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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JAMES HARMON III,

Petitioner,

v. Case No. 3:19-cv-1080-MMH-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner James Harmon III, an inmate of the Florida penal system,

initiated this action on September 27, 2019,1 by filing a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 In the Petition,

Harmon challenges his 2017 state court (Duval County) sentence of life

imprisonment. He raises two claims. See Petition at 5-7. Respondents have

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

Response to Order to Show Cause (Response; Doc. 8). They also submitted

exhibits. See Docs. 8-1 through 8-23. Harmon filed a brief in reply. See Reply

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

2 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

(Doc. 9). He also submitted exhibits. See Docs. 9-1 through 9-16. This action

is ripe for review.

II. Relevant Procedural History

The state court described the nature and circumstances of the criminal

offenses involving Harmon, stating in pertinent part:

It all began as a plan to get money, but

ultimately turned into a week-long crime spree that

terrorized the Riverside community in Jacksonville.

Defendant and his co-defendant kidnapped and robbed

four different individuals over that week in January

1981. Defendant and the co-defendant drove each

victim around Jacksonville, taunting the victims with

threats of violence while robbing them, showing a

wanton disregard for the terror they instilled in each

victim of their impending demise. They attempted to

murder all four victims[] but were only successful in

their plans as to Mr. Langston and Mr. Kennedy. Mr.

Chadwick escaped with a wound to his knee, leaving

only Mr. Burge physically unharmed.

Docs. 8-1 at 159; 9-9 at 12 (record citations omitted). The United States Court

of Appeals for the Eleventh Circuit provided a brief procedural history, stating

in pertinent part:

In 1981, Harmon, who was then 17 years old, pleaded

guilty to two counts of second degree murder, one

count of armed robbery, and one count of

kidnapping.[3] In a separate case, he was convicted by

a jury of one count of armed robbery and one count of

3 Duval County Case Nos. 81-CF-984 (armed robbery and kidnapping; victim

Robert Chadwick, Jr.), 81-CF-986 (second degree murder; victim Raymond Kennedy),

and 81-CF-987 (second degree murder; victim Clarence Langston, Jr.).

kidnapping.[4] In total, Harmon was adjudicated

guilty of committing six felonies, each “punishable by

imprisonment for a term of years not exceeding life

imprisonment” pursuant to Sections 782.04(2),

787.01(2), and 812.13(2)(a), Fla. Stat. (1981). When

the pleas were taken, the court advised Harmon that

the maximum sentence on each count was life

imprisonment, but that there was no plea agreement

as to the sentence. Instead of life sentences, the court

imposed six consecutive terms of one hundred years

each and retained jurisdiction to deny him parole

during the first one-third of the total sentence, or for

two hundred years. Harmon’s attorney objected that

the court could not legally retain jurisdiction over a

period greater than Harmon’s actual lifetime, but did

not move to withdraw the guilty pleas.

Harmon appealed, arguing that the court erred in

sentencing him to six hundred years and retaining

jurisdiction for two hundred years because the

sentence exceeded the statutory maximum. Harmon

requested correction of the sentences, but did not

request withdrawal of the pleas. The appellate court

affirmed and certified the following issue to the

Florida Supreme Court: “[W]hether a sentencing

court, authorized to impose for each of six felonies a

term of years not exceeding life imprisonment, may

impose six consecutive 100-year terms and retain

jurisdiction for one-third of each sentence, aggregating

200 years, to review any parole release order of the

Parole Commission.” The Florida Supreme Court

accepted jurisdiction, answered the question

affirmatively, and upheld the convictions and

sentences. Harmon v. State, 438 So. 2d 369 (Fla. 1983).

Harmon v. Barton, 894 F.2d 1268, 1269 (11th Cir. 1990) (footnotes omitted).

4 Duval County Case No. 81-CF-985 (armed robbery and kidnapping; victim

Herman Burge).

On July 19, 2016, Harmon filed a pro se motion to correct illegal sentence

pursuant to Florida Rule of Criminal Procedure 3.800 in Case Nos. 984 and

985. Docs. 8-1 at 24-26; 8-6 at 22-24. In the Rule 3.800 motion, he asserted that

he was entitled to resentencing for the non-homicide offenses under Graham

v. Florida, 560 U.S. 48 (2010), Florida’s 2014 juvenile sentencing legislation,

and Henry v. State, 175 So. 3d 675 (Fla. 2015). That same day, he filed a motion

for postconviction relief in Case Nos. 986 and 987. Docs. 8-11 at 201-03; 8-12

at 1-12; 8-18 at 57-71. In the postconviction motion, Harmon asserted that his

sentences violated the Eighth Amendment and the dictates in Miller v.

