Mack, Jr. v. Secretary, Department of Corrections (Hillsborough County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JESSIE JAMES MACK, JR.,

Petitioner,

v. Case No. 8:20-cv-1507-T-33AAS

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

This cause is before the Court on Petitioner Jessie James Mack, Jr.’s timely-filed

pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).

Respondent filed a response in opposition to the petition. (Doc. 7). Mack did not file a

reply. Upon consideration, it is ORDERED that the petition is DENIED:

PROCEDURAL HISTORY

Mack was charged with aggravated battery with a weapon (count one) and armed

false imprisonment (count two). (Doc. 7-2 Ex. 2). A jury convicted him of the lesser-

included offense of felony battery as to count one, and found that he carried, displayed,

used, threatened to use, or attempted to use a weapon in the course of the battery. (Doc.

7-2 Ex. 5) Mack was acquitted of count two. (Id.). The state trial court sentenced Mack to

30 years in prison as a habitual violent felony offender. (Doc. 7-3 Ex. 7). The state

appellate court per curiam affirmed the conviction and sentence. (Doc. 7-3 Ex. 13).

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act governs this proceeding. Carroll

v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can be granted only

if a petitioner is in custody “in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot

be granted on a claim adjudicated on the merits in state court unless the state court’s

adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

A decision is “contrary to” clearly established federal law “if the state court arrives

at a 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.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A

decision involves an “unreasonable application” of clearly established federal law “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.

The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that

state-court convictions are given effect to the extent possible under law.” Bell v. Cone,

535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s

application of clearly established federal law is objectively unreasonable, and . . . an

unreasonable application is different from an incorrect one.” Id. at 694; see also

Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas

corpus from a federal court, a state prisoner must show that the state court’s ruling on the

claim being presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.”). The state appellate court affirmed Mack’s conviction and

sentence without discussion. This decision warrants deference under § 2254(d)(1)

because “the summary nature of a state court’s decision does not lessen the deference

that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002).

EXHAUSTION OF STATE REMEDIES; PROCEDURAL DEFAULT

A federal habeas petitioner must exhaust his claims by raising them in state court

before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel,

526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity

to act on his claims before he presents those claims to a federal court in a habeas

petition.”). The exhaustion requirement is satisfied if the petitioner fairly presents his claim

in each appropriate state court and alerts that court to the federal nature of the claim.

Picard v. Connor, 404 U.S. 270, 275-76 (1971).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default

which will bar federal habeas relief, unless either the cause and prejudice or the

fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d

1135, 1138 (11th Cir. 2001); see also Snowden v. Singletary, 135 F.3d 732, 736 (11th

Cir. 1998) (stating that unexhausted claims that “would now be procedurally barred in

state court due to a state-law procedural default” provide no basis for federal habeas

relief).

DISCUSSION

I. Grounds One, Two, Three, Four, And Six

In Ground One, Mack contends that the trial court erred in admitting a photograph

of the victim. In Ground Two, Mack argues that the trial court erred in denying in part the

defense’s motion in limine. In Ground Three, Mack asserts that the trial court erred in

finding a child witness competent to testify. In Ground Four, Mack alleges that the trial

court erred in allowing the prosecutor to make impermissible closing argument. In Ground

Six, Mack argues that the trial court erred in denying his post-trial motion for judgment of

acquittal or new trial.

Mack does not allege any violation of his federal rights in these grounds.

Accordingly, they are not cognizable on federal habeas review. See Branan v. Booth, 861

F.2d 1507, 1508 (11th Cir. 1988) (“[A] habeas petition grounded on issues of state law

provides no basis for habeas relief.”). Even if the Court liberally interpreted his claims as

federal in nature, however, the claims are unexhausted. When Mack raised these issues

on direct appeal, he presented them solely in terms of state law. (Doc. 7-3 Ex. 11, pp. 19-

24, 27-28). Mack did not identify the claims as federal, allege a violation of his federal

rights, or cite any federal authority. (Id.).

Since Mack therefore failed to alert the state appellate court to a federal claim, he

did not satisfy the exhaustion requirement. See Duncan v. Henry, 513 U.S. 364, 365-66

(1995) (“If state courts are to be given the opportunity to correct alleged violations of

prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are

asserting claims under the United States Constitution.”); Preston v. Sec’y, Fla. Dep’t of

Corr., 785 F.3d 449, 457 (11th Cir. 2015) (“The crux of the exhaustion requirement is

simply that the petitioner must have put the state court on notice that he intended to raise

a federal claim.”); Pearson v. Sec’y, Dep’t of Corr., 273 F. App’x 847, 849-50 (11th Cir.

2008) (“The exhaustion doctrine requires the petitioner to ‘fairly present’ his federal claims

to the state courts in a manner to alert them that the ruling under review violated a federal

constitutional right.”).

Mack cannot return to state court to present the federal claims because state

procedures do not allow for second direct appeals. See Fla. R. App. P. 9.140(b)(3) (stating

that a notice of appeal must be filed within 30 days of the rendition of the sentence).

