Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. Secretary, Florida Department of Corrections

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

October 10, 2019

JAMES BERNARD BROWN, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE

         On October 28, 2016, Petitioner James Brown filed his Petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody. Dkt. 1. He seeks relief from a October 2, 2013 Florida state court conviction. Id. at 1. Respondent have filed a response in opposition. Dkt. 14. The Court finds that a hearing is unnecessary and denies the petition.

         Background

         On October 2, 2013 a jury sitting in Sarasota County found Petitioner guilty of robbery with a weapon, Dkt. 17-3 at 1, reduced after trial to robbery, a second-degree felony. Dkt. 17-4 at 1. He was sentenced as a habitual felony offender to a seventeen-year term of imprisonment, with two years to be served on probation. Dkt. 17-4 at 1. Petitioner directly appealed his conviction to the state appellate court. Dkt. 17-5. The state appellate court affirmed his conviction and the mandate was issued on January 7, 2015. Dkts. 17-7 & 17-8.

         Petitioner then filed a 3.850 Motion for Postconviction Relief on January 20, 2015. Motion for Post Conviction Relief 3.850, Florida v. Brown, 2013-CF-1784 NC (12th Fla. Cir. Ct. Jan. 20, 2015). The postconviction court denied this motion but gave Petitioner leave to amend. Order for Post Conviction Relief/Order (1) Denying In Part And (2) Striking In Part With Leave To Amend Defendant's Pro Se "Motion For Post-Conviction Relief, Florida v. Brown, 2013-CF-1784 NC at 2- 3 (12th Fla. Cir. Ct. March 7, 2016). Petitioner filed an amended version on March 16, 2016. Pro Se Amended Post Conviction Relief Motion, Florida v. Brown, 2013-CF-1784 NC (12th Fla. Cir. Ct. March 16, 2016). This was denied and Petitioner appealed. Final Order Denying Defendant's Motion for Post Conviction Relief, Florida v. Brown, 2013-CF-1784 NC (12th Fla. Cir. Ct. March 24, 2016); Dkt. 17-9. The state appellate court summarily denied Petitioner's appeal in a per curiam opinion. Dkt. 17-10. Its mandate was issued on November 14, 2016. Dkts. 17-10 & 17-11.

         On October 28, 2016 Petitioner filed this Petition for writ of habeas corpus. Dkt. 1.

         Standards of Review

         This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998). AEDPA “establishes a highly deferential standard for reviewing state court judgments.” Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 768 (11th Cir. 2003). This type of review does not allow relief of a state court conviction on a claim

that was adjudicated on the merits in the State court proceedings' unless the state court's decision was ‘(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) . . . based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'

Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280, 1288 (11th Cir. 2016) (quoting 28 U.S.C. § 2254(d)).

         “Clearly established Federal law” means holdings of the U.S. Supreme Court “as of the time of the relevant state-court decision.” Id. at 1288-89. “Contrary to” requires a state court 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 1289 (citations omitted) (alterations in original). The “unreasonable application” clause applies 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. (citation omitted) (alterations in original).

         However, a state court's factual determination “is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Id. (citation omitted). AEDPA “requires federal habeas courts to presume the correctness of state court's factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Id. (citation omitted). This is a “demanding but not insatiable standard, requiring proof that a claim is highly probable.” Id. (citation and internal quotation marks omitted). Further, this standard applies even if the state court does not provide the reasoning behind its decision because “the summary nature of a state court's decision does not lessen the deference that it is due.” Wright v. Sec'y for Dep't of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002).

         Counsel is ineffective under the Sixth Amendment if “(1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense such that petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d 1344, 1354 (11th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). But in the habeas context, “[t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation and internal quotation marks omitted). “If there is ‘any reasonable argument that counsel satisfied Strickland's deferential standard,' then a federal court may not disturb a state-court decision denying the claim.” Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (citation omitted).

         Discussion

         A. Timeliness

         Federal habeas petitions are subject to a one-year statute of limitation. 28 U.S.C. § 2244(d)(1) (2018). It begins running-as relevant here-on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. at 2244(d)(1)(A). The clock stops running for the “time during which a properly filed application for State post-conviction . . . judgment or claim is pending[.]” Id. § 2244(d)(2).

         Here, Petitioner was sentenced on October 29, 2013. Dkt. 17-4. He then directly appealed his conviction and the conviction was affirmed on January 7, 2015. Dkts. 17-5; 17-7; 17-8. Thirteen days later, Petitioner filled a motion for post-conviction relief. Motion for Post Conviction Relief 3.850, Florida v. Brown, 2013-CF-1784 NC (12th Fla. Cir. Ct. Jan. 20, 2015). Petitioner's motion was denied. Final Order Denying Defendant's Motion for Post Conviction Relief, Florida v. Brown, 2013-CF-1784 NC (12th Fla. Cir. Ct. March 16, 2016). Petitioner appealed, the appeal was denied, and the mandate was issued on November 14, 2016. Dkt. 17-10. This petition was filed on October 28, 2016. Dkt. 1 at 1. Accordingly, this petition is well within the one-year requirement and is timely.

         B. Merits

         Petitioner raises nine grounds for relief in his Petition. Dkt. 1. The Respondent rebuts each of these grounds as being unmeritorious or unexhausted. Dkt. 14. The Court will address each ground in turn.

         1. Ground One

         Ground One of the Petition raises a claim of ineffective assistance of counsel. Dkt. 1 at 5-6. Petitioner argues that his trial counsel failed to object to the admission of testimony by Officer Christopher O'Donnell of the Sarasota Police Department regarding improperly destroyed evidence. Id. The State's charge was that Petitioner used a BB gun to rob a taxi driver. Dkt. 17-5 at 3. Petitioner alleges that Officer O'Donnell disposed of a CO2 cartridge found inside a BB gun discovered near the place Petitioner was arrested, without disclosing it to Petitioner or analyzing it for fingerprints. Id. This issue is inappropriate for federal habeas relief.

         Following a motion for postconviction relief, the state postconviction court denied this claim, stating in pertinent part:

In a related claim, Defendant argues that trial counsel was ineffective for failing to object to Officer O'Donnell's testimony that the BB gun had an empty CO2 cartridge inside when he checked it out of evidence. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance was deficient, and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different. Franqui v. State, 59 So.3d 82, 94-95 (Fla. 2011) (citing Strickland v. Washington, 466 U.S. 668 (1984)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Having already concluded that evidence related to the missing CO2 cartridge would not have materially affected the outcome of Defendant's trial, it follows that Officer O'Donnell's testimony about the existence of the cartridge did not prejudice Defendant. Accordingly, the Court denies this claim.

         Final Order Denying Defendant's Motion for Post Conviction Relief, Florida v. Brown, 2013-CF-1784 NC at 3-4 (12th Fla. Cir. Ct. March 24, 2016) (hereinafter ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.