Alabama, 567 U.S. 460 (2012), and Atwell v. State, 197 So. 3d 1040 (Fla. 2016).

The State conceded that Harmon was entitled to resentencing on both counts

of second degree murder. Docs. 8-12 at 39; 8-18 at 92. On February 15, 2017,

the court granted Harmon’s motions and appointed counsel to represent him.

Docs. 8-1 at 27-39; 8-6 at 51-61; 8-12 at 43-52; 8-18 at 96-106. Harmon filed a

motion for a Faretta5 inquiry and leave to proceed pro se on July 11, 2017. Doc.

8-1 at 52. After a hearing advising Harmon of the disadvantages of

representing himself, the court granted his motion, found that Harmon

knowingly and intelligently waived his right to court-appointed counsel, and

relieved Harmon’s counsel from further representation, effective July 20, 2017.

5 Faretta v. California, 422 U.S. 806 (1975).

Id. at 60-63.

On October 26, 2017, the court held a resentencing hearing, Docs. 8-4 at

148-206; 8-5 at 1-33, at which Harmon appeared pro se and testified, Doc. 8-5

at 2-5. On December 6, 2017, the court stated in pertinent part:

All right. Mr. Harmon, I’ve given much thought

to your cases and to you as to what is the appropriate

thing to do since this case came to my attention, and

certainly since October when we had a sentencing

hearing. Instead of going through all the reasons and

findings that I made to the sentence that I’m going to

impose, I’m not going to do that, they were written in

a sentencing order[6] that I’m going to give a copy of to

you, the bailiff has that for you now, hopefully it will

set out with clarity, that was my intent, to explain why

I’m doing what I’m doing. There[] [are] many

attachments to that order to back up the findings.

So, pursuant to those findings as to the six

counts in the four different cases, I’m going to sentence

you to life in prison, give you credit for all the time that

you’ve served, including the jail time…. These

sentences are to run concurrently with one [an]other.

As to case numbers ending in 986 and 987, the

homicide cases, I’m going to let you know that you

have a chance to have the sentence reviewed after 25

years.

As to the cases ending in 984 and 985 [(the non-

homicide cases)], you’re entitled to a 20 year review.

Doc. 8-5 at 36-37.

6 Docs. 8-1 at 149-70; 9-9.

On December 12, 2017, Harmon filed a pro se motion to correct

sentencing error pursuant to Florida Rule of Criminal Procedure 3.800. Doc. 8-

3 at 208-19. In the motion, he asked for an immediate “sentence review

hearing” and asserted that the trial court was biased and vindictive when it

sentenced him to life imprisonment, violated Eighth Amendment and ex post

facto principles, overlooked rehabilitative evidence provided by Dr. Gregory

Prichard, and denied him a meaningful opportunity for early release. Id. The

court denied the motion on December 21, 2017. Docs. 8-3 at 220-34; 8-4 at 1-

64; 9-11.

On appeal to the First District Court of Appeal (First DCA), Harmon,

with the benefit of counsel, argued that the trial court erred when it: (1) found

that the primary purpose of sentencing is to punish a juvenile offender; (2)

imposed a life sentence; and (3) denied Harmon’s pro se motion to correct

sentencing error. Docs. 8-5 at 64 (First DCA Case No. 1D18-0111); 8-10 at 292

(1D18-0112); 8-17 at 103 (1D18-0113); 8-23 at 207 (1D18-0114). The State filed

answer briefs, Docs. 8-5 at 108; 8-10 at 336; 8-17 at 147; 8-23 at 251, and

Harmon filed reply briefs, Docs. 8-5 at 143; 8-10 at 369; 8-17 at 180; 8-23 at

284. The First DCA affirmed on August 30, 2019, Doc. 8-5 at 162, denied

Harmon’s motion for rehearing, id. at 171, and issued a mandate in each case

on March 9, 2020, Docs. 8-5 at 173; 8-11 at 5; 8-17 at 210; 8-23 at 314.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

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,

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). “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 [Harmon’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. 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). “‘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.’”[7] 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); see Teasley v.

