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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

THOMAS BENJAMIN BROWN,

Petitioner,

v. Case No. 3:19-cv-808-TJC-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding on a pro

se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1). In 2002,

in Duval County, Florida, Petitioner pled guilty to sexual battery and was

sentenced to 7 years imprisonment to be followed by 5 years of sex offender

probation. However, in 2013, while on probation, Petitioner pled guilty to a

violation of probation and was sentenced to 25 years imprisonment to be

followed by 5 years of sex offender probation. He now challenges the 2013

judgment.

Respondents filed a Response (Doc. 5) with exhibits (Docs. 5-1 to 5-3;

Resp. Ex.). Petitioner filed a Reply (Doc. 10). This case is ripe for review.1

II. Governing Legal Principles

A. Standard of Review

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

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

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

ne2016). “‘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)).

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

decision, if any, that adjudicated the petitioner’s claims 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 an opinion explaining its rationale for the state court’s

1 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

(11th Cir. 2016) (citing 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, 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. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

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 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. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Richter, 562 U.S. at 101 (internal quotation

marks omitted). “It bears repeating that even a strong

case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. [at 102] (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (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 (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 (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) (internal

citations modified).

B. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington,

466 U.S. 668, 687 (1984)). Courts employ a two-part test when reviewing

ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687.

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” 466 U.S. at 688. A court considering

a claim of ineffective assistance must apply a “strong

presumption” that counsel’s representation was

within the “wide range” of reasonable professional

assistance. Id. at 689. The challenger’s burden is to

show “that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. It is not enough

“to show that the errors had some conceivable effect on

the outcome of the proceeding.” Id. at 693. Counsel’s

errors must be “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id. at

687.

Richter, 562 U.S. at 104 (internal citations modified).

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward, 592 F.3d at 1163. Both prongs of the

two-part Strickland test must be satisfied to show a Sixth Amendment

violation; thus, “a court need not address the performance prong if the

petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing Holladay

v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is afforded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, 562 U.S. at 105. But

“[e]stablishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the

more difficult. The standards created by Strickland

and § 2254(d) are both highly deferential, and when

the two apply in tandem, review is doubly so.” Id.

(citations and quotation marks omitted). “The

question is not whether a federal court believes the

state court’s determination under the Strickland

standard was incorrect but whether that

determination was unreasonable - a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123 (2009) (quotation marks omitted). If there is

“any reasonable argument that counsel satisfied

Strickland’s deferential standard,” then a federal

court may not disturb a state-court decision denying

the claim. Richter, 562 U.S. at 105.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (internal

citations modified). In other words, “[i]n addition to the deference to counsel’s

performance mandated by Strickland, the AEDPA adds another layer of

deference--this one to a state court’s decision--when we are considering whether

to grant federal habeas relief from a state court’s decision.” Rutherford v.

Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010).

III. Procedural History

Petitioner was arrested on May 8, 2002, and charged by amended

information with armed burglary with assault or battery and sexual battery.

Resp. Ex. A 1-6, 9-10. Pursuant to a negotiated plea agreement, Petitioner pled

guilty to sexual battery and was sentenced to a term of imprisonment of 7 years

to be followed by 5 years of sex offender probation. Id. at 11-18.

On January 19, 2009, Petitioner was released from the custody of the

Florida Department of Corrections and was sent to the Florida Civil

Commitment Center (FCCC). While there, he was charged with new criminal

offenses. Thus, a probation officer filed affidavits of violation of probation, and

on March 5, 2013, Petitioner was arrested pursuant to a warrant for the

violation. See id. at 27-81.

On August 1, 2013, Petitioner admitted to the violation of probation

through a written admission and orally in court. See id. at 84, 140-45. During

the hearing, Petitioner acknowledged under oath that he signed the admission

form after reviewing it with his attorney, who advised him and answered all of

his questions. Id. at 143. He also acknowledged that he was admitting the

violation, no one had pressured or forced him to do so, and no one promised him

anything in exchange for his admission. Id.

