Gray v. Sec'y, Fla. Dep't of Corr.

ROBERT ALEXANDER GRAY, Petitioner,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:10-cv-98-J-34MCR

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

Dated: January 10, 2013

ORDER

I. Status

Petitioner Robert Alexander Gray, an inmate of the Florida penal system, initiated this action by filing a pro se Petition for Writ of Habeas Corpus (Petition) (Doc. #1) and Memorandum of Law (Doc. #3) with exhibits (P. Ex.) under 28 U.S.C. § 2254 on February 2, 2010, pursuant to the mailbox rule. Petitioner challenges a 2005 state court (Duval County, Florida) judgment of conviction for sale or delivery of cocaine within 1,000 feet of a public housing facility. Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Amended Response (Response) (Doc.#25) with exhibits (Resp. Ex.). While given sufficient time, Petitioner has not filed a Reply.¹ This case is ripe for review.

II. Procedural History

On April 21, 2005, the State of Florida charged Robert Alexander Gray with sale or delivery of cocaine within 1,000 feet of a public housing facility (count one) and two counts of possession of cocaine (counts two and three). Resp. Ex. 1 at 24, Second Amended Information. After jury selection, Gray proceeded to a trial on counts one and three. Resp. Exs. 2; 4, Transcripts of the Jury Trial (Tr.). At the conclusion of the trial, a jury found Gray guilty of both counts. Resp. Ex. 1 at 48-49, Verdicts; Tr. at 154. On May 31, 2005, the trial court adjudicated Gray as a habitual felony offender and sentenced him to a term of twenty years of imprisonment for count one and a term of five years of imprisonment for count three, such term to run concurrently to the sentence imposed for count one. Resp. Ex. 1 at 74-80, Judgment; 92-136, Transcript of the Sentencing (Sentencing Tr.).

On September 29, 2005, Gray filed a pro se motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Resp. Ex. 3 at 1-15. Finding Gray's sentence to be "lawful, correct and appropriate," the trial court denied the motion on October 4, 2005. Id. at 16-17.

On appeal, Gray, through counsel, filed an Initial Brief, arguing that the offense of sale or delivery of cocaine is a strict liability offense, and thus, the imposition of a twenty-year sentence violates his right to due process of law (ground one); Florida Statutes section 893.13(1)(a)1, as clarified by section 893.101, unconstitutionally fails to require mens rea in a prosecution for sale or delivery of cocaine (ground two); the trial court erred in imposing an enhanced sentence for sale or delivery of cocaine within 1,000 feet of a public housing facility because the term "public housing facility" is unconstitutionally vague (ground three); the trial court erred in sentencing Petitioner as a habitual felony offender because the offense of delivery of cocaine is an offense relating to possession of cocaine and therefore does not qualify for habitual felony offender sentencing (ground four); and the trial court erroneously sentenced Petitioner as a habitual felony offender in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Resp. Ex. 6. The State filed an Answer Brief, see Resp. Ex. 7, and Gray filed a Reply Brief, see Resp. Ex. 8. On May 22, 2006, the appellate court affirmed Gray's conviction and sentence per curiam. Gray v. State 931 So.2d 905 (Fla. 1st DCA 2006); Resp. Ex. 9. The appellate court denied Gray's motion for rehearing on June 20, 2006. Resp. Ex. 10. Themandate issued on July 6, 2006.² Petitioner did not seek review in the United States Supreme Court.