Warden, Macon State Prison, 978 F.3d 1349, 1356 n.1 (11th Cir. 2020). 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”).

7 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).

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.

Richter, 562 U.S. at 102. A district court’s obligation is “to train its attention”

on the legal and factual basis for the state court’s ruling, not to “flyspeck the

state court order or grade it.” Meders v. Warden, Ga. Diagnostic Prison, 911

F.3d 1335, 1349 (11th Cir. 2019) (citing Wilson, 138 S. Ct. at 1191-92). Thus,

to the extent that a petitioner’s claims were adjudicated on the merits in the

state courts, they must be evaluated under 28 U.S.C. § 2254(d).

VI. Findings of Fact and Conclusions of Law

As ground one, Harmon asserts that his “sentences of life without parole,

as applied” to him as a “former juvenile,” violate the Ex Post Facto Clause.

Petition at 5. As ground two, he states that the life sentences violate his Eighth

Amendment right to be free from cruel and unusual punishment. Id. at 7.

According to Harmon, when he asked the state court to resentence him “under

the new juvenile laws,” the court resentenced him to six concurrent life

sentences. Id. at 5, 7. Respondents argue that Harmon did not properly exhaust

his claim in ground two in the state courts, and therefore the claim is

procedurally barred. Response at 14-17. Harmon did sufficiently exhaust the

claims (under grounds one and two) in his December 12, 2017 motion to correct

sentencing error. Doc. 8-3 at 208-19. The state court ultimately denied the

motion with respect to the claims, stating in pertinent part:

On October 26, 2017, this Court held a

resentencing hearing at which Defendant appeared

pro se and testified on his own behalf. Sheila Loizos

represented the State and presented the following

witnesses: (1) Michael Obringer (former Assistant

State Attorney); (2) Laura Tully (Florida Commission

on Offender Review); (3) Beverley Jackson-Severance

(Defendant’s sister); (4) Cheryl Bryan (family member

of [the victim] Mr. Langston); (5) Carter Byrd Bryan

(family member of Mr. Langston); and (6) Julie Smith

(family member of Mr. Langston). On December 6,

2017, this Court resentenced Defendant and entered a

sentencing Order that same day. (Exs. F, G.)[8]

In the instant Motion, Defendant raises

numerous claims attacking the sentences imposed by

this Court on December 6, 2017. Specifically,

Defendant alleges his sentences (1) are

unconstitutional under the Eighth Amendment; (2)

violate ex post facto principles; (3) violate

proportionality principles; and (4) demonstrate

judicial vindictiveness. Defendant further maintains

this Court denied him the appropriate review under

[section] 921.1402(2), Florida Statutes.

Constitutionality of Defendant’s Life Sentences

In Graham, the Court held that for a juvenile

who committed a non-homicide offense, the Eighth

8 Docs. 8-4 at 15-35, Sentencing Order; 36-59, Judgment.

Amendment forbids the sentence of life without parole

unless the State allows the juvenile a meaningful

opportunity for release. Graham, 560 U.S. at 82. The

Florida Supreme Court interpreted Graham to ensure

“juvenile non-homicide offenders will not be sentenced

to terms of imprisonment without affording them a

meaningful opportunity for early release based on a

demonstration of maturity and rehabilitation.” Henry,

175 So. 3d at 680.

The [United States] Supreme Court later

followed with its decision in Miller, holding that for

homicide offenses, “mandatory life-without-parole

sentences for juveniles” violate the Eighth

Amendment’s prohibition against cruel and unusual

punishment. Miller, 567 U.S. at 470. The Court ruled

that the trial court must “follow a ‘certain process –

considering an offender’s youth and attendant

characteristics – before imposing a particular penalty,’

emphasizing that ‘youth matters for purposes of

meting out the law’s most serious punishment.’”

Washington v. State, 103 So. 3d 917, 919 (Fla. 1st DCA

2012) (quoting Miller, 567 U.S. at 483). To sentence a

juvenile offender, the trial court must “take into

account how children are different, and how those

differences counsel against irrevocably sentencing

them to a lifetime in prison.” Miller, 567 U.S. at 470.

Notably, the Supreme Court did not foreclose a court’s

ability to sentence a juvenile to life in prison without

the possibility of parole in homicide cases. Id. at 480.