Accordingly, the claims are procedurally defaulted. See Smith, 256 F.3d at 1138. Mack

has not alleged or demonstrated that an exception applies to overcome the default. See

id. Accordingly, Grounds One, Two, Three, Four, and Six are barred from federal habeas

review.1

Ground Five

In Ground Five, Mack argues the evidence is insufficient to sustain his conviction.

Mack does not expressly argue a federal constitutional violation in Ground Five.

Accordingly, his claim is not cognizable in this proceeding. See Branan, 861 F.2d at 1508.

Even interpreting his argument as raising a federal due process claim, and assuming that

such a claim was exhausted on appeal,2 Mack has not demonstrated that the state court

unreasonably denied his claim. The sufficiency of the evidence standard asks whether,

1 To the extent that Ground Six may be interpreted as containing a challenge to the sufficiency of the

evidence, such a claim is denied for the same reasons addressed in Ground Five.

2 Mack did not allege a federal constitutional violation when he raised this claim on direct appeal. (Doc. 7-

3 Ex. 11, pp. 24-26). Some case law supports the proposition that a federal habeas petitioner may exhaust

a federal sufficiency of the evidence claim by bringing an analogous state law claim on appeal when the

federal and state courts would apply the same standard of review. See Mulnix v. Sec’y, Dep’t of Corr., 254

F. App’x 763 (11th Cir. 2007). The Eleventh Circuit Court of Appeals cast doubt on this proposition but

declined to resolve the question. See Preston, 785 F.3d at 459-60.

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). On federal habeas review, this standard must be applied “with

explicit reference to the substantive elements of the criminal offense as defined by state

law.” Id. at 324 n.16.

To prove the offense of felony battery, the State was required to show beyond a

reasonable doubt that Mack (1) actually and intentionally touched or struck the victim

against her will and (2) caused the victim “great bodily harm, permanent disability, or

permanent[ ] disfigurement.” (Doc. 7-2, Ex. 4, pp. 508-09). See § 784.041(1), Fla. Stat.

Mack argues that the State failed to prove that he caused the victim great bodily

harm, permanent disability, or permanent disfigurement. Mack contends that the victim’s

injuries only amounted to “slight, trivial, minor or modest harm.” (Doc. 1, pp. 8-9). Mack

cites the trial testimony of Officer Scott Bowman. Officer Bowman interviewed the victim,

Mack’s wife, at a hospital. Officer Bowman testified that the victim had small cuts on her

arm and nose and gauze over the side of her abdomen. (Doc. 7-2, Ex. 4, pp. 274-75). In

support of his claim, Mack also states that the victim did not receive medical treatment

until the day after the incident and did not contact law enforcement “until at least a full day

after.” (Doc. 1, p. 8).

However, Mack does not address other evidence adduced at trial about the victim’s

injuries and the circumstances surrounding the offense that caused the victim to delay

seeking medical treatment. The victim testified at trial that Mack pushed her, and she

“flew back” into a china cabinet, causing the glass of the cabinet to break. (Doc. 7-2 Ex.

4, pp. 210-11). The victim ran to the garage, where her children were playing. (Id., p. 211).

Mack followed her. (Id., pp. 211-12). Mack had two pieces of glass in his hand and

repeatedly stated, “My wife got to die and I got to die.” (Id., p. 212). When the victim yelled

at Mack to stop, Mack ran to the victim, picked her up by the throat, slammed her to the

ground, and stabbed her twice in her side with the pieces of broken glass. (Id., pp. 212-

13). When Mack apparently realized that the victim was about to scream, he held the

broken glass to her throat and said something like, “If you scream I’m going to f-ing cut

your throat in front of your kids.” (Id., p. 213). Later, Mack grabbed the victim and

headbutted her “super hard.” (Id., p. 219).

The victim testified that she was able to bandage her arm, but that she could not

bandage the wound on her side because it was “too wide.” (Id., pp. 220-21). Mack stated

that the victim’s abdominal wound “looked bad” and, that night, drove with the victim to a

drugstore where he bought a large bandage so that they would not have to go to the

hospital. (Id., p. 224). The next morning, Mack commented that the victim needed medical

attention, and she went to the hospital. (Id., pp. 223-24, 228-29). She told Mack that she

would say she sustained her injuries when a glass table fell on her; however, once she

was alone with a doctor, she disclosed the incident. (Id., pp. 228-30). The victim testified

that she did not call 911 because she feared that Mack would kill her and her children,

and that she did not feel free to leave the house. (Id., pp. 225-27).

The victim testified that her nose is permanently fractured and that she has

permanent scarring from the injuries she sustained. (Id., p. 242). She testified that she

has a “big keloid” scar on her abdomen from the stabbing. (Id.). The victim showed her

nose and scars to the jury. (Id., pp. 242-43). The State also introduced medical records

and photographs of the victim. (Id., pp. 225-27, 232-33).

