Brown v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ULYSSES BROWN,

Petitioner,

v. Case No. 3:18-cv-772-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Ulysses Brown, an inmate of the Florida penal system,

initiated this action on June 11, 2018,1 by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). Brown is proceeding on an

amended petition (Amended Petition; Doc 17). In the Amended Petition, Brown

challenges two 1983 state court (Duval County, Florida) judgment of

convictions for robbery with a weapon and robbery with a firearm. Brown

raises one ground for relief. See Amended Petition at 7-9.2 Respondents have

submitted a memorandum in opposition to the Petition. See Response to

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference, the Court will cite the page number assigned by the

Court’s electronic docketing system.

Petition for Writ of Habeas Corpus (Response; Doc. 19) with exhibits (Resp.

Ex.). Brown filed a brief in reply. See Doc. 24. This case is ripe for review.

II. Relevant Procedural History

On August 5, 1982, the State of Florida (State) charged Brown by way of

Information in Case Number 1982-CF-6820 with robbery with a deadly

weapon. Resp. Ex. 3 at 9. On March 7, 1983, the State charged Brown in Case

Number 1982-CF-6845 by way of Amended Information with robbery with a

firearm. Resp. Ex. 3 at 48-49. Following a trial in Case Number 1982-CF-6845,

a jury found Brown guilty of robbery and made a specific finding that Brown

carried a firearm during the commission of the offense. Id. at 55. On April 25,

1983, Brown entered into a negotiated plea of no-contest in Case Number 1982-

CF-6820. Id. at 62. That same day, the trial court sentenced Brown in both

cases to a term of incarceration of 120 years in prison, with a three-year

minimum mandatory sentence. Id. at 63-66, 68-71. The trial court retained

jurisdiction over Brown in both cases for review of any Parole Commission

release order for half of the sentence and it also ordered the sentences to run

concurrently. Id. On May 2, 1983, Brown filed a motion to correct illegal

sentence in both cases, in which he challenged the trial court’s determination

to retain jurisdiction over the case. Id. at 74-76, 78-80. The trial court denied

the motions. Id. at 77, 81.

On May 10, 1983, with the assistance of counsel, Brown filed a direct

appeal challenging his convictions and sentences in both cases. Id. at 83. On

February 21, 1984, Florida’s First District Court of Appeal (First DCA) found

that the imposition of the three-year minimum mandatory in Case Number

1982-CF-6820 was improper and struck it. Resp. Ex. 7. The First DCA affirmed

the convictions and sentences in all other aspects. Id.

On September 22, 1993, Brown filed a pro se motion to correct illegal

sentence in both cases again arguing the trial court could not retain

jurisdiction over his case for half of his sentence. Resp. Ex. 8 at 1-2. The

postconviction court denied relief. Id. at 3-4. The First DCA affirmed the denial

of relief and on February 10, 1995, it denied Brown’s motion for rehearing.

Resp. Ex. 9. Brown appealed to the Florida Supreme Court, but the court

dismissed the appeal for lack of jurisdiction. Resp. Ex. 10.

Brown filed another pro se motion to correct an illegal sentence in both

cases on August 13, 1996. Resp. Ex. 11 at 1-20. There, he argued the trial court

incorrectly characterized both offenses as life felonies, the sentences exceeded

the statutory maximum, and the trial court failed to state its justification for

retaining jurisdiction. Id. The postconviction court denied relief. Id. at 31.

Brown moved for rehearing, id. at 32-35, which the postconviction court denied,

id. at 41. On March 27, 1997, the First DCA dismissed Brown’s appeal as

untimely. Resp. Ex. 12.

On June 19, 1997, Brown filed in both cases a motion to correct illegal

sentence raising the same claims he previously raised in his August 13, 1996

motion. Resp. Ex. 13 at 1-19. The postconviction court denied relief, finding

that Brown previously raised the claims in his prior motion. Id. at 20-21. On

December 30, 1997, the First DCA affirmed the denial of relief in a written

opinion but struck the portion of the order that barred Brown from filing any

more motions to correct an illegal sentence. Resp. Ex. 14. The First DCA issued

the Mandate on January 15, 1998. Id.

