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Anderson v. Inch

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

September 19, 2019

DAVID ALLAN ANDERSON, Petitioner,
v.
MARK S. INCH, Secretary, Florida Department of Corrections, Respondent.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         On or 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.

         The 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).

         Procedural Background

         Petitioner 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.[1]

         Sometime 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.

         As 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.

         On July 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.

         Petitioner has not filed a reply, although he was given the opportunity to do so. See ECF No. 10.

         Analysis

         Pursuant 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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