On or about May 18, 2007, Gray filed a pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. 11 at 1-21. In his request for post conviction relief, Gray asserted that counsel (Katy Aguilar Harris) was ineffective because she failed to: move to suppress the audiotape recording of the drug transaction (ground one); move to suppress the Jacksonville Sheriff's Office (JSO) money sheet because it lacked the time, date, and signature of a witness to ensure chain of custody (ground two); object to the admission of the JSO money sheet (ground three); impeach Detective Hollins with his inconsistent statements (ground four); object to Detective Elegino's authentication of the money sheet (ground five); and request a curative jury instruction that the evidence did not confirm Detective Hollins' testimony (ground six). In accordance with the trial court's order directing the State to file a response, see id. at 22, the State responded, see id. at 193-96. On September 13, 2007, the court denied the Rule 3.850 motion for the reasons set forth in the State's response. Id. at 23. On appeal, Gray filed a brief. Resp. Ex. 13. On May 13, 2008, the appellate court affirmed the trial court's decision per curiam.Gray v. State, 984 So.2d 1252 (Fla. 1st DCA 2008); Resp. Exs. 12; 14. The court denied Gray's motion for rehearing on June 26, 2008. Resp. Exs. 15; 16. The mandate issued on July 14, 2008. Resp. Exs. 12; 17. The Florida Supreme Court dismissed his petition for lack of jurisdiction on September 10, 2008. Gray v. State, 992 So.2d 819 (Fla. 2008); Resp. Ex. 34.

During the pendency of his Rule 3.850 motion, Gray, on or about December 27, 2007, filed a pro se motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(a), asserting that his sentence was illegal because he did not qualify for habitual offender sentencing. Resp. Ex. 18 at 1-18. On February 6, 2008, the trial court denied the motion, finding that Gray was properly sentenced as a habitual felony offender. Id. at 19-30. Gray appealed. Resp. Ex. 20. On September 16, 2008, the appellate court affirmed the trial court's decision per curiam, see Resp. Ex. 21, and the mandate issued on October 14, 2008, see Resp. Ex. 22.

On or about May 8, 2008, Gray filed a second pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. 23 at 1-9. In the request for post conviction relief, Gray asserted that counsel was ineffective because she failed to move to suppress electronic eavesdropping of private communications inside his home. The court, on May 29, 2008, denied the motion as successive. Id. at 10-11. On December3, 2008, the appellate court affirmed the trial court's decision per curiam, see Resp. Exs. 24; 25, and the mandate issued on December 30, 2008, see Resp. Exs. 24; 26.

On or about January 20, 2009, Gray filed a pro se motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Resp. Ex. 27 at 1-6. The court, on March 10, 2009, denied the motion. Id. at 7-19. Following Gray's appeal, see Resp. Ex. 29, the appellate court, on September 15, 2009, affirmed the trial court's decision per curiam, see Resp. Exs. 28; 30. The court denied Petitioner's motion for rehearing on December 16, 2009, see Resp. Exs. 31; 32, and the mandate issued on January 4, 2010, see Resp. Exs. 28; 33.

III. One-Year Limitations Period

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

IV. Evidentiary Hearing

"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) (citation omitted). "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." Id. Thepertinent facts of this case are fully developed in the record before the Court. Because this 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), an evidentiary hearing will not be conducted.

V. Standard of Review

The Court will analyze Gray's claims under 28 U.S.C. § 2254(d). This standard is described as follows:

As explained by the Supreme Court, the phrase "'clearly established Federal law' . . . refers to the holdings . . . of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We have held that to be "contrary to" clearly established federal law, the state court must either (1) apply a rule "that contradicts the governing law set forth by Supreme Court case law," or (2) reach a different result from the Supreme Court "when faced with materially indistinguishable facts." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2003).

As regards the "unreasonable application" prong of § 2254(d)(1), we have held as follows:

A state court decision is an unreasonable application of clearly established law if the state court unreasonably extends or fails to extend a clearly established legal principle to a new context. An application of federal law cannot be considered unreasonable merely because it is, in our judgment, incorrect or erroneous; a statecourt decision must also be unreasonable. Questions of law and mixed questions of law and fact are reviewed denovo, as is the district court's conclusion regarding the reasonableness of the state court's application of federal law.

Jennings v. McDonough, 490 F.3d 1230, 1236 (11th Cir. 2007) (quotation marks and citations omitted). In sum, "a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409, 120 S.Ct. at 1521. Finally, 28 U.S.C. § 2254(e)(1) commands that for a writ to issue because the state court made an "unreasonable determination of the facts," the petitioner must rebut "the

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