Howard v. Secretary, Department of Corrections (Polk County)

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

BURLEY A. HOWARD,

Applicant,

v. CASE NO. 8:22-cv-1678-SDM-TGW

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Howard applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)

and challenges his convictions for burglary of a dwelling, felony petit theft, and

criminal mischief, for which he is imprisoned for fifteen years. Numerous exhibits

(“Respondent’s Exhibit __”) support the response. (Doc. 10-2) The respondent

concedes that the application is timely but argues that some grounds are unexhausted

and procedurally defaulted. (Doc. 9)

I. BACKGROUND1

On December 23, 2017, law enforcement responded to a burglary call at a

church in Polk County, Florida. (Respondent’s Exhibit 2 at 2) An “unknown

suspect” had entered the church by breaking a window. (Respondent’s Exhibit 2

at 2) The suspect stole “approximately $5.00 worth of drinks from the refrigerator.”

1 This factual summary derives from the criminal complaint affidavit. (Respondent’s Exhibit

2) Howard stipulated to the facts in the affidavit when he pleaded nolo contendere. (Respondent’s

Exhibit 6 at 6–7)

(Respondent’s Exhibit 2 at 2) Additionally, the suspect entered a “modular home”

on the property by breaking two windows. (Respondent’s Exhibit 2 at 2;

Respondent’s Exhibit 18 at 2) Law enforcement found blood “smeared” on the walls

and a windowsill in the home. (Respondent’s Exhibit 2 at 2) The blood matched a

DNA profile belonging to Howard. (Respondent’s Exhibit 2 at 2)

Howard was charged with burglary of a dwelling, felony petit theft, and

criminal mischief. (Respondent’s Exhibit 3) He pleaded nolo contendere to each

charge. (Respondent’s Exhibits 5, 6) The trial court sentenced him as a prison

releasee re-offender to fifteen years’ imprisonment for burglary, five years’

imprisonment for theft, and time served for criminal mischief. (Respondent’s Exhibit

7) The appellate court affirmed the convictions. (Respondent’s Exhibit 11) Howard

unsuccessfully moved for post-conviction relief under Florida Rules of Criminal

Procedure 3.800(a) and 3.850. (Respondent’s Exhibits 18–19, 21, 30, 34–37, 40)

This federal habeas application followed. (Doc. 1)

II. EXHAUSTION AND PROCEDURAL BAR

The respondent argues that grounds two and four are barred from federal

review because Howard failed to exhaust his state-court remedies. (Doc. 9 at 25–26,

31) “[E]xhaustion of state remedies requires that petitioners ‘fairly presen[t]’ federal

claims to the state courts in order to give the State the ‘opportunity to pass upon and

correct’ alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S.

364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)); accord Rose v.

Lundy, 455 U.S. 509, 518–19 (1982) (“A rigorously enforced total exhaustion rule

will encourage state prisoners to seek full relief first from the state courts, thus giving

those courts the first opportunity to review all claims of constitutional error.”). An

applicant must present to the federal court the same claim presented to the state

court. See Picard, 404 U.S. at 275 (“[W]e have required a state prisoner to present the

state courts with the same claim he urges upon the federal courts.”). “Mere

similarity of claims is insufficient to exhaust.” Henry, 513 U.S. at 366.

As Baldwin v. Reese, 541 U.S. 27, 32 (2004), explains, an applicant must alert

the state court that he is raising a federal claim and not just a state law claim:

A litigant wishing to raise a federal issue can easily

indicate the federal law basis for his claim in a state court

petition or brief, for example, by citing in conjunction with

the claim the federal source of law on which he relies or a

case deciding such a claim on federal grounds, or by

simply labeling the claim “federal.”

“It is not enough that all the facts necessary to support the federal claim were before

the state courts, or that a somewhat similar state law claim was made.” Anderson v.

Harless, 459 U.S. 4, 6 (1982). Consequently, “a petitioner with a claim that could

arise under state or federal law must clearly indicate to the state courts that he

intends to bring a federal claim.” Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 458

(11th Cir. 2015).

Ground Two:

Howard contends that his right to due process was violated because (1) the

trial court failed “carefully inquire” into whether his plea was “free[ ] and

voluntar[y],” (2) the modular home was a “dwelling” while the church was “used by

the public,” and (3) neither building was “distinguished as the one for which an

underlying offense would establish the intent for burglary of a dwelling.” (Doc. 1

at 9) Howard failed to raise these allegations in state court. Consequently, ground

two is unexhausted and barred from federal review absent a showing of “actual cause

and prejudice” or a “fundamental miscarriage of justice.” Coleman v. Thompson, 501

U.S. 722, 750 (1991); see also Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998)

(“[W]hen it is obvious that the unexhausted claims would be procedurally barred in

state court due to a state-law procedural default, we can forego the needless ‘judicial

ping-pong’ and just treat those claims now barred by state law as no basis for federal

habeas relief.”).