On February 11, 1998, Brown filed a petition for writ of habeas corpus

with the First DCA asserting ineffective assistance of appellate counsel in the

appeal of Case Number 1982-CF-6845. Resp. Ex. 15 at 1-24. He argued his

appellate counsel was deficient for failing to raise a claim that the trial court

erred by refusing to give an instruction on attempted armed robbery and erred

by denying Brown’s motion for new trial, as well as failing to raise claims of

prosecutorial misconduct. Id. On April 6, 1998, the First DCA denied relief on

the petition. Resp. Ex. 16.

On August 31, 1998, Brown filed a pro se petition for writ of habeas

corpus with the Florida Supreme Court. Resp. Ex. 17 at 1-33. In the petition,

he alleged that section 923.03, Florida Statutes, the statute authorizing the

trial court’s continued jurisdiction over Brown’s sentences in both cases, was

unconstitutional. Id. On November 3, 1998, the Florida Supreme Court denied

the petition on the merits. Resp. Ex. 18. On February 2, 2000, Brown refiled

the same petition in both criminal cases. Resp. Ex. 19 at 1-25. The

postconviction court ordered Brown to show cause why the petition should not

be deemed frivolous and why sanctions should not be imposed. Id. at 43-45.

Following Brown’s response, id. at 46-52, on October 9, 2000, the postconviction

court dismissed the petition as procedurally barred, without recommending

sanctions, id. at 53-54. Brown moved for rehearing, id. at 55-59, which the

postconviction court denied, id. at 60. Brown appealed, but later moved to

voluntarily dismiss the appeal, and the First DCA dismissed Brown’s appeal

on October 26, 2001. Resp. Ex. 20.

On March 1, 2000, Brown submitted a letter to the postconviction court

in both cases requesting that his presentence investigation report (PSI) be

unsealed. Resp. Ex. 21 at 1-6. The postconviction court denied the request on

March 14, 2000. Id. at 10-11. The First DCA dismissed Brown’s appeal of the

denial of this request for lack of prosecution and denied his motion for

rehearing on May 25, 2001. Resp. Ex. 22.

Unsuccessful in obtaining relief through his criminal cases, on August

21, 2000, Brown filed a civil complaint arguing that his convictions and

sentences in both criminal cases were obtained by extrinsic fraud. Resp. Ex. 23

at 1-20. The circuit court dismissed the complaint, finding Brown’s claims

should have been raised in a postconviction motion in his criminal cases. Id. at

36-37. On December 18, 2001, the First DCA per curiam affirmed the dismissal

of the complaint without a written opinion and on January 15, 2002, it issued

the Mandate. Resp. Ex. 26.

Returning to the criminal cases, on January 6, 2002, Brown filed a pro

se motion for correction of sentence in both cases and later supplemented and

amended the motion. Resp. Ex. 27 at 1-56. Brown argued that the trial court

erred in retaining jurisdiction over his cases and his sentences exceeded the

statutory maximum. Id. The postconviction court denied the motion as

procedurally barred. Resp. Ex. 28 at 145-46. The First DCA per curiam

affirmed the denial of relief on November 23, 2004, and issued the Mandate on

December 21, 2004. Resp. Ex. 29.

On July 7, 2006, Brown again filed in both cases a pro se request to

unseal his PSI. Resp. Ex. 30 at 1-3. The postconviction court denied relief,

noting Brown previously had filed such a request that was denied. Id. at 4-5.

On December 13, 2007, the First DCA per curiam affirmed the denial of relief

and on January 8, 2008, it issued the Mandate. Resp. Ex. 35.

Brown filed a pro se motion to vacate his convictions and sentences in

both cases on October 30, 2006. Resp. Ex. 36 at 1-31. In the motion, he alleged

his sentences were improperly imposed as a result of mistakes in the PSI. Id.

The postconviction court denied the motion. Id. at 99-101. Brown moved for

rehearing, id. at 116-22, which the postconviction court denied, id. at 146-47.

