United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
about November 6, 2018, Petitioner David Allan Anderson, a
state inmate proceeding pro se, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1.
On July 9, 2019, Respondent filed a motion to dismiss the
petition, with exhibits. ECF No. 11. Petitioner has not filed
a reply, although he was given the opportunity to do so.
See ECF No. 10.
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).
David Allan Anderson indicates he challenges his conviction
and sentence entered June 18, 2018, by the Fourteenth
Judicial Circuit, Washington County, Florida, following his
entry of a nolo contendere plea in case number 2017-CF-543.
ECF No. 1 at 1. He also indicates he challenges a federal
conviction and sentence entered November 2, 2017, by the U.S.
District Court for the Northern District of Florida in case
number 3:17cr54-RV. Id. In particular, from the
exhibits provided by Respondent with the motion to dismiss,
on November 2, 2017, following Anderson's entry of a
guilty plea, the federal court sentenced him in case 3:17cr54
to concurrent terms of 267 months and 120 months, to run
“concurrent with any sentence to be imposed by the
circuit court of Washington County, Florida, in case
#17CF210, and Jackson County, Florida, in case
#17CF319.” Ex. G at 2.
between December 17 and 18, 2017, Anderson escaped from the
Washington County Jail, where he had been jailed awaiting
disposition of his pending state charges in Washington County
Circuit Court case number 2017-CF-210. Exs. A, B. By
information filed January 29, 2018, the State of Florida
charged Anderson with escape, contrary to sections 944.40 and
951.24(4), Florida Statutes, in Washington County Circuit
Court case number 2017-CF-543. Ex. B. On June 18, 2018,
pursuant to a negotiated plea agreement, Anderson entered a
plea of nolo contendere to the escape charge and he was
sentenced, in accordance with the agreement, to five (5)
years in prison. Exs. C, D. The written judgment and
sentence, rendered June 19, 2018, specifically provides that
Anderson receive credit for 161 days' time served and,
further, that the sentence shall run
“CONSECUTIVE TO WASHINGTON COUNTY
CASE 17-210CF AND CONCURRENT WITH
FEDERAL SENTENCE.” Ex. D. Anderson did
not appeal this judgment and sentence.
indicated above, Anderson filed this § 2254 petition on
or about November 6, 2018. ECF No. 1. He raises two grounds:
(1) he is being detained illegally in state custody as he was
first sentenced in federal court and then sentenced in state
court, with the sentences to run concurrently, thus he should
be transferred to federal custody to serve the first-imposed
sentence, id. at 5; (2) he received ineffective
assistance of counsel because counsel did not properly inform
him that “he did not score out to prison time”
and also told him that his state sentence would run
concurrent with his federal sentence while in federal
custody, and if counsel had properly informed him, he would
not have entered the plea, id. at 7.
9, 2019, Respondent filed a motion to dismiss the petition,
with exhibits. ECF No. 11. Respondent asserts Anderson's
first ground is not cognizable in federal habeas and the
second ground is unexhausted with an available state court
remedy. Id. at 4.
has not filed a reply, although he was given the opportunity
to do so. See ECF No. 10.
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. 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