Leonard v. Inch

STEPHEN D. LEONARD, Petitioner, v. MARK S. INCH, SECRETARY, FLORIDADEPARTMENT OF CORRECTIONS, Respondent.

CASE NO. 4:20-cv-10005-King/Brannon

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

April 12, 2021

REPORT OF MAGISTRATE JUDGE RECOMMENDING DENIAL OF FEDERAL HABEAS CORPUS PETITION - 28 U.S.C. § 2254

THIS CAUSE is before the Court upon Petitioner Stephen D. Leonard's ("Petitioner") pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") challenging his convictions and sentences for grand theft and fleeing and eluding entered following a no contest plea in Monroe County Circuit Court, Case No. 2015-CF-665-A-K. [ECF No. 44]. The State argues this petition should be dismissed because Petitioner is no longer in custody. [ECF No. 62]. The State further concedes the Petition is timely, but argues some claims are unexhausted and procedurally defaulted, and Petitioner is not entitled to habeas corpus relief. [ECF No. 62]. Upon consideration of the briefing and the underlying state court record, the Court recommends that the Petition be DENIED.

I. BACKGROUND

A. State Criminal Proceedings

On October 6, 2015, Petitioner was charged by Information with first degree felony grand theft resulting in over $100,000.00 in damage (Count 1) and fleeing and eluding in a vessel (Count 2). [ECF No. 61, Ex. C at 16]. At his October 17, 2015 arraignment, Petitioner advised the court that he was interested in pleading no contest to the charges. [ECF No. 60 at p. 3]. The Court advised Petitioner that the case was set for arraignment, but he could thereafter set it for a plea and sentencing. [Id. at 4]. Later, the Court conducted a thorough arraignment and Faretta proceeding, during which Petitioner indicated he did not want an attorney appointed to represent him. [Id. at 7, 13]. At that time, when asked if he still wanted to proceed with the "no contest plea or wait," Petitioner stated that he wanted to proceed with the plea. [Id. at 13]. During the change of plea proceeding, Petitioner stipulated that the salient facts underlying his convictions and sentences were as follows:

...On September 17, 2015, in the County of Monroe and State of Florida, the defendant took from Hurricane Hole Marine, a 31-foot Yellowfin vessel with two Suzuki outboard motors that belonged to Charles F. Donney and/or Charles Francis Donney, with the intent to permanently deprive the owners of the vessel, being valued at more than $1,000. While in the taking of the vessel, the defendant caused over $1,000 in damage to the vessel by repeatedly running it aground, requiring the victims to have to complete an overhaul of the engine of this vessel.

Also on that date and time in Monroe County, Florida, the defendant, when confronted by Monroe County Sheriff's Officer Spencer Curry at the Key West - or the Yacht Club of America, to stop the vessel and to return to the fuel dock, the defendant did flee and elude and ignore the lawful commands of Deputy Sheriff Curry.

[Id. at 16-17].

At an October 28, 2015 hearing on Petitioner's motion to withdraw his plea, Petitioner again reiterated that he did commit the offenses, did not really want to withdraw his plea, but was attempting to proffer grounds for a downward departure in sentence due to mitigating circumstances. [Id. at 22-23]. When asked specifically what he wanted the court to do, Petitioner responded he wanted to "withdraw the plea and appoint counsel in order to try and get a downward departure and work out a better plea...." [Id. at 23]. When asked to explain why he thought hisplea should be withdrawn, Petitioner responded he did not believe the court should grant withdrawal of the plea because it had been entered knowingly and willingly. [Id.]. Petitioner, however, explained he was asking the court to consider withdrawing the plea to enable Petitioner to proffer a basis for mitigating circumstances. [Id. at 23-24]. Petitioner requested and was granted a continuance of the sentencing until December 2, 2015 so that he could confer with Attorney Smith, his standby counsel, regarding presenting mitigating evidence at sentencing. [Id.].