The First DCA per curiam affirmed the denial of the motion without a written

opinion on August 7, 2008, and issued the Mandate on September 3, 2008.

Resp. Ex. 39.

Brown filed a pro se petition for writ of habeas corpus in Florida’s Third

Judicial Circuit on February 18, 2008, that was later transferred to the Fourth

Judicial Circuit. Resp. Ex. 41 at 1-10. In the petition, Brown contended that

the trial court lacked jurisdiction in both cases. Id. On March 13, 2008, a civil

circuit court judge in the Fourth Circuit denied Brown’s petition for writ of

habeas corpus. Resp. Ex. 40 at 1-2. The court also denied Brown’s motion for

rehearing. Id. at 9-10. On November 17, 2009, the First DCA affirmed the

denial of the petition, and following an order to show cause, sanctioned Brown

for his “incessant initiation of [frivolous] proceedings” and prohibited him from

filing pro se pleadings in the First DCA related to his conviction and sentences

in both cases. Resp. Ex. 42. On December 15, 2009, the First DCA issued the

Mandate. Id. Undeterred, Brown continued to file pro se pleadings with the

First DCA, which led the First DCA on August 10, 2017, to recommend to the

Florida Department of Corrections (DOC) that it institute disciplinary

proceedings against Brown. Resp. Ex. 43.

On October 3, 2011, Brown filed a pro se motion to correct illegal

sentence in Case Number 1982-CF-6820. Resp. Ex. 44. In the Motion, Brown

alleged that the three-year minimum mandatory sentence was illegal, and the

trial court erred in retaining jurisdiction over the case. Id. Brown amended the

motion on July 10, 2015, filing it in both cases, and argued only that the trial

court erred in retaining jurisdiction over the cases. Resp. Ex. 45. On June 12,

2017, the postconviction court struck the original motion as moot and granted

the amended motion as to Case Number 1982-CF-6820 but denied relief as to

Case Number 1982-CF-6845. Resp. Ex. 46. Pursuant to the order, the

postconviction court relinquished “jurisdiction over the sentence in Case

Number 82CF-6820 as the sentence was to run concurrent with the sentence

in Case Number 82CF-6845.” Id. Brown moved for rehearing in Case Number

1982-CF-6820, Resp. Ex. 47, which the postconviction court denied, Resp. Ex.

48.

On September 27, 2012, Brown moved for leave to file a pro se petition

for writ of habeas corpus with the First DCA. Resp. Ex. 49. The First DCA

issued an order to show cause why sanctions should not be imposed. Resp. Ex.

50. Following his response, on December 19, 2012, the First DCA dismissed

the petition and recommended the DOC institute disciplinary proceedings

against Brown. Resp. Ex. 51. The First DCA denied Brown’s motion for

rehearing on January 31, 2013. Resp. Ex. 52. Brown appealed to the Florida

Supreme Court, Resp. Ex. 53, but the court dismissed the appeal for lack of

jurisdiction. Resp. Ex. 56.

Brown filed a pro se petition for writ of habeas corpus directly with the

Florida Supreme Court on October 3, 2014. Resp. Ex. 57. In the pro se petition,

he again argued the trial court erred in retaining jurisdiction over his cases.

Id. On December 15, 2014, the Florida Supreme Court denied the petition as

procedurally barred. Resp. Ex. 58.

Undeterred, On February 12, 2015, Brown sought to obtain relief

through a “next friend” Gladys Barrington (a non-lawyer). Resp. Ex. 60.

Barrington filed a petition for writ of habeas corpus seeking to argue the trial

court erred in retaining jurisdiction over Brown’s cases. Resp. Ex. 59. The First

DCA denied Barrington’s motion to proceed as “next friend” and dismissed the

petition in accordance with its prior order banning Brown from filing pleadings

not signed by a Florida attorney. Resp. Ex. 61.

In Case Number 1982-CF-6820, Brown filed a pro se motion to withdraw

plea on October 24, 2016. Resp. Ex. 62. He argued that the trial court

improperly retained jurisdiction over both his cases. Id. The circuit court

dismissed the motion as untimely on November 2, 2016. Id.

