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Belcher v. Inch

United States District Court, N.D. Florida, Panama City Division

August 6, 2019

ROGER DALE BELCHER, JR, Petitioner,
v.
MARK S. INCH, [1] Respondent.

          ORDER AND REPORT AND RECOMMENDATION

          HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE

         This 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 evidentiary hearing.

         I. BACKGROUND

         On 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.

         Meanwhile, 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 trailer. Id.

         Belcher 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.

         On June 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.

         Sentencing 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 32.

         He 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.

         The 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.

         On July 27, 2017, Belcher filed a pro se “Notice to Appeal”, raising seven issues, none of which was that the Florida drug laws were unconstitutional.[2] 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 100.

         Belcher 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.[3] 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.

         II. THE INSTANT PETITION

         Belcher filed the instant timely federal petition by delivering it to prison officials at Graceville Correctional Facility on January 29, 2018.[4] ECF Doc. 1 at 24. In his petition, Belcher seeks to vacate his sentence and judgment for 2017-CF-73[5] and 2017-CF-807. He raises the following three grounds for relief:[6]

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 marijuana.
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 medical marijuana.

         ECF 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.

         The 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.

         In his 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.[7]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.

         III. ...


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