Johnson v. Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 18-cv-60013-BLOOM/Reid

RODRICK JOHNSON,

Petitioner,

v.

MARK INCH,

Respondent.

/

ORDER ADOPTING MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION

THIS CAUSE is before the Court upon the Report and Recommendations of the

Honorable Lisette M. Reid, ECF No. [27] (“Report”). On September 4, 2019, Judge Reid issued

the Report recommending that the Petition for Habeas Corpus Relief, ECF No. [1] (“Petition”),

be denied on the merits, that the requested evidentiary hearing be denied, and that a certificate of

appealability be denied and the case be closed. ECF No. [27] at 29. The Report further advised

that any objections to the Report’s findings were due within fourteen days of receipt of the

Report. Id.

Plaintiff has timely filed an objection to the Report. ECF No. [30] (“Objection”). This

Court has conducted a de novo review of the portions of the Report to which Petitioner has

objected, in accordance with 28 U.S.C. § 636(b)(1)(C), and the remainder of the Report for clear

error, and finds that the Objection is without merit and is therefore overruled. Taylor v.

Cardiovascular Specialists, P.C., 4 F. Supp. 3d 1374, 1377 (N.D. Ga. 2014) (citing United States

v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983)). The Court first notes that Petitioner’s Objection

is improper, as it further attempts to expand on arguments originally raised in the Petition and

considered by the Magistrate Judge, based on Petitioner’s disagreement with the Report’s

findings. Specifically, Petitioner’s Objection attempts to reassert the same arguments originally

raised in the Petition regarding the trial court’s allegedly improper application of Farretta v.

California, 422 U.S. 806 (1975).

Upon review, this Objection merely expands upon and reframes the arguments already

made and considered by the Magistrate Judge in her Report, or simply disagrees with the

Report’s conclusion. “It is improper for an objecting party to . . . submit [] papers to a district

court which are nothing more than a rehashing of the same arguments and positions taken in the

original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a

‘second bite at the apple’ when they file objections to a [Report and Recommendations].”

Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21,

2012) (quoting Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380,

382 (W.D.N.Y. 1992)). Nevertheless, this Objection has been considered below and is overruled.

In particular, Petitioner objects to the Report’s recommendation to deny Ground One,

which asserts that the trial court improperly conducted a Farretta hearing, focusing its inquiries

on whether Petitioner was competent to represent himself, and deprived Petitioner of his right to

self-representation. ECF No. [30]. The Report’s recommendation as to Ground One was based

upon the equivocal statements Petitioner made about his request to represent himself during the

course of the trial court’s Farretta inquiries. ECF No. [27] at 17-19. In his Objection, Petitioner

argues that the Report ignores the three prior clear and unequivocal requests Petitioner made

during the Farretta hearing. ECF No. [30] at 3-5. Judge Reid’s Report, however, correctly

explains the procedures surrounding requests to self-represent. ECF No. [27] at 15-19. To invoke

the right of self-representation, a defendant must “clearly and unequivocally” request to do so in

a manner that is “understandable to the trial court by the reasonable person standard.” Stano v.

Dugger, 921 F.2d 1125, 1144 (11th Cir. 1991); ECF No. [27] at 15-16. When presented with

such a clear and unequivocal request for self-representation, a trial court then must conduct a

Farretta hearing to determine whether the defendant knowingly, competently, and intelligently

chooses to waive the traditional benefits associated with the right to counsel, despite the dangers

and disadvantages of self-representation. See Farretta, 422 U.S. at 835; ECF No. [27] at 15. In

determining whether a defendant is making a knowing and voluntary waiver of counsel, the trial

court’s Farretta inquiries should consider numerous factors.1 Critically, even after making a

clear request to self-represent, if a defendant later makes equivocal statements about his request,

“the Farretta inquiry should stop and the opportunity to proceed without counsel should be

denied.” ECF No. [27] at 16; Brown v. Wainwright, 665 F.2d 607, 611 (Former 5th Cir. 1982)

(“Even if defendant requests to represent himself, however, the right may be waived through

defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his

request altogether.”). Thus, the Report clearly and correctly set forth the basis for its

recommendation to deny Ground One. Therefore, Petitioner’s Objection is without merit and is

overruled.

Petitioner further requests that this Court grant his request for an evidentiary hearing so

that he may further support his claims. ECF No. [30] at 8. However, the Petitioner has failed to

1 See United States v. Fant, 890 F.2d 408, 409-10 (11th Cir. 1989) (The trial court should

consider the following factors: “(1) the background, experience and conduct of the defendant including

his age, educational background, and his physical and mental health; (2) the extent to which the defendant

had contact with lawyers prior to the trial; (3) the defendant’s knowledge of the nature of the charges, the

possible defenses, and the possible penalty; (4) the defendant’s understanding of the rules of procedure,

evidence and courtroom decorum; (5) the defendant’s experience in criminal trials; (6) whether standby

counsel was appointed, and the extent to which he aided the defendant; (7) whether the waiver of counsel

was the result of mistreatment or coercion; or (8) whether the defendant was trying to manipulate the

events of the trial.”).

identify any factual dispute in existence. Thus, the Court concludes that an evidentiary hearing is

not necessary to resolve the Petitioner’s constitutional claims.

Lastly, Petitioner objects to the Magistrate Judge’s conclusion that Petitioner is not

entitled to a certificate of appealability. Id. at 8. Because the Court agrees with Judge Reid’s

analysis and conclusions, and further determines that Petitioner’s Objection is without merit, the

Court agrees that a certificate of appealability should not be issued.

The Court has conducted a de novo review of Judge Reid’s Report, the record, and the

applicable law, and is otherwise fully advised. See Williams v. McNeil, 557 F.3d 1287, 1291

(11th Cir. 2009) (citing 28 U.S.C. § 636(b)(1)). Upon review of the record and the Report, the

Court finds Judge Reid’s Report to be well reasoned and correct. The Court agrees with the

analysis in Judge Reid’s Report and concludes that Plaintiff’s Petition must be dismissed for the

reasons explained therein.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Judge Reid’s Report and Recommendations, ECF No. [27], is ADOPTED.

2. Petitioner’s Objection, ECF No. [30], is OVERRULED. The request for an

evidentiary hearing is DENIED.

3. The Petition for Habeas Corpus Relief, ECF No. [1], is DENIED. No Certificate

of Appealability shall be issued.

4. To the extent not otherwise disposed of, any scheduled hearings are

CANCELED, all pending motions are DENIED as moot, and all deadlines are

TERMINATED.

5. The Clerk of Court is directed to CLOSE this case.

Case No. 18-cv-60013-BLOOM/Reid

DONE AND ORDERED in Chambers at Miami, Florida, on October 15, 2019.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

The Honorable Lisette Reid

Counsel of record

Rodrick Johnson

L52319

South Bay Correctional Facility

Inmate Mail/Parcels

600 U.S. Highway 27 South

South Bay, Florida 33493-2233