Brown filed yet another pro se motion to correct illegal sentence in both

cases on July 12, 2017, in which he argued that the postconviction court erred

by resentencing him on June 12, 2017, without him being present. Resp. Ex.

63. The postconviction court denied relief on the motion on August 11, 2017.

Resp. Ex. 64. On April 26, 2018, Brown filed a “revised” motion to correct illegal

sentence in both cases, raising the same issue of being resentenced in absentia

and also contending that the postconviction court erred in not allowing him to

select a guidelines sentence. Resp. Ex. 65. The postconviction court again

denied relief and also cautioned Brown that he would face sanctions if he

continued to file frivolous pleadings. Resp. Ex. 66.

On October 16, 2018, Brown filed a pro se motion requesting the

postconviction court to enter a new judgment and sentence document in Case

Number 1982-CF-6820. Resp. Ex. 67. On October 25, 2018, the postconviction

court granted the motion and directed the Clerk to remove from the judgment

and sentence the three-year minimum mandatory and retention of jurisdiction

provisions. Resp. Ex. 68. The Clerk complied and modified the judgment and

sentence document accordingly, with notations indicating the modification to

the minimum mandatory term was nunc pro tunc to April 26, 1984, and the

modification to the retention of jurisdiction provision was nunc pro tunc to

June 12, 2017 . Resp. Ex. 69.

III. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

amended 28 U.S.C. § 2244 by adding the following subsection:

(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 exercise

of due diligence.

(2) The time during which a properly filed application

for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of

limitation under this subsection.

28 U.S.C. § 2244(d).

Respondents contend that the Amended Petition is untimely to the

extent it challenges Case Number 1982-CF-6845.3 Response at 2-30. Brown

3 Respondents concede that, “due to a new, intervening judgment rendered October

31, 2018, Petitioner’s amended § 2254 petition dated December 28, 2018 is timely with

respect to case number 1982-CF-6820[.]” Response at 3. Notably, the record reflects that on

October 25, 2018, the postconviction court directed the Clerk to modify the judgment and

sentence in Case Number 1982-CF-6820 but did not do the same in Brown’s other case. Resp.

alleges in a conclusory manner in the Amended Petition that it is timely.

Amended Petition at 14. In his Reply, he does not directly address the

timeliness of the Amended Petition other than to contend that Respondents

are trying to defeat his meritorious claim via technicalities. See generally

Reply.

As Brown’s convictions and sentences became final before the April 24,

1996 effective date of AEDPA, the one-year limitations period in Brown’s case

began to run on April 24, 1996, and expired on April 24, 1997. See Ferreira v.

Sec’y, Dep’t of Corr., 494 F.3d 1286, 1289 n.1 (11th Cir. 2007) (“The limitations

period would have ended on April 24, 1997, the anniversary date of the

triggering event, which was AEDPA’s effective date.”). Accordingly, as Brown

initiated this action on June 11, 2018, the Amended Petition is due to be

dismissed as untimely unless he can avail himself of the statutory provisions

which extend or toll the limitations period.

The record demonstrates that on the day the statute of limitations began,

Brown did not have any pending motion that would have tolled the statute of

limitations. On August 13, 1996, after 110 days of the statute of limitation had

passed, Brown filed a motion to correct an illegal sentence that tolled the

Exs. 1; 2; 46. Accordingly, the postconviction court did not enter a new judgment from which

to calculate the limitations period in Case Number 1982-CF-6845.

limitations period. Resp. Ex. 11 at 1-20. As Brown’s appeal of the denial of this

motion was dismissed as untimely, Resp. Ex. 12, the statute of limitations

period began to run again thirty days from August 30, 1996, the date the

postconviction court denied it, which mean the limitations period restarted on

September 30, 1996.4 As 110 days had already passed, Brown had 255 days left

to file a timely petition. Brown did not file any collateral motions in state court

during those 255 days, and the statute of limitations expired on June 12, 1997.