Before his sentencing hearing, his counsel filed a motion for a downward

departure in sentence, asking the court to reinstate a probationary sentence or

sentence him to 10 years imprisonment with credit for the 7 years he already

served. Id. at 85-87. The state filed a sentencing memorandum requesting that

the court sentence Petitioner to a 30-year term of imprisonment. Id. at 90-92.

On September 12, 2013, the state court sentenced him to 25 years imprisonment

to be followed by 5 years of probation. Id. at 146-73; see id. at 104-09

(Judgment); see also Resp. Ex. F (Corrected Judgment – re-recorded in 2014 to

correct the count numbers).

On September 25, 2013, Petitioner filed a pro se motion to withdraw his

plea, Resp. Ex. A at 120-23, which the state court denied, Resp. Ex. B at 7-12.

Petitioner, through counsel, filed a notice of appeal. See Resp. Ex. A at 125. The

First District Court of Appeal entered a per curiam affirmance on October 3,

2014, without issuing a written opinion. See Resp. Ex. E.

On December 1, 2014 (mailbox rule), Petitioner filed a pro se motion for

reduction or modification of sentence. Resp. Ex. F. A review of the state court

docket reflects that this motion was never ruled on. On August 14, 2015

(mailbox rule), and August July 22, 2016 (mailbox rule), Petitioner filed a

motion and amended motion under Florida Rule of Criminal Procedure 3.850.

See Resp. Ex. G at 1-14, 19-39. By order dated January 8, 2018, the state court

denied Petitioner’s Rule 3.850 motions. Resp. Ex. G at 45-65. Petitioner

appealed, id. at 66, and the First DCA per curiam affirmed the denial of his

Rule 3.850 motions without issuing a written opinion, Resp. Ex. H. Petitioner

filed a request for a written opinion, Resp. Ex. I, which the First DCA granted,

Resp. Ex. J. On February 15, 2019, the First DCA issued a written opinion

affirming the denial of Petitioner’s Rule 3.850 motions. Resp. Ex. K; see also

Brown v. State, 264 So. 3d 1097, 1098-99 (Fla. 1st DCA 2019). Petitioner then

filed the instant Petition.

IV. Analysis

A. Ground One

Petitioner titled this ground “Ineffective Counsel” and states: “Attorney

failed to challenge the validity of the probation. Attorney failed to preserve

double jeopardy issue. Attorney persuaded defendant to plea open. State offered

ten years. Attorney insisted the Judge would deliver a lesser sentence or at the

most defendant would get no more than 10 years.” Doc. 1 at 5. Petitioner

indicates that he raised these arguments on direct appeal and in his state court

postconviction proceeding under Rule 3.850. Id. at 6.2

After his sentencing, Petitioner filed a pro se motion to withdraw his plea,

in which he argued that his counsel was ineffective for advising him to enter a

2 Petitioner did not argue that the state offered him a ten-year plea deal in any of his

state court filings. Nor does he expound upon such argument in his Petition. Insofar

as he attempts to raise an ineffective assistance of counsel claim based on the state’s

alleged ten-year plea deal, such a claim is unexhausted and procedurally barred.

Petitioner has not shown cause or prejudice to excuse the bar, nor has he shown a

fundamental miscarriage of justice would result if such a claim is not resolved on the

merits. See Ward v. Hall, 592 F.3d 1144, 1156-57 (11th Cir. 2010).

plea and assuring him the court would sentence him to 10 years; for failing to

challenge or object to the point sheet for sentencing; and for failing to establish

that Petitioner suffered from a mental abnormality that precluded him from

understanding the severity of his legal situation. Resp. Ex. A at 120-22.

