Pugh v. Sec'y

GEORGE CHRISTOPHER PUGH, Petitioner, v. SECRETARY, DOC, et al., Respondents.

Case No. 3:14-cv-638-J-39JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

January 25, 2017

ORDER

I. INTRODUCTION

Petitioner George Christopher Pugh challenges a 2009, Duval County, conviction for sale or delivery of cocaine. Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1) at 1. He raises two grounds. The Court will address these grounds, See Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992), but no evidentiary proceedings are required in this Court.

Respondents filed a Response to Petition for Habeas Corpus (Response) (Doc. 9). In support of their Response, they submitted Exhibits (Doc. 9).¹ Petitioner filed a Reply to the State's Response (Reply) (Doc. 14). See Order (Doc. 6). Respondents calculate that the Petition is timely filed. Response at 1-3.

II. CLAIMS OF PETITION

Petitioner raises two grounds in his Petition: (1) ineffective assistance of counsel for failure to adequately and timely file a motion to dismiss concerning Petitioner's detention for a period of 45 days without being charged, and (2) trial court error for sentencing Petitioner to twenty-five years in prison as an habitual felony offender although Petitioner did not meet the habitual offender criteria. Respondents urge this Court to find that Petitioner failed to allege a violation of a federal right in his first ground, and raised a state law claim in his second ground that is not cognizable in federal habeas court. Response at 3-7.

III. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a state prisoner's federal petition for habeas corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), petition for cert. filed, - U.S. - (U.S. Oct. 14, 2016) (No. 16-6444). "'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, 132 S.Ct. 38, 43 (2011)).

Under AEDPA, when a state court has adjudicated the petitioner's claim on the merits, a federal court may not grant habeas relief unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). A state court's factual findings are presumed correct unless rebutted by clear and convincing evidence.[²] Id. § 2254(e)(1); Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir. 2011).

..."It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." [Harrington v. Richter, 562 U.S. 86, 101 (2011)] (citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). The Supreme Court has repeatedly instructed lower federal courts that an unreasonable application of law requires more than mere error or even clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer, 538 U.S. at 75 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."); Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("[A]n unreasonable application of federal law is different from an incorrect application of federal law.").

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013), cert. denied, 135 S.Ct. 67 (2014).

In applying AEDPA deference, the first step is to identify the last state court decision that evaluated the claim on its merits. See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc), petition for cert. filed, - U.S. - (U.S. Nov. 10, 2016) (No. 16-6855); Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). Regardless of whether the last state court provided a reasoned opinion, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 562 U.S. at 99; see also Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013).

Where the last adjudication on the merits is "'unaccompanied by an explanation,' a petitioner's burden under section 2254(d) is to 'show [ ] there was no reasonable basis for the state court to deny relief.'" Wilson, 834 F.3d at 1235 (quoting Richter, 562 U.S. at 98). "[A] habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the] Court." Richter, 562 U.S. at 102; see also Wilson, 834 F.3d at 1235; Marshall, 828 F.3d at 1285. To determine which theories could have supported the state appellate court's decision, the federal habeas court may look to a state trial court's previous opinion as one example of a reasonable application of law or determination of fact; however, the federal habeas court is not limited to assessing the reasoning of the lower court. Wilson, 834 F.3d at 1239. As such,

even when the opinion of a lower state court contains flawed reasoning, [AEDPA] requires that [the federal court] give the last state court to adjudicate the prisoner's claim on the merits "the benefit of the doubt," Renico [v. Lett, 449 U.S. 766, 733 (2010)] (quoting [Woodford v. Visciotti, 537 U.S. 19, 24 (2002)] ), and presume that it "follow[ed] the law," [Woods v. Donald, --- U.S. ----, 135 U.S. 1372, 1376 (2015)] (quoting Visciotti, 537 U.S. at 24).

Wilson at 1238; see also Williams, 133 S.Ct. at 1101 (Scalia, J., concurring).

IV. PROCEDURAL HISTORY

Respondents provide a brief procedural history in their Response. Response at 1-3. Petitioner accepts this procedural history as accurately presented. Reply at 1.

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Ground One

In his first ground, Petitioner claims ineffective assistance of counsel for failure to adequately and timely file a motion to dismiss concerning Petitioner's detention for a period of 45 days without being charged. Petition at 5. Petitioner states:

Defendant was arrested on 11/22/2008, and was held in county jail (Duval County, FL) without being formally charged by the State of Florida until January 5, 2009, a total of 45 days. Defendant repeatedly advised his trial counsel about this violation of criminal procedures governing the detention of offenders without being formally charged, counsel failed to move the court for a dismissal and discharge of Defendant.

Id.

In ground one, Petitioner raises a claim of ineffective assistance of trial counsel. Id. Petitioner exhausted this ground by raising it in his Rule 3.850 motion. Ex. H at 6. The trial court denied relief, id. at 11, and the First District Court of Appeal per curiam affirmed. Ex. K.

This Court must be mindful that in order to prevail on this Sixth Amendment claim, Petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984), requiring that he show both deficient performance (counsel's representation fell below an objective standard of reasonableness) and prejudice (there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different).

Of note, on March 20, 2009, the circuit court conducted a motion for release hearing addressing the delay in filing the information. Ex. A at 79-86. Defense counsel argued that the division was in session on January 2, 2008, the fortieth day, but the information is dated January 5, 2008. Id. at 82. The circuit court, after hearing argument, denied the motion for release. Id. at 86.

In denying the Rule 3.850 motion, the circuit court opined:

Defendant's second claim asserts that his counsel was ineffective for failing to file a motion to dismiss the charges against him, providing that the basis for the motion was the fact that charges were not filed until Defendant was in jail for forty-seven (47) days. This Court notes that had counsel filed a motion to dismiss, the State could have filed a traverse pursuant to Rule 3.190(d) denying material facts alleged in the motion, which would have required the Court to deny the motion. State v. Kalogeropolous, 758 So.2d 110, 111 (Fla. 2000); Whitted v. State, 992 So.2d 352, 353 (Fla. 4th DCA 2008). Therefore, the Defendant has failed to show the necessary prejudice to prevail on this claim. Strickland, 466 U.S. at 687. Further, even if the State did not file a traverse to the motion, the Defendant has failed to establish prejudice because his allegations do not support dismissal of the charges.

Ex. H at 11.

Petitioner appealed, Ex. I, and the state filed a notice that it would not file an answer brief. Ex. J. The First District Court of Appeal per curiam affirmed on November 8, 2012. Ex. K. The mandate issued on December 4, 2012. Ex. PD-2 at 13.

Respondents contend that Petitioner does not allege a violation of a federal right. Response at 4. In order to address this claim, the Court must be mindful of the purpose of a federal habeas proceeding: to review the lawfulness of Petitioner's custody to determine whether that custody is in violation of the Constitution or laws or treaties of the United States. See Coleman v. Thompson, 501 U.S. 722 (1991). There has been no breach of a federal constitutional mandate in the instant case.

Under the circumstances, Petitioner was not entitled to dismissal under the United States Constitution. Indeed, Rule 3.134, Fla. R. Crim. P., ...