The Florida Legislature enacted chapter 2014-

220 of the Laws of Florida, designed to bring Florida’s

juvenile sentencing statutes into compliance with the

United States Supreme Court’s Eighth Amendment

juvenile sentencing jurisprudence. Horsley v. State,

160 So. 3d 393, 395 (Fla. 2015). This statute does not

foreclose the possibility of sentencing a juvenile to life

in prison for homicide and non-homicide offenses, so

long as the juvenile receives a review mechanism

within his or her sentence. § 775.082(3)(a), (b), (c), Fla.

Stat.

According to Rule 3.781(b),[9] a court must allow

the defendant and the State “to present evidence

relevant to the offense, the defendant’s youth, and

attendant circumstances, including, but not limited to

those factors enumerated in section 921.1401(2),

Florida Statutes.” Furthermore, the court is required

to allow the defendant and the State “to present

evidence relevant to whether or not the defendant

killed, intended to kill, or attempted to kill the victim.”

Fla. R. Crim. P. 3.781(b). The amended statutes now

also provide a sentence review mechanism for

juveniles sentenced to substantial prison terms. See §

921.1402, Fla. Stat. (2014).

On October 2[6], 2017, this Court held a

sentencing hearing in the above-captioned cases and

allowed both Defendant and the State to present

evidence related to the factors enumerated within

section 921.1401(2), Florida Statutes. This Court

considered the information presented during that

hearing and wrote a sentencing Order to support the

sentences it imposed on December 6, 2017. (Ex. F.)

This Court’s sentences comply with the new juvenile

sentencing laws and are, therefore, constitutional. See

§§ 775.082(3)(b)2a, (c), 921.1401(2)(a)-(j), Fla. Stat.

(2017); see also Graham, 560 U.S. at 82 (“The State

need not guarantee the offender eventual release, but

if it imposes a sentence of life it must provide him or

her with some realistic opportunity to obtain release

before the end of that term.”); Miller, 567 U.S. at 480

(“Although we do not foreclose a sentencer’s ability to

[impose a life sentence] in homicide cases, we require

it to take into account how children are different, and

how those differences counsel against irrevocably

9 Florida Rule of Criminal Procedure 3.781, “Sentencing Hearing to Consider

the Imposition of a Life Sentence for Juvenile Offenders.”

sentencing them to a lifetime in prison.”). Defendant

is not entitled to relief.

Ex Post Facto

The Constitution prohibits States from enacting

ex post facto laws. U.S. Const. Art. I, §10. “The ex post

facto prohibition forbids the Congress and the States

to enact any law ‘which imposes a punishment for an

act which was not punishable at the time it was

committed; or imposes additional punishment to that

then prescribed.’” Weaver v. Graham, 450 U.S. 24, 28

(1981) (citation omitted).

In response to Miller, the Florida Legislature

enacted, and the Governor signed into law, a new

juvenile sentencing law, which provided juveniles

sentenced for non-homicide and homicide offenses

with an opportunity for release. The question

presented to the Florida Supreme Court in Horsley

was the impact of the newly-enacted legislation on

offenders whose offenses predated the new law.

Horsley v. State, 160 So. 3d 405 (Fla. 2015). The court

held that the new law applied to offenders whose

crimes predated its enactment, concluding that

because the Legislature had cured the constitutional

infirmity, applying the new law was “most consistent

with the legislative intent regarding how to comply

with Miller.” Id. at 406.

As stated by the Fifth District Court of Appeal,

the Florida Supreme Court’s decision in Hors[le]y

“indicate[s] that ex post facto principles generally do

not bar applying procedural changes to pending

criminal proceedings.” State v. Perry, 192 So. 3d 70, 75

(Fla. 5th DCA 2016), reh’g denied (Apr. 20, 2016),

review granted, SC16-547, 2016 WL 1399241 (Fla.

Apr. 6, 2016), and certified question answered, 210 So.

3d 630 (Fla. 2016).

This Court finds the Fifth District Court of

Appeal’s reasoning persuasive. It is clear that this new

legislation impacts the procedural nature in which

sentences for juveniles are imposed – it does not

impose a punishment for an act which was not

punishable at the time it was committed[,] nor does it

impose additional punishment to that which was

already prescribed. Accordingly, this Court finds the

new juvenile sentencing laws do not violate ex post

facto principles. Defendant is not entitled to relief.