Petitioner also argued that his original probation should not have started

because he was still in “custody” when he was in the FCCC, and his counsel was

ineffective for failing to raise this issue. Id. at 122-23; see Doc. 10 at 7 (“Brown

is challenging the court ordered probation being active while at FCCC.”). On

January 15, 2014, the state court denied the motion, reasoning in pertinent

part:

First, as to Defendant’s sub-claims that trial

counsel coerced him to plea and that counsel promised

Defendant he would only receive a sentence not

exceeding ten years, the following exchange between

Defendant and the trial court occurred:

THE COURT: I have in my hand

the admission of violation of probation

pink form with your full name at the top

and what purports to be your full

signature here at the bottom. Is that, in

fact, your full signature?

MR. BROWN: Yes, sir.

THE COURT: And by signing this

document you’re indicating to the Court

that you’ve had the opportunity to review

the contents of this document, including

your legal rights, you’ve discussed it with

Ms. Hickson, your lawyer, and she

advised you and answered all of your

questions to your complete satisfaction?

MR. BROWN: Yes, sir.

THE COURT: And by signing this

document you’re admitting that you

violated your probation, no one has

pressured you or forced you into this

admission, and no one has promised you

anything to get you to enter into this

admission; is that correct?

MR. BROWN: Yes, sir.

(Ex. “I” at 4.) A defendant may not seek to go behind

his sworn testimony at a plea hearing in a

postconviction motion. Stano v. State, 520 So. 2d 278,

280 (Fla. 1988); Bir v. State, 493 So. 2d 55, 56 (Fla. 1st

DCA 1986). Based on his sworn testimony during the

plea colloquy, which refutes his allegations of coercion,

Defendant is not entitled to withdraw his plea. See

Johnson, 22 So. 3d at 844; Nelson, 18 So. 3d at 1190.

Additionally, at the time of the entry of his plea,

Defendant signed an Admission of Violation of

Probation/Community Control and Negotiated

Sentence form (“Admission Form”), which contains the

following provisions:

4. I understand the charge which has

been placed against me and to which I am

pleading. My lawyer has explained the

maximum penalty to me, as well as the

nature of the violation alleged and any

defenses I may have. I am fully satisfied

with my lawyer’s advice and help.

5. “No One has pressured me or forced me

to enter this Admission. No one has

promised me anything to get me to enter

this Admission ....”

10. I have read every word in this written

plea and have discussed it with my

lawyer. I understand this form fully ....

(Ex. “G.”) By this Admission Form, acknowledged in

open court at the time of the entry of his plea,

Defendant provided this written testimony to the trial

court. See Stano, 520 So. 2d at 280; Bir, 493 So. 2d at

56. His claims to the contrary, now asserted in hopes of

withdrawing his plea, are refuted by the record and not

properly considered by this Court. Johnson, 22 So. 3d

at 844.

In Defendant’s second sub-claim within Ground

One, Defendant contends that trial counsel was

ineffective for failing to object to the accuracy of the

sentencing scoresheet, which was allegedly “erroneous

and misleading.” In Defendant’s third sub-claim within

Ground One, Defendant opines that counsel was

ineffective for failing to conduct a mental evaluation on

Defendant due to his “mental abnormality.” This Court

notes that in both of these claims, Defendant fails to

allege how the voluntariness of his plea was affected by

these alleged failures by counsel. Instead, Defendant

seems to be attacking his sentence, which is distinct

from the nature of his plea. Moreover, the record

refutes Defendant’s claim of ineffectiveness as

Defendant’s Admission Form states he was “fully

satisfied with [his] lawyer’s advice and help.” (Ex. “O.”)

Therefore, Ground One is denied.

. . . .

In Ground Two, Defendant alleges that his

violation of probation conviction was illegal because he

was still incarcerated when the alleged violation

occurred. Defendant contends that his initial judgment

and sentence Order states that “[i]n the even[t] the

defendant is ordered to serve additional split

sentences, all incarceration portions shall be satisfied

before the defendant begins service of the supervision

terms.” (Def.’s Mot. 3.) Defendant argues that he was

in constant custody until January 19, 2009, thus his

probation term never began. Defendant claims that

counsel was ineffective for failing to bring this issue to

the court’s attention.