Although Brown filed a pro se motion on June 19, 1997, Resp. Ex. 13 at 1-19,

by then the limitations period had expired. Brown has failed to allege equitable

tolling or that he is actually factually innocent. Accordingly, in light of the

above analysis, this action is untimely as to Brown’s conviction and sentence

in Case Number 1982-CF-6845 and the Amended Petition is due to be

dismissed, in part, as untimely.

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “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,

4 The thirtieth day fell on September 29, 1996, but since that day was a Sunday, Brown

had until the next business day to file.

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017). “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.” Schriro, 550 U.S. at 474. The pertinent facts of this case are fully

developed in the record before the Court. Because the Court can “adequately

assess [Brown’s] claim[s] without further factual development,” Turner v.

Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not

be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘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, 565 U.S. 34, 38 (2011) (quotation marks

omitted)). As such, federal habeas review of final state court decisions is

“‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v.

Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “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) “was based on

an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“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.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “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.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’”[5] Titlow, 571 U.S. at

---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.

290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S.

Ct. 2298 (2017). Also, deferential review under § 2254(d) generally is limited

to the record that was before the state court that adjudicated the claim on the

merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating the language

in § 2254(d)(1) “requires an examination of the state-court decision at the time

it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,

562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.

5 The Eleventh Circuit has described the interaction between § 2254(d)(2) and §

2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th Cir.

2016), cert. denied, 137 S. Ct. 1103 (2017).

Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under 28

U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[6] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[7] supra, at 84–85, 97 S.

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

6 Coleman v. Thompson, 501 U.S. 722 (1991).

7 Wainwright v. Sykes, 433 U.S. 72 (1977).

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may

be excused under certain circumstances. Notwithstanding that a claim has

been procedurally defaulted, a federal court may still consider the claim if a

state habeas petitioner can show either (1) cause for and actual prejudice from

the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[8]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

8 Murray v. Carrier, 477 U.S. 478 (1986).

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

VI. Findings of Fact and Conclusions of Law

In the Amended Petition, Brown contends that “the trial court violated

his right to due process and representation of counsel as guaranteed and

protected under the 14th and 6th Amendments of the United States

Constitution when said court re-sentenced Petitioner in his absence and

without counsel[.]” Amended Petition at 7. The resentencing to which Brown

refers occurred on June 12, 2017, when the postconviction court granted

Brown’s July 10, 2015 motion to correct an illegal sentence in Case Number

1982-CF-6820. Resp. Ex. 46. In that order, the postconviction court

relinquished “jurisdiction over the sentence in Case Number 82CF-6820 as the

sentence was to run concurrent with the sentence in Case Number 82CF-6845.”

Id. Brown contends this was a resentencing at which he had a constitutional

right to be present and represented by counsel. Amended Petition at 7-8.

According to Brown, this constituted a resentencing because the state court

had “judicial discretion as to the new sentences” and the retention of

jurisdiction provision was a term of his negotiated plea agreement. Id. at 7.

Respondents contend this claim is unexhausted because even though

Brown raised a similar claim in state court, he did not appeal the denial of the

claim to the First DCA, thus they argue he did not invoke one complete round

of Florida’s established appellate review process. Response at 39-49. In the

Amended Petition, Brown contends that he could not appeal the denial of relief

on this claim because the First DCA barred him from filing pro se pleadings

related to both his criminal convictions at issue here. Amended Petition at 5-

7, 9. Respondents counter, however, that the reason he was barred from filing

is due to his own conduct, namely the filing of frivolous pleadings and abusing

the process. Response at 45-49. As such, Respondents argue that Brown’s

failure to exhaust cannot be excused by the First DCA’s decision to require any

pleadings from Brown challenging his criminal convictions to be signed by a

Florida attorney. Id.

