United States District Court, M.D. Florida, Ocala Division
Morales Howard, Judge
Randall Weck, an inmate of the Florida penal system,
initiated this action on December 16, 2016, by filing, with
the assistance of counsel, a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1) in the
United States District Court Northern District of Florida. On
December 28, 2016, the Northern District transferred the case
to this Court. See Doc. 3. In the Petition, Weck
challenges a 2015 state court (Citrus County, Florida)
judgment of conviction for grand theft, three counts of
theft, two counts of vehicular theft, and burglary of a
structure. Weck raises two grounds for relief. See
Petition at 17-24. Respondents have submitted a memorandum in
opposition to the Petition. See Response to Petition
(Response; Doc. 8) with exhibits (Resp. Ex.). On June 20,
2017, Weck filed a brief in reply. See
Petitioner's Reply to State's Response (Reply; Doc.
14.). This case is ripe for review.
March 16, 2009, the State of Florida charged Weck by way of
Information with grand theft with property damage (count
one), three counts of grand theft - $300 or more but less
than $20, 000 (counts two, three, seven), two counts of grand
theft of vehicles (counts four and six), and burglary of a
structure - non-dwelling (count five). Resp. Ex. 1. On
October 5, 2009, Weck entered a negotiated no-contest plea as
to all seven counts. Resp. Ex. 2. The same day, the circuit
court adjudicated Weck guilty and sentenced him as a youthful
offender to a term of probation of three years as to each
count, with the sentence imposed on count two running
consecutive to the sentence imposed on count one and with
counts three through seven running concurrent with each other
and counts one and two. Resp. Ex. 4. Weck did not appeal.
December 27, 2009, Weck violated condition five of his
probation by committing the criminal offense of possession of
alcohol by a person under twenty-one. Resp. Ex. 5. On May 7,
2010, the circuit court granted Weck's motion to dismiss
the violation of probation (VOP) warrant and continue
Weck's probation with the same previously imposed
conditions. Resp. Ex. 7.
September of 2010, Weck violated conditions three and nine of
his probation by changing his residence and leaving the
county without permission and failing to comply with
instructions. Resp. Ex. 9. On March 11, 2011, the circuit
court found Weck in violation of his probation, revoked his
probation, and then reinstated probation again with the
previous conditions. Resp. Ex. 10.
September 21, 2012, the Florida Department of Corrections
(FDOC) filed a technical violation notification for
Weck's failure to pay the cost of supervision, make
restitution and court cost payments, and complete community
service requirements. Resp. Ex. 12. The circuit court
determined no further action was required. Id.
again violated his probation in February and March of 2014.
Resp. Ex. 13. In February of 2014, Weck was arrested for
driving without a license, which violated condition five of
his probation. Id. In March of 2014, Weck failed to
pay the cost of supervision, pay restitution, complete
community service requirements, and obtain his GED.
Id. On July 15, 2014, Weck admitted he violated the
terms of his probation and the circuit court revoked his
probation and sentenced Weck to a term of incarceration of
eleven years in prison as to count one and five years in
prison as to counts two through seven, with all counts
running concurrently. Resp. Exs. 15; 16. Weck, through
counsel, filed a motion to modify his sentence pursuant to
Florida Rule of Criminal Procedure 3.800(c) (Rule 3.800(c)
Motion) on August 20, 2014. Resp. Ex. 17. On September 9,
2014, the circuit court granted the Rule 3.800(c) Motion and
set aside the sentence imposed on July 15, 2014. Resp. Ex.
18. The circuit court noted that Weck's VOP plea remained
in place though. Id. On November 20, 2014, the
circuit court revoked Weck's previous probation and
placed him on community control for two years with the
previous probation conditions still applying. Resp. Exs. 19;
20. Weck did not appeal.
November and December of 2014, Weck violated two conditions
of his community control by testing positive for marijuana
and failing to remain confined to his approved residence.
Resp. Exs. 21; 22. On April 1, 2015, Weck admitted to
violating the conditions of his community control. Resp. Exs.
23; 24. The same day, the circuit court revoked community
control and sentenced Weck to a term of incarceration of
eleven years in prison as to count one and five years in
prison as to counts two through seven, with all counts
running concurrently. Id. Weck did not appeal.
3, 2015, Weck filed a pro se motion to correct illegal
sentence pursuant to Florida Rule of Criminal Procedure
3.800(a) (Rule 3.800(a) Motion), in which he argued the
circuit court erred when it failed to resentence him as
youthful offender and to give him credit for four years, four
months, and fifteen days of time served on probation. Resp.
Ex. 25. The circuit court denied the Rule 3.800(a) Motion on
June 19, 2015. Resp. Ex. 26. Weck did not appeal.
