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

> District Court, M.D. Florida · August 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10110793

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110793. Public record. Not legal advice.