Proportionality

Proportionality analysis is objective and guided

by “(i) the gravity of the offense and the harshness of

the penalty; (ii) the sentences imposed on other

criminals in the same jurisdiction; and (iii) the

sentences imposed for commission of the same crime

in other jurisdictions.” Jean-Michel v. State, 96 So. 3d

1043, 1045 (Fla. 4th DCA 2012).

As detailed by this Court’s sentencing Order,

Defendant engaged in a week-long crime spree that

terrorized the Riverside community of Jacksonville.

(Ex. F.) Defendant’s actions resulted in the deaths of

Mr. Kennedy and Mr. Langston, and a life-long injury

to Mr. Chadwick. The violent nature of Defendant’s

crimes do[es] not offend the Constitution as

“disproportionate.” Accordingly, Defendant is not

entitled to relief.

Bias and Vindictive Sentencing

Initially, this Court finds Defendant’s

allegations of vindictive sentencing are not cognizable

in a motion to correct sentencing error. Baxter v. State,

127 So. 3d 726, 732 (Fla. 1st DCA 2013) (“We align

ourselves, however, with the Second District, which

likewise rejects the use of a Rule 3.800(b) motion as a

means for raising a judicial vindictiveness claim . . . .”

(citing Mendez v. State, 28 So. 3d 948, 950 (Fla. 2d

DCA 2010) (“imposition of a vindictive sentence is

fundamental error that may be raised for the first time

on appeal.”))). In an abundance of caution, however,

this Court briefly addresses these claims.

Defendant maintains there is inherent bias and

vindictiveness because his sentences violate ex post

facto and proportionality principles. As discussed

above, this Court finds Defendant’s sentences do not

violate ex post facto or proportionality principles. As to

vindictiveness and bias with regard to mitigation, this

Court considered all of the mitigation Defendant

presented at the sentencing hearing in the above-

captioned case numbers. Defendant specifically

alleges this Court did not consider a report by Dr.

Gregory Prichard. While this Court granted the State

funding for an evaluation completed by Dr. Prichard,

the State neither admitted this report during the

sentencing hearing nor was the report ever provided

to this Court by Defendant. (Ex. H.)[10] Thus, this

Court did not review Dr. Prichard’s report because it

was not before this Court for consideration. As a

result, the only information on which this Court could

rely to assess the factors within section 921.1401(2)(a)-

(j), Florida Statutes, was the information admitted

into evidence during the 2017 sentencing hearing,

which was comprised of mostly documentation from

1981.

Sentence Review

Defendant alleges he filed a Motion on or about

September 20, 2017,[11] requesting a review of his

sentence, and subsequently asked for a modification of

his sentence after this Court pronounced Defendant’s

sentence on December 6, 2017. At the December 14,

2017 status hearing, this Court noted that it never

received Defendant’s alleged September 20, 2017

10 Doc. 8-4 at 60, Consent Order Granting State’s Evaluation of the Defendant.

11 Doc. 8-3 at 207.

Motion for Sentence Review, and the Clerk’s docket

shows no record of this motion.[12]

This Court finds, however, that any allegations

related to Defendant’s request for a sentence review

are moot. As stated at the December 14, 2017 status

hearing, this Court will move forward with a sentence

review per Defendant’s written request received on

December 12, 2017. (Ex. I.)[13]

Docs. 8-3 at 222-27 (footnote and selected emphasis deleted); 9-11 at 4-9. The

First DCA affirmed the postconviction court’s denial of relief per curiam

without issuing a written opinion, Doc. 8-5 at 162, and denied Harmon’s motion

for a written opinion and rehearing on February 17, 2020, id. at 171.

To the extent that the appellate court decided Harmon’s claims on the

merits, the Court will address the claims in accordance with the deferential

standard for federal court review of state court adjudications. After a review of

the record and the applicable law, the Court concludes that the state court’s

adjudication of the claims 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 in the state court proceedings. Thus, Harmon is not

entitled to relief on the basis of these claims.