Initially, this Court notes that this claim does not

fall into one of the appealable issues designated by

Florida Rule of Appellate Procedure

9.140(b)(2)(A)(ii)(a)-(e). Nor is Defendant alleging that

he would not have pled guilty to Violation of Probation

had defense counsel brought this issue to the court’s

attention. However, even if Defendant had stated his

plea was involuntary due to this issue, and even if the

facts as Defendant alleges are true, this Court finds

that the record refutes Defendant’s claims. According

to the first Violation of Probation Affidavit and Report,

Defendant’s first alleged violation was based off of a

capias dated November 13, 2009. (Ex “D.”) Thus, this

violation occurred over nine months after Defendant’s

release date of January 19, 2009.

Further, at Defendant’s sentencing hearing,

Defendant testified that when he was released from the

Department of Corrections on January 19, 2009, he was

sent to the [FCCC] where his ordered probation began

upon his arrival. (Ex. “J” at 7.) All of Defendant’s

Violation of Probation Affidavits and Reports contain

alleged violations that occurred after January 19, 2009

and Defendant has failed to show how counsel was

ineffective for failing to argue to the court otherwise.

(Ex. “D,” “E,” “F.”) Moreover, pursuant to Defendant’s

Admission Form, Defendant agreed to the following

provision:

2. I understand that if the Court

accepts this plea, I give up my right to an

evidentiary hearing, the right to require

the State to prove the violation, the right

to have the Judge decide whether I

violated my probation/community

control, the right to see and hear the

witnesses against me and to have my

lawyer question them, the right to

subpoena and present witnesses or other

evidence or any defenses I may have, and

to testify or remain silent as I choose. I

further understand that I give up my

right to appeal the facts of the case. My

lawyer has explained to me what an

appeal is.

(Ex. “G.”) Therefore, Ground Two is denied.

Resp. Ex. B at 9-12. Petitioner, through counsel, filed a notice of appeal. See

Resp. Ex. A at 125. Petitioner filed a counseled initial brief, arguing that “the

trial judge abused his discretion in denying [Petitioner’s] motion to withdraw

his plea after sentencing without a hearing.” Resp. Ex. C at 8 (capitalization

and emphasis omitted). The state filed an answer brief. See Resp. Ex. D. The

First DCA entered a per curiam affirmance on October 3, 2014, without issuing

a written opinion. See Resp. Ex. E.

Petitioner also raised similar claims in his Rule 3.850 proceeding. The

state court denied the claims, finding in pertinent part:

In Ground One, Defendant avers the trial court

lacked subject matter jurisdiction and, thus, could not

revoke Defendant’s probation. Specifically, Defendant

avers that he was illegally committed to the [FCCC] in

2009 without violating his probation, thus improperly

enhancing the sex offender probation to a residential

program after sentencing.

In Ground Two, Defendant contends his

conviction violates double jeopardy principles.

Defendant states that after he was sentenced in 2002,

there was no provision imposing residential sex

offender treatment at the [FCCC]. Defendant suggests

that it, thus, violated double jeopardy to commit him to

the [FCCC] after serving his prison term rather than

allowing him to live free on non-residential sex offender

probation.

In Ground Three, Defendant suggests counsel

was ineffective for failing to advise Defendant of the

collateral consequences of his plea or challenge the

illegality of Defendant’s sex offender probation.

All three Grounds center around Defendant’s

belief that his probation was changed from non-

residential to residential probation after he entered his

plea agreement and the trial court sentenced him.

However, this is not an accurate position. Civil

commitment under Jimmy Ryce is a separate

proceeding which does not violate double jeopardy

principles or violate previously entered plea

agreements that did not discuss such proceedings. See

Westerheide v. State, 831 So. 2d 93, 98-105 (Fla. 2002);

State v. Harris, 881 So. 2d 1079, 1082-84 (Fla. 2004).

For those reasons, counsel cannot be ineffective for

failing to advise Defendant otherwise. Accordingly,

Defendant is not entitled to relief on these Grounds.