The basis for “cause” must ordinarily reside in something external to the

defense. Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995). To show

“prejudice,” the applicant must establish “not merely that the errors . . . created the

possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions.”

Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (quoting United States v. Frady,

456 U.S. 152, 170 (1982)). A fundamental miscarriage of justice occurs only if a

constitutional violation has probably resulted in the conviction of someone who is

actually innocent. House v. Bell, 547 U.S. 518, 536–37 (2006).

Howard fails to establish either cause and prejudice or a fundamental

miscarriage of justice. Therefore, ground two is procedurally barred from federal

review.

Ground Four:

Generously construed, ground four alleges that Howard’s plea of nolo

contendere lacked a sufficient factual basis because “there was no evidence” that he

acted stealthily in entering the church or the home. (Doc. 1 at 14) As a result, the

prosecution allegedly could not establish that Howard intended “to commit an

underlying offense” inside the properties. (Doc. 1 at 14) Howard raised this claim in

his Rule 3.850 motion. He argued that “the factual basis of his plea [was] insufficient

to support the charge of burglary of a dwelling” because his “alleged activity could

not possibly be considered stealthy.” (Respondent’s Exhibit 18 at 5, 7) The post-

conviction court rejected the claim, Howard appealed, and the appellate court

affirmed. (Respondent’s Exhibits 19, 26, 28, 30) Consequently, ground four is

exhausted.

III. MERITS

As determined above, ground two is barred from federal review. However,

grounds one, three, and four are exhausted and entitled to a review on the merits.

Standard of Review:

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir.

1998). Section 2254(d), which creates a highly deferential standard for federal court

review of a state-court adjudication, states in pertinent part:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

wunalse sasd tjhued iacdajtuedd iocant itohne omf etrhites cilna iSmta —te court proceedings

(1) resulted in a decision that 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) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power

of a federal habeas court to grant a state prisoner’s

application for a writ of habeas corpus with respect to

claims adjudicated on the merits in state court. Under §

2254(d)(1), the writ may issue only if one of the following

two conditions is satisfied — the state court adjudication

resulted in a decision that (1) “was contrary to . . . clearly

established Federal law, as determined by the Supreme

Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United

States.” Under the “contrary to” clause, a federal habeas

court may grant the writ if the state court arrives at a

conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case

differently than this Court has on a set of materially

indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the

writ if the state court identifies the correct governing legal

principle from this Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable[;] . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562

U.S. 86, 103 (2011); see also White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established rule applies to a given set of

facts that there could be no fairminded disagreement on the question . . . .”); Woods v.

Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable application of’ those

holdings must be objectively unreasonable, not merely wrong; even clear error will

not suffice.”) (citing Woodall, 572 U.S. at 419); accord Brown v. Head, 272 F.3d 1308,

1313 (11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of

the state court decision that we are to decide.”). The phrase “clearly established

Federal law” encompasses only the holdings of the United States Supreme Court “as

of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “[AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in

order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are

given effect to the extent possible under law.” Bell, 535 U.S. at 694. A federal court

must afford due deference to a state court’s decision. “AEDPA prevents defendants

— and federal courts — from using federal habeas corpus review as a vehicle to

second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766,

779 (2010); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult

to meet,’ . . . and ‘highly deferential standard for evaluating state-court rulings,

which demands that state-court decisions be given the benefit of the doubt’ . . . .”)

(citations omitted).

When the last state court to decide a federal claim explains its decision in a

reasoned opinion, a federal habeas court reviews the specific reasons as stated in the

opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons

given by the state court and defers to those reasons if they are reasonable.”). When

the relevant state-court decision is not accompanied with reasons for the decision,

the federal court “should ‘look through’ the unexplained decision to the last related

state-court decision that does provide a relevant rationale [and] presume that the

unexplained decision adopted the same reasoning.” Wilson, 138 S. Ct. at 1192.

In per curiam decisions without written opinions, the appellate court affirmed

Howard’s convictions and affirmed the denial of his motions for post-conviction

relief. (Respondent’s Exhibits 11, 30, 40) The appellate court’s per curiam decisions

warrant deference under Section 2254(d)(1) because “the summary nature of a state

court’s decision does not lessen the deference that it is due.” Wright v. Moore, 278

F.3d 1245, 1254 (11th Cir. 2002); see also Richter, 562 U.S. at 100 (“When a federal

claim has been presented to a state court and the state court has denied relief, it may

be presumed that the state court adjudicated the claim on the merits in the absence of

any indication or state-law procedural principles to the contrary.”), and Bishop v.