12 Doc. 8-5 at 45.

13 Doc. 8-4 at 61.

Nevertheless, even if the appellate court’s adjudication of the claims is

not entitled to deference, Harmon’s claims are without merit because the

record supports the postconviction court’s conclusion. In the aftermath of

Graham and Miller, the Florida Legislature enacted section 921.1401, titled

“Sentence of life imprisonment for persons who are under the age of 18 years

at the time of the offense; sentencing proceedings,” which became effective July

1, 2014. It provides that “the court may conduct a separate sentencing hearing

to determine if a term of imprisonment for life or a term of years equal to life

imprisonment is an appropriate sentence.” Fla. Stat. § 921.1401(1). Section

921.1401(2) sets forth a non-exhaustive list of ten factors that take into account

various aspects of the defendant’s youth, background, and offense

participation. That section provides:

In determining whether life imprisonment or a term of

years equal to life imprisonment is an appropriate

sentence, the court shall consider factors relevant to

the offense and the defendant’s youth and attendant

circumstances, including, but not limited to:

(a) The nature and circumstances of the offense

committed by the defendant.

(b) The effect of the crime on the victim’s family and

on the community.

(c) The defendant’s age, maturity, intellectual

capacity, and mental and emotional health at the time

of the offense.

(d) The defendant’s background, including his or her

family, home, and community environment.

(e) The effect, if any, of immaturity, impetuosity, or

failure to appreciate risks and consequences on the

defendant’s participation in the offense.

(f) The extent of the defendant’s participation in the

offense.

(g) The effect, if any, of familial pressure or peer

pressure on the defendant’s actions.

(h) The nature and extent of the defendant’s prior

criminal history.

(i) The effect, if any, of characteristics attributable to

the defendant’s youth on the defendant’s judgment.

(j) The possibility of rehabilitating the defendant.

Fla. Stat. § 921.1401(2)(a)-(j).

In the instant action, the trial court held a hearing in October 2017, at

which Harmon testified. After the State’s argument, Doc. 8-5 at 6-30, Harmon

argued as follows:

It is the defendant’s position that a life sentence would

be an ex post facto application of the statute for

juvenile sentencing as being harsh, mean, and

unconstitutional.

With all due respect to the State, the defendant

has chosen to remain silent and do[es] not contest

anything that’s being proffered.

Again, I do apologize for my actions as a child, a

juvenile. I was not -- I was anything but -- I’m not a

killer, I don’t kill women. I never hit my sister. I never

threatened my sister.

But it is the defendant’s position that he is

entitled to receive, okay, 40 years per sentence [to] run

concurrent[ly], and for the Court to immediately give

a sentence review hearing after that. I’ve proffered

motions to that effect. Again, a life sentence would be

just that, cruel and unusual punishment.

As far as what the State presented, they’re not

the foundation that the defendant is incorrigible,

uncommon and rare, that rare individual that is

worthy of a life sentence. That is unfounded because

the last DR [(disciplinary report)] or charge that the

defendant received was 31 years ago for an assault or

a weapon, and I miraculously went through 31 years

without having to repeat that.

I’m not a violent person. I was at one time, and

I was a child at one time. I am not a violent person

now. I’m not a child now. I have changed. Thank you,

sir.

Id. at 30-31.

The court resentenced Harmon a few months later. In a sentencing

order, the court described the circumstances of each criminal offense and

separately addressed each statutory factor listed in Florida Statutes section

921.1401(2)(a)-(j). Docs. 8-1 at 150-154, 159-68; 9-9 at 3-7, 12-21. The court

announced the sentence, stating in pertinent part:

Based on the information described in each

factor above, this Court finds that Defendant did

intend to kill Mr. Kennedy and Mr. Langston. While

Defendant may not have pulled the actual trigger, this

Court finds his active participation in these crimes, as

described throughout this Order, demonstrates intent

to kill Mr. Kennedy and Mr. Langston. Accordingly, in

case numbers 1981-CF-00986 and 1981-CF-00987,

Defendant is hereby sentenced to a term of life

imprisonment. § 775.082(3)(b)2, Fla. Stat. (2014). As

dictated by the new juvenile sentencing laws,

Defendant is entitled to a twenty-five-year review of

this sentence. §§ 775.082(3)(b)2a, 921.1402(2)(b), Fla.

Stat. (2014).

As to case numbers 1981-CF-00984 and 1981-

CF-00985, Defendant is hereby sentenced to a term of

life imprisonment as to each count. § 775.082(3)(c),

Fla. Stat. (2014). As dictated by the new juvenile

sentencing laws, Defendant is entitled to a twenty-

year review of this sentence. §§ 775.082(3)(c),

921.1402(2)(d), Fla. Stat. (2014).