Resp. Ex. G at 45-65. Petitioner appealed, id. at 66, and the First DCA per

curiam affirmed the denial of his Rule 3.850 motions without issuing a written

opinion, Resp. Ex. H. Petitioner filed a request for a written opinion, Resp. Ex.

I, which the First DCA granted, Resp. Ex. J. On February 15, 2019, the First

DCA issued the following opinion affirming the denial of Petitioner’s Rule 3.850

motions:

In 2002, following a negotiated plea, Brown was

convicted of sexual battery and sentenced to seven

years in prison, to be followed by five years on sex

offender probation. In 2013, he admitted violating his

probation and was sentenced to twenty-five years in

prison, to be followed by five years on probation, which

this Court affirmed in a prior appeal. Brown now files

the instant appeal after raising three claims in a

postconviction motion.

All claims raised by Brown relate to the fact that

when he was released from prison in 2009 to start his

probation, he was transferred to the [FCCC], a secure

facility under the jurisdiction of the Department of

Children and Families. He alleges he never agreed to

that “enhancement” of his probationary sentence. In

ground one, he alleges the trial court lacked

jurisdiction to revoke his probation because his

placement in the secure Civil Commitment Center was

illegal. In ground two, he argues his placement in the

civil commitment center violated his double jeopardy

rights because it constitutes an “enhancement” of his

probationary term after it was imposed. In ground

three, Brown alleges counsel was ineffective for failing

to raise those issues and for allowing him to enter a

plea to violating his probation when his probation had

not yet begun (as he remained confined).

The supreme court has held that involuntary

commitment for sexual predators is a civil

commitment, not a punishment. See State v. Harris,

881 So. 2d 1079, 1083 (Fla. 2004). As such, a plea

agreement for incarceration followed by probation is

not violated when a defendant is civilly committed after

his release from incarceration. Id. The supreme court

specifically rejected the argument raised by Brown that

by civilly committing him, the State was adding a term

to probation (i.e., requiring him to complete

“residential” sex offender treatment). Id. Additionally,

because the involuntary commitment of sexual

predators is a civil proceeding, not a criminal sentence

or punishment, the appellant’s civil commitment does

not violate double jeopardy as it does not represent an

improper increase in his sentence after it has been

imposed. See Westerheide v. State, 831 So. 2d 93, 99-

104 (Fla. 2002). Finally, contrary to his assertions,

Brown was on probation while in the secure facility.

This Court has noted, “a period of probation shall

commence immediately upon the release of the

defendant from incarceration.” Walker v. State, 604 So.

2d 913, 914 (Fla. 1st DCA 1992) (internal quotation and

citation omitted). Because the civil commitment is not

a sentence or incarceration, his probation started

immediately upon the expiration of his seven-year

incarcerative sentence and his transfer to the civil

commitment facility.

The conclusion that probation starts as soon as a

defendant is released to a civil commitment is further

supported by section 948.012(6), Florida Statutes. In

2014, the subsection was amended to indicate

probation or supervision was to be tolled while a

defendant was civilly committed. That section is

effective for defendants whose “sentences of probation

or community control begin[s] on or after October 1,

2014.” § 947-012(6), Fla. Stat. (2014). Here, Brown

began his probation in 2009. Thus, prior to 2014,

defendants were on probation as soon as they were

released to civil commitment under the jurisdiction of

the Department of Children and Families. Accordingly,

the trial court had jurisdiction to revoke his probation.

Resp. Ex. K; see also Brown v. State, 264 So. 3d 1097, 1098-99 (Fla. 1st DCA

2019).

This Court addresses Petitioner’s claims in accordance with the

deferential standard for federal court review of state court adjudications. Upon

thorough review of the record, this Court concludes that the state court’s

adjudications of these claims were not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal

law, and were not based on an unreasonable determination of the facts in light

of the evidence presented. Accordingly, Petitioner is not entitled to federal

habeas relief on Ground One.

