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Barber v. Secretary, Florida Department of Corrections

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

November 12, 2019

JUSTIN MERTIS BARBER, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          BRIAN J. DAVIS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Justin Mertis Barber initiated this case by filing a Petition for Writ of Habeas Corpus (Doc. 1). He is represented by counsel. Through an Amended Petition for Writ of Habeas Corpus (Petition) (Doc. 6) pursuant to 28 U.S.C. § 2254, he challenges his state court (St. Johns County) conviction for first degree murder with a firearm. Respondents filed a Response to Petition (Response) (Doc. 23).[1] Petitioner's Amended Reply to State's Response (Reply) (Doc. 29) followed. As relief, Petitioner asks that this Court “[v]acate and set aside the plea, judgment and sentence and if relief is not summarily granted, set the petition for an evidentiary hearing.” Petition at 14.[2]

         II. EVIDENTIARY HEARING

         It is Petitioner's burden to establish a need for an evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears the burden of establishing the need for an evidentiary hearing with more than speculative and inconcrete claims of need), cert. denied, 565 U.S. 1120 (2012). The Court finds no need for an evidentiary hearing as the pertinent facts are fully developed in this record or the record otherwise precludes habeas relief. In this case, the state court conducted an evidentiary hearing on Petitioner's initial Rule 3.850 motion. As such, the Court can "adequately assess [Petitioner's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004). Therefore, Petitioner is not entitled to an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

         III. CLAIMS OF PETITION

         Petitioner raises eleven grounds in the Petition: (1) the trial court erred in denying Barber's motion for new trial when the evidence in this purely circumstantial evidence case did not meet the state's burden of proof beyond a reasonable doubt; (2) the holding of the Florida Court of Appeals that Barber could not rely upon a finding of ultimate fact made by the trial judge at a death penalty aggravator hearing, when that finding of fact was based solely on trial evidence and not on any new evidence at the aggravator hearing, to resolve Barber's appellate challenge to the legal insufficiency of the evidence at trial, violated the collateral-estoppel component of the double jeopardy clause, which requires the court to give binding effect to a prior determination of an issue of ultimate fact under Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189 (1970); (3) the trial court violated Barber's right to due process in denying Barber's request to interview jurors to determine whether the jury had been tainted by improper publicity; (4) Barber was denied effective assistance of counsel arising out of a conflict of interest which actually prejudiced Barber because it resulted in his taking the case to trial, when he could have and would have entered into a plea agreement but for the advice of counsel that the case would be won if taken to trial; (5) Barber was denied effective assistance of counsel arising out of a failure to use photographic evidence the state disclosed in pretrial discovery to the defense, that is, the very first crime scene photos made by law enforcement, photos which clearly showed no blood flow on the victim's face, and which thereby directly contradicted a key element of the state's case; (6) Barber was denied effective assistance of counsel arising out of a failure to timely poll the jury concerning pretrial and trial publicity and to adequately and timely challenge the publicity created by Maureen Christine, the prosecutor who brought the indictment in this case; (7) Barber was denied effective assistance of counsel arising out of a failure to challenge the prosecutorial misconduct associated with the prosecution's threat to charge Shannon Kennedy with perjury;[3] (8) Barber was denied effective assistance of counsel arising out of a failure to challenge the false testimony of Detective Cole concerning David Shuey (that is, that there had been no similar attacks on the beach, when in fact Shuey had committed a similar assault at the beach); (9) Barber was denied effective assistance of counsel arising out of a failure to object to the failure to fully sequester the jurors but instead allowing them access to their mobile phones; (10) Barber is actually innocent and his conviction constitutes a manifest injustice and fundamental miscarriage of justice; and (11) the trial court violated Barber's right to due process in summarily denying Barber's 3.850 motion based on his discovery of juror misconduct during voir dire of his trial. Barber was denied his right to a fundamentally fair trial guaranteed Barber by the Sixth Amendment to the United States Constitution applicable to Barber under the Fourteenth Amendment to the Constitution when a juror misled counsel during voir dire in response to a line of inquiry about law enforcement background and prior employment, and had the juror truthfully disclosed her prior employment by the FBI Barber would have requested his counsel to strike her from the jury and counsel would have struck her. Petition at 21, 31, 37, 43, 46, 49, 57-60.