Warden, 726 F.3d 1243, 1255–56 (11th Cir. 2013) (describing the difference between

an “opinion” or “analysis” and a “decision” or “ruling” and explaining that

deference is accorded the state court’s “decision” or “ruling” even absent an

“opinion” or “analysis”).

As Pinholster explains, 563 U.S. at 181–82, review of the state-court decision is

limited to the record that was before the state court:

We now hold that review under § 2254(d)(1) is limited to

the record that was before the state court that adjudicated

the claim on the merits. Section 2254(d)(1) refers, in the

past tense, to a state-court adjudication that “resulted in” a

decision that was contrary to, or “involved” an

unreasonable application of, established law. This

backward-looking language requires an examination of the

state-court decision at the time it was made. It follows

that the record under review is limited to the record in

existence at that same time, i.e., the record before the state

court.

Howard bears the burden of overcoming by clear and convincing evidence a

state court’s fact determination. “[A] determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but

not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th

Cir. 2001).

Ineffective Assistance of Counsel:

Howard claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d

1506, 1511 (11th Cir. 1995) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.

1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of

counsel claim:

The law regarding ineffective assistance of counsel claims

is well settled and well documented. In Strickland v.

Washington, 466 U.S. 668 (1984), the Supreme Court set

forth a two-part test for analyzing ineffective assistance of

counsel claims. According to Strickland,

First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

“counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant

must show that the deficient performance

prejudiced the defense. This requires

showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a

trial whose result is reliable.

“There is no reason for a court deciding an ineffective assistance claim . . . to

address both components of the inquiry if the defendant makes an insufficient

showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment.” 466 U.S. at 690. “[A] court deciding an

actual ineffectiveness claim must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances,

the identified acts or omissions were outside the wide range of professionally

competent assistance.” 466 U.S. at 690.

Howard must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691. To meet this burden, Howard must show “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.” 466 U.S. at 694.

Howard cannot meet his burden by showing that the avenue chosen by

counsel proved unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir.

1992). Strickland cautions that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation.” Strickland, 466 U.S. at 690–91.

Sustaining a claim of ineffective assistance of counsel under Section 2254(d) is

very difficult because “[t]he standards created by Strickland and § 2254(d) are both

‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”

Richter, 562 U.S. at 105. See Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303

(11th Cir. 2019) (“Given the double deference due, it is a ‘rare case in which an

ineffective assistance of counsel claim that was denied on the merits in state court is

found to merit relief in a federal habeas proceeding.’”) (quoting Johnson v. Sec’y, Dep’t

Corrs., 643 F.3d 907, 911 (11th Cir. 2011)).

In determining “reasonableness,” Section 2254(d) authorizes determining only

“whether the state habeas court was objectively reasonable in its Strickland inquiry”

and not independently assessing whether counsel’s actions were reasonable. Putman

v. Head, 268 F.3d 1223, 1244 n.17 (11th Cir. 2001). The presumption of correctness

and the highly deferential standard of review require that the analysis of each ground

begin with the state court’s analysis.

Ground One:

Howard faults trial counsel for not moving to dismiss the “charged offense of

burglary of a dwelling.” (Doc. 1 at 6) Florida law “provides for dismissal of a

charge against a defendant when ‘[t]here are no material disputed facts and the

undisputed facts do not establish a prima facie case of guilt against the defendant.’”

State v. Yarn, 63 So. 3d 82, 84 (Fla. 2d DCA 2011) (quoting Fla. R. Crim. P.

3.190(c)(4)). Howard contends that no burglary occurred because he did not enter

the modular home “with the intent to commit an offense therein.” Grant v. State, 311

So. 3d 156, 158 (Fla. 2d DCA 2020). According to Howard, counsel was ineffective

for failing to present this argument in a motion to dismiss.

The post-conviction court held that counsel was not deficient because “a

motion to dismiss would have been denied.” (Respondent’s Exhibit 19 at 5) As the

court noted, burglary requires proof that the defendant “entered the homeowner’s

dwelling with the intent to commit an offense therein.” Grant, 311 So. 3d at 158.

Under Florida law, entering a dwelling “stealthily and without consent of the owner

or occupant . . . is prima facie evidence of entering with intent to commit an offense.”