Docs. 8-1 at 168; 9-9 at 21.

As to ex post facto principles, the Eleventh Circuit has stated:

Article I, Section 9, clause 3 of the United States

Constitution states, “No ... ex post facto law shall be

passed.” The Ex Post Facto Clause prohibits Congress

from enacting a law that “appl[ies] to events occurring

before its enactment ... [and] disadvantage[s] the

offender affected by it[.]” Lynce v. Mathis, 519 U.S.

433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997)

(internal quotation marks and citations omitted). An

“ex post facto inquiry ... [focuses] not on whether a

legislative change produces some ambiguous sort of

‘disadvantage,’ ... but on whether any such change

alters the definition of criminal conduct or increases

the penalty by which a crime is punishable.” Morales,

514 U.S. at 506 n.3, 115 S.Ct. 1597.[14] The Clause

does not “forbid[] any legislative change that has any

conceivable risk of affecting a prisoner’s punishment.”

Id. at 508, 115 S.Ct. 1597. Instead, the Clause

prohibits only those retroactively applied laws that

“produce[] a sufficient risk of increasing the measure

of punishment attached to the covered crimes,” id. at

509, 115 S.Ct. 1597, or affects “the quantum of

punishment” imposed, Dobbert v. Fla., 432 U.S. 282,

294, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). That

prohibition “operates not to protect an individual’s

right to less punishment, but rather as a means of

assuring that an individual will receive fair warning

of criminal statutes and the punishments they carry.”

Hock v. Singletary, 41 F.3d 1470, 1472 (11th Cir. 1995)

(citing Dobbert, 432 U.S. at 298, 97 S.Ct. 2290, and

14 California Dep’t of Corr. v. Morales, 514 U.S. 499 (1995).

Weaver v. Graham, 450 U.S. 24, 28–30, 101 S.Ct. 960,

67 L.Ed.2d 17 (1981)).

United States v. Rosello, 737 F. App’x 907, 908 (11th Cir. 2018). Here,

Harmon’s assertion that the trial court’s imposition of life sentences is a

violation of ex post facto principles is meritless. See Horsley v. State, 160 So.

3d 393, 405 (Fla. 2015) (“We conclude that applying chapter 2014-220, Laws of

Florida, to all juvenile offenders whose sentences are unconstitutional under

Miller is the appropriate remedy.”). As such, Harmon is not entitled to federal

habeas relief as to ground one.

Nor is Harmon entitled to federal habeas relief with respect to his

assertion that his life sentences amount to cruel and unusual punishment

under the Eighth Amendment. Harmon asserts that his legal arguments are

“consistent” with Montgomery v. Louisiana, 577 U.S. 190 (2016),15 and that life

imprisonment “poses a danger of becoming a death sentence” because he is an

elderly inmate who feels threatened by “the actual presence of COVID-19” at

Union Correctional Institution. Reply at 10. The resentencing court properly

applied Florida Statutes section 921.1401 by holding an individualized

15 The United States Supreme Court stated that “Miller drew a line between

children whose crimes reflect transient immaturity and those rare children whose

crimes reflect irreparable corruption” and that Miller “rendered life without parole

an unconstitutional penalty” for “juvenile offenders whose crimes reflect the transient

immaturity of youth.” Montgomery, 577 U.S. at 208-09.

sentencing hearing to determine whether a sentence of life in prison or a term

of years equal to life imprisonment was an appropriate sentence for Harmon,

an offender who was under eighteen years old at the time he committed the

crimes. The court made findings relevant to Harmon’s youth and attendant

circumstances, undoubtedly reflecting that the resentencing court performed

the appropriate analysis.

As to the factor concerning the effect of immaturity, impetuosity, or

failure to appreciate the risks and consequences on Harmon’s participation in

the offenses, the court stated:

While Defendant did not present any evidence

as to the science of adolescent brains, this Court is

aware of the science and has fully and thoughtfully

considered the science on adolescent brain

development in deciding an appropriate and

constitutional sentence. Higher courts have stated

that children are constitutionally different[16] and this

Court agrees. Adolescent brain science sheds light on

some of the underlying causes of poor judgment and

impulsive decision making in youth. Adolescents are

more likely to be impulsive, emotional, and unable to

appreciate the long-term consequences of their

actions. Adolescents are also more likely to give into

their impulsive thoughts and engage in risky behavior

in order to satisfy their short-term goals.