Mack fails to show that the state presented insufficient evidence to sustain the

conviction. “Great bodily harm defines itself and means great as distinguished from slight,

trivial, minor, or moderate harm, and as such does not include mere bruises as are likely

to be inflicted in a simple assault and battery. . . . Whether the evidence describing such

harm or injury is within the meaning of the statute . . . is generally a question of fact for

the jury.” Owens v. State, 289 So.2d 472, 474 (Fla. 2d DCA 1974) (citation omitted). In

light of the evidence about the victim’s injuries and the subsequent effects of those

injuries, Mack fails to establish that no reasonable trier of fact, after viewing the evidence

in the light most favorable to the prosecution, could have found proof of guilt beyond a

reasonable doubt. Jackson, 443 U.S. at 319.

Therefore, Mack has not met his burden of demonstrating that the state court’s

rejection of his claim was contrary to, or an unreasonable application of, clearly

established federal law. Nor does he demonstrate that the state court’s decision was

based on an unreasonable factual determination. Accordingly, Mack is not entitled to relief

on Ground Five.

Ground Seven

Mack claims that his 30-year sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment because it is excessive and is

disproportionate to the crime. Mack raised this claim on direct appeal. (Doc. 7-3, Ex. 11,

pp. 28-30). The state appellate court rejected the claim without discussion when it per

curiam affirmed Mack’s conviction and sentence.

The Eighth Amendment “contains a narrow proportionality principle that applies to

noncapital sentences.” United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006)

(quoting Ewing v. California, 538 U.S. 11, 20 (2003)). “The concept of proportionality is

central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and

unusual punishments is the ‘precept of justice that punishment for crime should be

graduated and proportioned to [the] offense.’” Graham v. Florida, 560 U.S. 48, 59 (2010)

(quoting Weems v. United States, 217 U.S. 349, 367 (1910)). Accordingly, the Eighth

Amendment “forbids only extreme sentences that are grossly disproportionate to the

crime.” Id. at 60 (citing Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991)).

Furthermore, “[i]n general, a sentence within the limits imposed by statute is

neither excessive nor cruel and unusual under the Eighth Amendment.” Johnson, 451

F.3d at 1243 (quoting United States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005)).

Felony battery is ordinarily a third degree felony. § 784.041(3), Fla. Stat. However, as the

jury found that Mack carried, displayed, used, threatened to use, or attempted to use a

weapon in the course of the battery, this offense was re-classified as a second degree

felony. § 775.087(1)(c), Fla. Stat. When a defendant qualifies as a habitual felony violent

offender—as Mack did in this case—a court may impose a sentence of up to 30 years for

a second degree felony. § 775.084(4)(b)2., Fla. Stat. Thus, Mack’s sentence was within

the applicable statutory range.

Mack fails to show that his sentence is grossly disproportionate to the crime and

thus violates the Eighth Amendment. He has not identified any clearly established federal

law that compels the conclusion that his sentence, which was within the limits set out

under Florida law, was so grossly disproportionate to the offense as to violate the Eighth

Amendment. Accordingly, Mack fails to demonstrate that the state appellate court’s

rejection of this claim was contrary to, or an unreasonable application of, clearly

established federal law. Nor has he shown that the state court’s decision was based on

an unreasonable factual determination. Mack is not entitled to relief on Ground Seven.

Ground Eight

Mack contends that he is entitled to relief on the basis of the cumulative effect of

the trial court’s alleged errors. As Mack does not clearly allege a violation of his federal

constitutional rights, his claim is not cognizable in this proceeding. See Branan, 861 F.2d

at 1508. Even liberally construing his claim to assert a federal due process violation, and

assuming that his reference to a United States Supreme Court decision was sufficient to

exhaust a federal claim on appeal, Mack has not shown that federal habeas relief is

warranted. Because Mack has not demonstrated entitlement to relief on any of his claims

of trial court error, his cumulative error claim necessarily fails. See Morris v. Sec’y, Dep’t

of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) (stating, in rejecting a cumulative error

claim, that “none of Morris’s individual claims of error or prejudice have any merit, and

therefore we have nothing to accumulate.”). Thus, Mack does not show that the state

court’s rejection of his cumulative error claim on direct appeal was contrary to, or an

unreasonable application of, clearly established federal law or was based on an

unreasonable factual determination. Ground Eight warrants no relief.

It is therefore ORDERED that Mack’s petition (Doc. 1) is DENIED. The CLERK is

directed to enter judgment against Mack and to CLOSE this case.

CERTIFICATE OF APPEALABILITY AND

LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

It is further ORDERED that Mack is not entitled to a certificate of appealability

(“COA”). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal

a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a COA must first

issue. Id. “A [COA] may issue . . . only if the applicant has made a substantial showing of

the denial of a constitutional right.” /d. at § 2253(c)(2). To obtain a certificate of

appealability, Mack must show that reasonable jurists would find debatable both (1) the

merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mack has not made

the requisite showing. Finally, because Mack is not entitled to a COA, he is not entitled to

appeal in forma pauperis.

ORDERED in Tampa, Florida, on November 25, 2020.

lagi □□□ Munenby Croc

VIRGINIA M. HERNANDEZ‘COVINGTON

UNITED STATES DISTRICT JUDGE

Jessie James Mack, Jr.

Counsel of Record

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