The Court agrees with Respondents that the First DCA’s decision to bar

Brown from filing pro se pleadings does not constitute cause to overcome his

failure to exhaust this claim. See Lynn v. United States, 365 F.3d 1225, 1235

(11th Cir. 2004) (holding that “to show cause for procedural default, Lynn must

show that some objective factor external to the defense prevented Lynn or his

counsel from raising his claims on direct appeal and that this factor cannot be

fairly attributable to Lynn's own conduct.”); Claudio v. Sec'y, DOC, No. 3:13-

CV-178-J-39JRK, 2015 WL 5996932, at *9 (M.D. Fla. Oct. 14, 2015) (“Again,

his failure [to exhaust] is not excused as it was his own conduct which resulted

in the state courts banning further pro se pleadings, a sanction which the state

courts are specifically authorized to undertake.”). As detailed above, after

repeatedly filing frivolous pleadings, the First DCA gave Brown an opportunity

to challenge the imposition of sanctions and, after failing to show good cause,

the First DCA banned him from filing pro se. Notably, this ban did not prevent

Brown from pursuing an appeal at all, it only prevented him from doing so

without the assistance of counsel. Accordingly, Brown still had the opportunity

to fully exhaust this claim and his failure to be able to do so as a pro se litigant

is entirely attributable to his own abusive conduct. Moreover, Brown has

presented no evidence that he is actually factually innocent. As Brown has

failed to establish cause or his actual innocence, this claim is due to be denied

as unexhausted.

Nevertheless, even if properly exhausted, Brown would not be entitled

to relief. Sentencing is a critical stage of criminal proceedings, at which a

defendant is entitled to be present and to have appointed counsel. See Mempa

v. Rhay, 389 U.S. 128, 134 (1967); Gardner v. Florida, 430 U.S. 349, 358 (1967).

However, the United States Supreme Court has not extended this holding to

the modification of a sentence following the granting of a collateral motion.

Accordingly, it cannot be said that the state court’s ruling was contrary to or

an unreasonable application of clearly established federal law. See Washington

v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003) (recognizing that a state court

decision cannot be contrary to clearly established federal law “where no

Supreme Court precedent is on point.”). Accordingly, Brown is not entitled to

federal habeas relief.

Moreover, although the United States Supreme Court has not spoken on

this issue, the Eleventh Circuit has long held that “there is a distinction

between modifications of sentences and proceedings that impose a new

sentence after vacation of the original sentence.” United States v. Taylor, 11

F.3d 149, 152 (11th Cir. 1994). “In the former instance, the defendant's

presence is not required, but in the latter, the defendant has a right to be

present[.]” Id.; see also United States v. Jackson, 923 F.2d 1494, 1497 (11th

Cir. 1991) (“In constitutional terms, a remedial sentence reduction is not a

critical stage of the proceedings; so, the defendant's presence is not required.”).

Likewise, in Florida, where the resentencing is ministerial and a court has no

discretion in imposing sentence, the defendant’s presence is not required.

Jordan v. State, 143 So. 3d 335, 338-39 (Fla. 2014). Here, the granting of

Brown’s motion to correct did not result in the vacating of his original sentence

nor did it change the duration of his sentence. Instead, it merely removed a

provision giving the state court jurisdiction over half of his sentence to review

orders from the Parole Board. Accordingly, neither under Eleventh Circuit nor

Florida precedent was Brown entitled to be present with counsel when the

state court modified his sentence. In light of the above analysis, Brown is not

entitled to federal habeas relief and the Amended Petition is due to be denied.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Brown seeks issuance of a certificate of appealability, the undersigned

opines that a certificate of appealability is not warranted. The Court should

issue a certificate of appealability only if the petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make

this substantial showing, Brown “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims

debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further,’” Miller-El v. Cockrell,

537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 17) is DENIED, and this action is

DISMISSED WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Amended

Petition and dismissing this case with prejudice.

3. If Brown appeals the denial of the Amended Petition, the Court

denies a certificate of appealability. Because the Court has determined that a

certificate of appealability is not warranted, the Clerk shall terminate from the

pending motions report any motion to proceed on appeal as a pauper that may

be filed in this case. Such termination shall serve as a denial of the motion.

4. The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 27th day of April,

2021.

United States District Judge

Jax-8

C: Ulysses Brown #089244

Counsel of record

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