         IV. SUFFICIENCY OF PETITION

         Respondents assert the Petition is legally insufficient because Barber's claims are included in an insert and his supporting facts are in an appendix. Response at 38. Respondents complain that neither are sworn to or signed, and the document exceeds twenty-five pages in length. Id. Petitioner responds that he submitted forty-two pages of facts to satisfy the fact pleading requirement, and that the habeas petition form for actions pursuant to 28 U.S.C. § 2254 found on the United States District Court for the Middle District of Florida webpage allows Petitioner's use of an attachment for grounds and facts if more pages are necessary, and in this case, the submission of extra pages was necessary. Reply at 17. Additionally, the habeas form Petition is signed by Petitioner under penalty of perjury. Id.

         Upon closer review of the Petition, the first sixteen pages are based on the habeas form. Petition at 1-16. Petitioner signed the Petition under penalty of perjury. Id. at 16. In “Insert A, ” Petitioner provides the Statement of Grounds. Id. at 17-20. The grounds and the statement of facts supporting those grounds are in the Appendix to § 2254 Petition of Justin Mertis Barber Statement of Supporting Facts Grounds 1-11 Inclusive. Id. at 21-62.

         Petitioner filed his initial petition on March 1, 2016 (Doc. 1). The Instructions for a Petition for Relief From a Conviction or Sentence By a Person in State Custody (Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus), revised May 21, 2013, states: “You may submit additional pages if necessary.” It also includes this cautionary instruction: “You must include in this petition all the grounds for relief from conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.” Id. Of note, the AO 241 (Rev. 10/07) Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody form also directs a petitioner to “[a]ttach additional pages if you have more than four grounds. State the facts supporting each ground.” It warns that failure to set forth all the grounds may result in a petitioner being barred from presenting additional grounds at a later date. Id. This same language is included in the May 21, 2013, revised habeas form.

         The current Appendix of Forms[4] attached to the Rules Governing Section 2254 Cases in the United States District Courts, includes Instructions which direct a petitioner to answer all the questions and provides: “[y]ou may submit additional pages if necessary.” Again, there is a cautionary instruction to include in the petition all grounds for relief and a directive to state the facts that support each ground. Id. In particular, the habeas form, number twelve (emphasis added), states:

For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground.
CATUION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available state court remedies on each ground on which you request action by the federal court. Also, if you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.

         Finally, the Rules form, after the statement of relief, contains the signature line for the attorney and a signature line for the Petitioner, including the same language used by Petitioner in this case: “I declare . . . under penalty of perjury that the foregoing is true and correct[.]” See Petition at 16. Upon review, both Petitioner and his counsel signed the form. Id. at 15-16.

         After careful consideration, the Court finds no merit to Respondents contention that the Petition is legally insufficient because Petitioner included an insert and presented his supporting facts in an appendix. The instructions and the form for habeas petitions invited Petitioner to do so. Obviously, Petitioner has presented more than four grounds in the Petition. Petitioner summarily set forth his grounds and then presented, in an orderly and easily discernible fashion, each ground with its supporting facts. Although the Petition is somewhat lengthy, the instructions clearly allow for additional pages and warn a petitioner to set forth all the grounds in this petition or be forewarned that a later submission of additional grounds may be barred. The Petitioner, as instructed, signed the habeas form under penalty of perjury, and his counsel signed the form as well. As such, Petitioner has satisfied pleading requirements. Respondents' request that this Court summarily dismiss the Petition as “legally deficient” is denied.

         V. TIMELINESS

         Respondents assert the Petition is untimely. Response at 40. Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), there is a one-year period of limitation:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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