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Weck v. Secretary, Florida Department of Corrections

United States District Court, M.D. Florida, Ocala Division

October 9, 2019

RANDALL WECK, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          Marcia Morales Howard, Judge

         I. Status

         Petitioner 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.[1] 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.

         II. Procedural History

         On 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.

         On 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.

         In 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.

         On 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.

         Weck 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.

         In 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.

         On June 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.

         On 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.

         On 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.

         III. One-Year Limitations Period

         This action is timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

         IV. Evidentiary Hearing

         In a 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.

         V. Governing Legal Principles

         A. Standard of Review

          The 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)).

         The 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 reasoning.

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.

         If the 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 ...

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