Prior to sentencing, Petitioner filed a pro se supplement, admitting he committed the charged offenses, but setting forth reasons to support his request for a downward departure in sentence. [ECF No. 61, Ex. E at 21-45]. A few months later, Petitioner wrote a letter to the court complaining that counsel was not properly pursuing the motion for downward departure. [Id., Ex. F at 46]. Thereafter, defense counsel filed several motions, including a motion to continue sentencing to enable further investigation of mitigating evidence, a motion to compel, and motion for appointment of an expert to evaluate Petitioner's competency. [Id., Ex. G at 58-68]. Petitioner sent a second letter to the court reiterating he did not believe counsel was properly investigating and pursuing a motion for downward departure in sentence. [Id., Ex. H at 69-75]. An Order was entered appointing Dr. Holbrook to evaluate Petitioner's competency pursuant to Fla. Stat. § 916.12 and Fla. R. Crim. P. 3.211. [ECF No. 61-1, Ex. I at 2-3]. Following Dr. Holbrook's evaluation of Petitioner, at a May 10, 2016 hearing, Petitioner, together with defense counsel and the State stipulated that Dr. Holbrook found Petitioner competent to proceed. [ECF No. 60 at 61-62]. Meanwhile, Petitioner's request for a thirty-day furlough to conduct his own investigation in support of his motion for downward departure was denied as moot because Petitioner was represented by counsel. [ECF No. 61-1, Exs. K-L at 8-15]. Undeterred, Petitioner continued filingmultiple motions, including a motion for a Nelson¹ hearing with supplement thereto, claiming counsel was ineffective for failing to gather evidence to support Petitioner's motion for downward departure. [Id., Exs. M-N at 17-25].

Before a ruling was had on Petitioner's Nelson motion, Petitioner appeared for sentencing on August 3, 2016. [ECF No. 60 at 66]. At that time, Petitioner stated he would be representing himself. [Id. at 67]. In response, the Court indicated it would need to conduct a Faretta² inquiry. [Id.]. In response to the court's colloquy, Petitioner acknowledged and understood he had the right to have a lawyer represent him, and that if he could not afford to hire an attorney, one would be appointed for him. [Id.]. When asked if he wanted to have an attorney appointed to represent him, Petitioner responded that he did not. [Id.]. Petitioner affirmed understanding the charges against him, and further affirmed not having any questions for the court. [Id.]. Petitioner understood that he would not get any special treatment nor would he be entitled to a continuance because he was representing himself. [Id. at 67-68]. Petitioner understood that his access to legal services would be severely limited because he was in custody, and although not required to possess the legal skills or knowledge of an attorney, he would be required to abide by the rules of criminal law and courtroom procedure. [Id. at 69]. Petitioner also acknowledged that if he became disruptive the court could terminate his self-representation, remove him from the courtroom, continue any hearings outside Petitioner's presence, and appoint an attorney at that point to continue to represent Petitioner. [Id.]. Petitioner also acknowledged that he had previously represented himself in a trial after which the jury found him not guilty of "a very serious criminal offense." [Id. at 71]. Atthe conclusion of the colloquy, when asked if he still wanted to represent himself Petitioner indicated that he did, and the court granted the request, stating "All right." [Id.].

Thereafter, when asked if he had any "additions, deletions or corrections" to the sentencing guideline scoresheet, Petitioner stated, "No." [Id. at 73]. After Petitioner acknowledged there was no legal cause why sentence should not be pronounced, he further agreed with the amount of prior convictions listed therein. [Id]. When asked if he wanted to say anything prior to imposition of sentence, Petitioner explained, "No. I do not want to accept the prison time for this. I really don't want to go to prison. The whole purpose of me taking that boat was to seek political asylum to avoid persecution. I am not going to accept prison time...." [Id. at 75]. The Court advised Petitioner that he scored 72.525 months, and that he needed "to have some reason to depart from that number," such as a "negotiated plea." [Id.]. Otherwise, the court observed it would be required to impose 72.525 months of imprisonment as a minimum unless there is something in mitigation. [Id]. When given the chance to speak, the court commented that Petitioner chose to remain silent. [Id.]. The State, however, indicated it was willing to agree to a sixty-month term of imprisonment "as a negotiated plea as a downward departure to save you at least a year..." [Id.].

The Court again asked Petitioner if he wanted to accept the State's negotiate offer or proceed with the 72.525 minimum sentence unless he could present some evidence in support of mitigation. [Id. at 75-76]. In response, Petitioner stated that (1) he was under "extreme duress" at the time of the charged offenses; (2) he feared for his life when he took the boat; and, (3) that, at the time of the charged offenses, he had serious mental issues at the root of his alleged chest pains. [Id. at 76-77]. Petitioner emphatically insisted he would not accept prison time on a negotiated plea, and asked that court that if a long prison sentence was required, that it be an extended probation sentence rather than incarceration. [Id. at 77]. Next, the trial court adjudicated Petitionerguilty and sentenced him to two concurrent terms of sixty months of imprisonment. [ECF No. 61-1, Exs. U-V at 44-50]. After his motion to stay and for rehearing were denied, Petitioner prosecuted a direct appeal, raising eight...