August 12, 2015, Weck filed a pro se motion for
postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. 27. In his
Rule 3.850 Motion, Weck alleged that his counsel misadvised
when counsel told him that Weck's admission to his
probation officer that he used marijuana was a valid
admission. Id. Weck contended that the admission was
given under false presentences and should not have been
introduced at the hearing on his violation of community
control. Id. On September 2, 2015, the circuit court
denied Weck's Rule 3.850 Motion. Resp. Ex. 28. Weck
appealed, Resp. Ex. 29, and the Fifth District Court of
Appeal (Fifth DCA) per curiam affirmed the denial without a
written opinion on February 2, 2016. Resp. Ex. 31. The Fifth
DCA issued the Mandate on March 11, 2016. Resp. Ex. 34.
April 18, 2016, Weck, with the assistance of counsel, filed a
petition for belated appeal to challenge the judgment and
sentence imposed on April 1, 2015. Resp. Ex. 35. The Fifth
DCA remanded the case to the circuit court to hold an
evidentiary hearing on the petition and file a recommendation
with the Fifth DCA concerning whether to grant the petition.
Resp. Ex. 38. On August 25, 2016, the circuit court
determined that Weck did not timely communicate to his
counsel his desire to file an appeal and recommended denying
the petition. Resp. Ex. 39. Four days later, on August 29,
2016, the Fifth DCA denied Weck's petition for belated
appeal. Resp. Ex. 40. Weck appealed the denial of his
petition for belated appeal to the Fifth DCA. Resp. Exs. 41;
42. On September 9, 2016, the Fifth DCA issued an order to
show cause why the appeal should not be dismissed for lack of
jurisdiction. Resp. Ex. 43. Weck did not respond to the order
to show cause and, on September 21, 2016, the Fifth DCA
dismissed the appeal. Resp. Ex. 44.
One-Year Limitations Period
action is timely filed within the one-year limitations
period. See 28 U.S.C. § 2244(d).
habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See
Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007);
Jones v. Sec'y, Fla. Dep't of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2245 (2017). “It follows
that if the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.”
Schriro, 550 U.S. at 474. The pertinent facts of
this case are fully developed in the record before the Court.
Because the Court can “adequately assess [Weck's]
claim[s] without further factual development, ”
Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003), an evidentiary hearing will not be conducted.
Governing Legal Principles
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner's federal petition for habeas
corpus. See Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S.Ct. 1432 (2017).
“‘The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme
malfunctions in the state criminal justice systems, and not
as a means of error correction.'” Id.
(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)
(quotation marks omitted)). As such, federal habeas review of
final state court decisions is “‘greatly
circumscribed' and ‘highly deferential.'”
Id. (quoting Hill v. Humphrey, 662 F.3d
1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim
on the merits. See Marshall v. Sec'y, Fla. Dep't
of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue a written opinion explaining its
rationale in order for the state court's decision to
qualify as an adjudication on the merits. See Harrington
v. Richter, 562 U.S. 86, 100 (2011). Where the state
court's adjudication on the merits is unaccompanied by an
explanation, the United States Supreme Court recently stated:
[T]he federal court should “look through” the
unexplained decision to the last related state-court decision
that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). The
presumption may be rebutted by showing that the higher state
court's adjudication most likely relied on different
grounds than the lower state court's reasoned decision,
such as persuasive alternative grounds that were briefed or
argued to the higher court or obvious in the record it
reviewed. Id. at 1192, 1196.
claim was “adjudicated on the merits” in state
court, § 2254(d) bars relitigation of the claim unless
the state court's decision (1) “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) “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. §
2254(d); Richter, 562 U.S. at 97-98. The Eleventh
Circuit describes the limited scope of federal review
pursuant to § 2254 as follows:
First, § 2254(d)(1) provides for federal review for
claims of state courts' erroneous legal conclusions. As
explained by the Supreme Court in Williams v.
Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000), § 2254(d)(1) consists of two distinct clauses: a
“contrary to” clause and an “unreasonable
application” clause. The “contrary to”
clause allows for relief only “if the state court
arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.”
Id. at 413, 120 S.Ct. at 1523 (plurality opinion).
The “unreasonable application” clause allows for
relief only “if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Id.
Second, § 2254(d)(2) provides for federal review for
claims of state courts' erroneous factual determinations.
Section 2254(d)(2) allows federal courts to grant relief only
if the state court's denial of the petitioner's claim
“was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). The Supreme
Court has not yet defined § 2254(d)(2)'s
“precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the state
court's factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 571 U.S. ___,
___, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. __, __, 135 S.Ct. 2269,
2282, 192 L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court
factual determination is not unreasonable merely ...