United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
about September 5, 2018, Petitioner Thomas Baldwin, a state
inmate proceeding pro se, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. He filed
an amended § 2254 petition on December 18, 2018. ECF No.
7. On July 8, 2019, Respondent filed a motion to dismiss the
petition for failure to exhaust state court remedies, with
exhibits. ECF No. 14. Petitioner has not filed a reply,
although he was given the opportunity to do so. See
ECF No. 13.
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, the undersigned has
determined no evidentiary hearing is required for the
disposition of this matter. See Rule 8(a), R. Gov.
§ 2254 Cases. The pleadings and attachments before the
Court show the petition should be dismissed. See
Rule 4, R. Gov. § 2254 Cases (authorizing dismissal
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief” in federal court).
Thomas Baldwin indicates he challenges his conviction and
sentence entered June 23, 2015, by the Third Judicial
Circuit, Madison County, Florida, following a jury trial in
case number 14-283-CF. ECF No. 7 at 1-2. In particular, the
jury found Baldwin guilty of aggravated assault with a deadly
weapon (handgun), and discharged the gun, contrary to
sections 775.087(2)(a)2. and 784.021, Florida Statutes, and
shooting into a dwelling, contrary to section 790.19, Florida
Statutes, in connection with events that occurred October 31,
2014. Ex. A at 7-8, 25-26; Ex. B at 265-66. The trial court
adjudicated him guilty and sentenced him to a minimum
mandatory term of twenty (20) years in prison for the first
conviction and fifteen (15) years in prison on the second
conviction, to run concurrent. Ex. A at 28-38; Ex. B at
269-71. On July 10, 2015, Baldwin's counsel filed a
notice of appeal. Ex. A at 53, 64. A notice of substitution
of counsel for Baldwin was filed August 18, 2015. Ex. D.
February 26, 2016, while the direct appeal was pending,
Baldwin's new counsel filed a verified motion for
postconviction relief in the trial court. Ex. E at 1-186. An
amended verification was filed with the court on April 4,
2016. Id. at 197. The State filed a response to the
motion. Id. at 198-203. The state post-conviction
court held an evidentiary hearing on April 21, 2016, during
which counsel represented Baldwin. Ex. F (transcript). The
judge determined he did not have jurisdiction over the
proceeding because the direct appeal remained pending.
Id. at 30-31. The judge stated the postconviction
motion would need to be refiled once the court had
jurisdiction. Id. at 35-39.
April 25, 2016, Baldwin's counsel filed a notice of
voluntary dismissal of the direct appeal in the First DCA.
Ex. G. By order on April 27, 2016, the First DCA dismissed
the appeal pursuant to Florida Rule of Appellate Procedure
9.350(b). Ex. H.
27, 2016, the state post-conviction court held another
evidentiary hearing. Ex. I. At the conclusion of the hearing,
the judge denied the post-conviction motion. Id. at
174-88. On July 12, 2016, the judge entered a written order
denying relief. Ex. E at 210-18.
through counsel, appealed the order denying postconviction
relief to the First DCA and filed an initial brief in case
number 1D16-3457. Ex. J. The State filed an answer brief, Ex.
K, and Baldwin filed a reply, Ex. L. On March 21, 2018, the
First DCA per curiam affirmed the case without a written
opinion. Ex. N; see Baldwin v. State, 242 So.3d 1054
(Fla. 1st DCA 2018) (table). The mandate issued April 11,
2018. Ex. O.
April 25, 2018, Baldwin, proceeding pro se, filed a petition
for writ of habeas corpus in the First DCA, alleging
ineffective assistance of appellate counsel, assigned case
number 1D18-1806. Ex. P. He filed an amended petition on May
15, 2018, Ex. Q, and a second amended petition on May 22,
2018, Ex. R. The State filed a response. Ex. T. Baldwin filed
a reply on December 5, 2018. Ex. U. The case remains pending
as of the date of this Report and Recommendation.
See online docket for 1D18-1806 at
indicated above, Baldwin filed his § 2254 petition on or
about September 5, 2018. ECF No. 1. He filed an amended
§ 2254 petition on December 18, 2018, raising three
claims of ineffective assistance of trial counsel. ECF No. 7.
On July 8, 2019, Respondent filed a motion to dismiss the
petition for failure to exhaust state court remedies, with
exhibits, because Baldwin currently has pending in the First
DCA a petition for writ of habeas corpus alleging ineffective
assistance of appellate counsel. ECF No. 14. Petitioner has
not filed a reply, although he was given the opportunity to
do so. See ECF No. 13.
to § 2254, an application for writ of habeas corpus
“shall not be granted unless it appears that” the
applicant “has exhausted the remedies available in the
courts of the State. 28 U.S.C. § 2254(b)(1)(A).
Furthermore, the statute provides that an applicant has not
exhausted state remedies “if he has the right under the
law of the State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c). Pursuant
to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, a petition must be promptly
examined and if it “plainly appears from the petition .
. . that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.”
properly exhaust state remedies, “state prisoners must
give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
state's established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). It is well settled that, absent extraordinary
circumstances, a federal court will not decide the merits of
§ 2254 claims until the claims have been exhausted in