spoke at his
sentencing, describing his 27 years of “sorrow,
despair, and addiction, ” his “crimes against
humanity, ” and “crimes that [he] [hasn't]
been held into account for.” Id. at 30.
Belcher explained “I've committed many crimes, all
for the love of drug, but it's no excuse. I know what I
was doing. I'm not blaming nobody but myself. I'm
standing accountable for my actions.” Id. at
complained that probation had declined his request for
“rehab” twice before but had recently completed a
Lifeline rehab program while in pretrial detention.
Id. at 32-33. He then asked the Court to consider
sentencing him to “eight years DOC suspended,
completion of Lifeline, and I need further assistance. And I
don't care about probation or the fines, because if you
do them right, probation is easy to do.” Id.
at 33. At no point did he discuss the constitutionality of
Florida's drug laws.
court declined to impose a suspended sentence and instead,
sentenced Belcher to 60 months on each of the drug possession
(Count I) and grand theft charges (Count II), time served
(141 days) on the driving while license suspended charge
(2017-CF-73), and time served (141 days) on the possession of
drug paraphernalia charge (Count III), with all the sentences
to run concurrently for a total sentence of 60 months.
Id. at 34.
27, 2017, Belcher filed a pro se “Notice to
Appeal”, raising seven issues, none of which was that
the Florida drug laws were unconstitutional. ECF Doc. 25-1 at
65-66. That same day, he also filed a pro se
“Motion to Dismiss/Vacate Sentence” arguing that
the prosecutor “conspired against the court to error
falsify official documents” and his counsel failed to
correct the wrongdoing. Id. at 71-74. Nothing in
that motion concerned the constitutionality of Florida's
drug laws. Id. The state court dismissed the motion
to dismiss/vacate without prejudice for lack of jurisdiction
because the direct appeal was then pending. Id. at
was appointed appellate counsel, id. at 95, who
filed an Anders brief explaining why the appeal was
without merit. ECF Doc. 25-2 at 43-49 (citing Anders v.
California, 386 U.S. 738 (1967)). Belcher was given
permission to file a pro se initial brief
(id. at 53) and did so by delivering his brief to
Graceville Correctional Institution mail officials on October
19, 2017. Id. at 55-64. Belcher's
pro se brief included, for the first time, an
argument regarding the unconstitutionality of Florida's
drug laws - namely Fla. Stat. § 381.986, allowing the
use of medical marijuana while at the same time making
illegal the possession or use of methamphetamine.
Id. 57-63. For a remedy, he sought “Relief
from the oppression of injustice, laws of enslavement, equal
protection under the Constitution of the United States
… and recused from the powers of judgment of Florida
[sic]. Relief from the financial prevention and burden of
oppression of civil adjudgements [sic].” Id.
at 63. The First District Court of Appeal affirmed, per
curiam, on February 14, 2018, id. at 66, with
the mandate issuing March 14, 2018. Id. at 68.
THE INSTANT PETITION
filed the instant timely federal petition by delivering it to
prison officials at Graceville Correctional Facility on
January 29, 2018. ECF Doc. 1 at 24. In his petition, Belcher
seeks to vacate his sentence and judgment for
2017-CF-73 and 2017-CF-807. He raises the following
three grounds for relief:
Ground 1: The State of Florida's enactment of
Section 381.986, Florida Statutes, violates Section VI of the
Constitution, which declares the Constitution and Laws of the
United States “the supreme Law of the Land”,
because the state law legalizes medical marijuana in
contravention of Title 21, United States Code Sections
841(a)(1) and 841(b)(1)(d).
Ground 2: The State of Florida's enactment of
Section 381.986, Florida Statutes, constitutes an act of
treason under Article III, § 3, because the state law
legalizes medical marijuana, which amounts to aiding the
“enemy” (drugs), after the Federal Government
declared a war on drugs. The State of Florida's
incarceration of petitioner for violating Section 893.13,
Florida Statutes, by possessing a controlled substance is
hypocritical considering the State's violation of the
“supreme Law of the Land” by legalizing medical
Ground 3: Petitioner's imprisonment for
violating state law by possessing a controlled substance
violates the Eighth Amendment's prohibition on cruel and
unusual punishment, because the State of Florida itself
violated Federal law (21 U.S.C. § 841) by legalizing
Doc. 13 at 3. Belcher requests “Relief and Recused from
the Judicial Powers of Florida; Declare independence of the
State; Brought before federal jurisdiction, or what the Court
deems.” ECF Doc. 1 at 24. ECF Doc. 1.
State seeks a denial of Belcher's petition. As to ground
one, the State argues the First DCA's summary affirmation
of his judgment was not an adjudication on the merits and
therefore not subject to federal review under § 2254.
Alternatively, the State argues, Belcher is not entitled to
relief on the merits and because his claims are procedurally
defaulted. Specifically, the State argues Belcher waived his
right to appeal his judgment by pleading nolo
contendere. As to grounds two and three, the State
argues Belcher failed to raise these federal claims in the
state court and thus has not exhausted his state remedies.
Alternatively, the State argues the petition should be denied
on its merits.
reply, ECF Doc. 27, Belcher counters the state's waiver
argument on the ground that he was “advised by the
sentencing judge that he could appeal the court's
decision without any reservation need [sic] to be made or
advised to” and that “Petitioner does have a
right to appeal the judgement and sentence imposed.”
ECF Doc. 27 at 2-3. With regard to the State's
failure-to-exhaust argument, Belcher counters that each issue
in his petition was raised by direct appeal to the First
DCA.Id. at 3. Finally, Belcher argues
the reference to “Cruel and Unusual Punishment”
in Count III of his petition is sufficient to fairly state an
Eighth Amendment claim. Id. at 6-7.