This Court initially considered the crime against

Mr. Chadwick to be more impulsive than the

16 See Miller, 567 U.S. at 480 (stating “we require [the sentencing court] to take

into account how children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison”) (footnote omitted); Horsley, 160

So. 3d at 399.

remaining three incidents. There is some evidence in

the record that Mr. Chadwick called Defendant and

the co-defendant a derogatory term when they asked

for a ride home, which may have ignited an impulsive

response to the situation as Defendant and the co-

defendant did not have a plan once they had Mr.

Chadwick in the car. However, Defendant and the co-

defendant brought a firearm to the interaction with

Mr. Chadwick indicating some thought as to what they

wanted to do, which belies the argument that this

crime was the impulsive action[] of an adolescent

mind.

As to the remaining crimes, however, it is clear

that Defendant and co-defendant planned and

calculated their actions. For each offense, Defendant

and co-defendant approached their victim with the

pretense of asking for directions. Defendant and the

co-defendant, with the exception of the first victim,

chose a vulnerable, older male. Defendant and the co-

defendant brought a firearm to each crime and

attempted to drive the victims to an isolated area on

the Northside with the intent to execute them.

Defendant and his co-defendant also went to great

lengths to cover-up their involvement in the crimes;

backing Mr. Kennedy’s car into a parking spot so that

the tags would be concealed, fleeing to Miami to avoid

detection, and fabricating a story about Giddieup to

avoid prosecution for Mr. Kennedy’s murder.

While this Court has given adolescent brain

science great weight, it finds that Defendant’s actions

go well beyond the immaturity and impetuosity

expected of a juvenile brain. Nothing in the record

before this Court supports a conclusion that Defendant

was caught up in the moment, or lacked time to

thoroughly think about the consequences of his

actions. Defendant could have stopped his

involvement with his co-defendant after the first

incident with Mr. Chadwick. Yet, after the first crime

with Mr. Chadwick, Defendant and the co-defendant

met and decided they would continue down a

treacherous path. Defendant made the conscious

decision to continue his crime spree and ended or

forever changed the lives of the victims.

This Court finds the level of detail and

sophistication that went into committing this crime

spree in 1981 goes beyond the rash and impulsive

nature expected of a juvenile mind, and instead

demonstrates how little influence Defendant’s youth

had on his actions. Indeed, his actions show something

more sinister than mere transient youth.

Docs. 8-1 at 164-65; 9-9 at 17-18. After concluding that the statutory factors

weighed in favor of imposing life imprisonment, the trial court resentenced

Harmon to life in prison.

Notably, Harmon “has not received an inescapable, irrevocable life

sentence” because he has a meaningful opportunity for review under Florida

Statutes section 921.1402. Bell v. State, 313 So. 3d 1183, 1189 (Fla. 1st DCA

2021) (“Because section 1402 provides a meaningful opportunity for release, a

life sentence which is subject to its review does not violate the Eighth

Amendment, and a court sentencing a juvenile offender to life under these

circumstances need not make any findings of ‘irreparable corruption.’”) (citing

Phillips v. State, 286 So. 3d 905, 909 (Fla. 1st DCA 2019)); see Calabrese v.

State, 325 So. 3d 938 (Fla. 5th DCA 2021) (stating “a sentence imposed after

proper consideration of the section 921.1401 factors, with the opportunity for

a judicial review of the sentence at twenty-five years pursuant to section

921.1402, is constitutional under the Eighth Amendment”). Insofar as Harmon

challenges the state court’s determination as to the weighing of the statutory

factors, “it is the province of the sentencing court to determine how much

weight should be given to each” factor during juvenile resentencing. Bell, 313

So. 3d at 1189. Thus, Harmon is not entitled to federal habeas relief as to his

assertions under ground two.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Harmon 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, Harmon “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, 537 U.S. at 335-36 (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 Petition (Doc. 1) is DENIED, and this action is DISMISSED

WITH PREJUDICE.

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

and dismissing this case with prejudice.

3. If Harmon appeals the denial of the 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 16th day of

September, 2022.

MARCIA MORALES HOWARD

United States District Judge

Jax-1 3/11

C:

James Harmon III, FDOC #080164

Counsel of Record

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