B. Ground Two

According to Petitioner, the “trial court lacked jurisdiction to revoke

probation.” Doc. 1 at 7. He argues that “[b]efore probation can be enhanced

either by extension of the time or by additional terms a violation of probation

must be formally charged.” Id. He asserts that the terms of his probation were

“made more stringent by placing him in a civil commitment center” when “[t]he

original probation terms did not stipulate in house treatment.” Id. Petitioner

indicates that he raised this claim in his Rule 3.850 proceeding. Id.

As stated in Ground One, supra, Petitioner raised this claim in his Rule

3.850 proceeding, and the state court denied it. Petitioner appealed, and the

First DCA per curiam affirmed the denial in its written opinion, specifically

finding that “the trial court had jurisdiction to revoke [Petitioner’s] probation.”

Resp. Ex. K at 3.

This Court addresses Petitioner’s claims in accordance with the

deferential standard for federal court review of state court adjudications. Upon

thorough review of the record, this Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of the

evidence presented. Accordingly, Petitioner is not entitled to federal habeas

relief on this claim.

C. Ground Three

Petitioner argues that his “conviction [was] obtained by a violation of the

Double Jeopardy Clause.” Doc. 1 at 8; see Doc. 10 at 9 (“In the event it could be

said Brown was on active probation while in the custody of DCFS, that would

violate the double jeopardy clause because of the change in probation terms.”).

He argues:

Florida Statutes 1995 defines probation as community

supervision. The probation was to be administered by

the Department of Corrections. Florida Statutes

specifically states that those committed under the Ryce

Act shall be under sole control, care and treatment of

Children Family and Services. A clear illegal

enhancement. Probation should not have began until

the civil matter was resolved.

Doc. 1 at 8. He indicates that he raised this claim in his Rule 3.850 proceeding.

Id. at 9.

As set forth in Ground One, supra, the First DCA specifically rejected this

claim, finding that double jeopardy is not implicated when a defendant is civilly

committed after his release from incarceration and that the civil commitment

does not add a term to the defendant’s probation. Resp. Ex. K. Indeed, the First

DCA reasoned that because the involuntary commitment is civil in nature

rather than punitive, Petitioner’s “civil commitment does not violate double

jeopardy as it does not represent an improper increase in his sentence after it

has been imposed.” Id. at 2.

This Court addresses Petitioner’s claims in accordance with the

deferential standard for federal court review of state court adjudications. Upon

thorough review of the record, this Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of the

evidence presented. Accordingly, Petitioner is not entitled to federal habeas

relief on this claim.

D. Ground Four

Petitioner argues that his counsel was ineffective because “counsel was

not knowledgeable about the civil commitment that overlapped the alleged

violation of probation. Counsel willingly participated in an illusory plea which

was unconstitutional due to a double jeopardy violation.” Doc. 1 at 10. He

indicates that he raised this claim in his Rule 3.850 proceeding. Id.

As noted in Ground One, supra, the First DCA found that Petitioner’s

civil commitment did not violate double jeopardy and his probation began when

he was released from incarceration. See Resp. Ex. K. Counsel cannot be

considered deficient for failing to raise a meritless issue. See Freeman v. Att’y

Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be deficient for

failing to raise a meritless claim.”).

This Court addresses Petitioner’s claims in accordance with the

deferential standard for federal court review of state court adjudications. Thus,

upon thorough review of the record, this Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of the

evidence presented. Accordingly, Petitioner is not entitled to federal habeas

relief on this claim.

Accordingly, it is

ORDERED:

1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED

WITH PREJUDICE.

2. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

3. If Petitioner appeals, 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.?

DONE AND ORDERED at Jacksonville, Florida, this day of

August, 2022.

. Cimetbeg 9. Corrig on

WW. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 8/22

C:

Thomas Benjamin Brown, #J22760

Counsel of Record

3 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, Petitioner “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)). Here, after consideration

of the record as a whole, the Court will deny a certificate of appealability.

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