Fla. Stat. § 810.07(1). The post-conviction court found that Howard “obviously

entered both the church and the adjacent house when the church was closed[,] and

no one could see him.” (Respondent’s Exhibit 19 at 5) Thus, “[h]ad the case gone

to trial, the state would have been entitled to the presumption of intent to commit a

crime inside the home because of [Howard’s] stealthy entry.” (Respondent’s Exhibit

19 at 5) Consequently, the court held that counsel was not deficient for failing to file

a meritless motion to dismiss. (Respondent’s Exhibit 19 at 5)

This ruling was reasonable. “[A]lthough the issue of ineffective assistance . . .

is one of constitutional dimension,” a court “must defer to the state’s construction of

its own law when the validity of the [ineffective assistance] claim . . . turns on state

law.” Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017). The post-

conviction court found that a motion to dismiss would have failed because “the state

would have been entitled to the presumption of intent to commit a crime inside the

home.” (Respondent’s Exhibit 19 at 5) Whether “a motion to dismiss would have

succeeded [on this basis] is a question of state law.” Clark v. Sec’y, Dep’t of Corr., No.

8:18-cv-2670-MSS-AEP, 2022 WL 485229, at *15 (M.D. Fla. Feb. 17, 2022).

Therefore, the post-conviction court “already has told us how the issue[ ] would have

been resolved under Florida state law had [counsel] done what [Howard] argues

[she] should have done.” Herring v. Sec’y Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th

Cir. 2005).

Because the post-conviction court “authoritatively decided as a matter of

[Florida] law” that a motion to dismiss would have failed, the remainder of the

analysis is straightforward. Calhoun v. Warden, Baldwin State Prison, 92 F.4th 1338,

1351 (11th Cir. 2024). “A lawyer cannot be deficient for failing to raise a meritless

claim.” Freeman v. Atty. Gen., 536 F.3d 1225, 1233 (11th Cir. 2008). As a result, the

post-conviction court reasonably concluded that counsel was not deficient for failing

to file a meritless motion to dismiss.2 See Garcia v. Sec’y, Dep’t of Corr., No. 8:17-cv-

2374-KKM-AAS, 2021 WL 1516070, at *7 (M.D. Fla. Apr. 16, 2021) (“Because the

state court has determined that a motion to dismiss would not have been granted,

this Court cannot reevaluate [the] motion’s chance of success under Florida law.”),

aff’d, No. 21-12461, 2023 WL 5927136 (11th Cir. Sept. 12, 2023).

Ground Three:

Howard argues that his fifteen-year sentence for burglary is unconstitutional

because a judge, rather than a jury, found that he qualified as a prison releasee re-

offender (“PRR”). (Doc. 1 at 10) A PRR is “a defendant who commits . . . an

enumerated offense, such as burglary, within three years after being released from a

2 In his application, Howard alleges that he did not act stealthily because the modular home

was “viewable to passersby at the hotel across the street.” (Doc. 1 at 6) This allegation cannot be

considered because Howard failed to properly present it to the state court. See Kelley v. Sec’y for Dep’t

of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004) (“[T]he prohibition against raising non-exhausted

claims in federal court extends not only to broad legal theories of relief, but also to the specific

assertions of fact that might support relief.”). Howard did not allege in his Rule 3.850 motion that

the home was “viewable to passersby at the hotel across the street.” He first raised this allegation

after the mandate issued in the appeal from the denial of his Rule 3.850 motion. (Respondent’s

Exhibit 34 at 2) The post-conviction court held that Howard’s new allegation was procedurally

improper because the mandate had issued and “[t]here [was] no longer an active [Rule 3.850]

motion for [him] to supplement.” (Respondent’s Exhibit 35 at 1) Howard’s failure to “properly

present” his allegation to the state court renders it unexhausted and procedurally defaulted. Mason v.

Allen, 605 F.3d 1114, 1119 (11th Cir. 2010).

correctional facility.” Marshall v. State, 277 So. 3d 1149, 1150 (Fla. 1st DCA 2019).

“If the state seeks PRR sentencing and proves that the defendant is a PRR, the court

must sentence the defendant to at least fifteen years of imprisonment for a second-

degree felony [such as burglary].” Marshall, 277 So. 3d at 1150.

Howard argues that a jury, rather than a judge, should have determined

whether he committed burglary within three years of his release from prison. (Doc. 1

at 10; Respondent’s Exhibit 36 at 1–5) He cites Alleyne v. United States, which holds

that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that

must be submitted to the jury.” 570 U.S. 99, 103 (2013). The post-conviction court

rejected Howard’s claim based on “decades of case law from the Florida Supreme

Court and all five District Courts of Appeal repeatedly upholding the [PRR] statute’s

constitutionality.” (Respondent’s Exhibit 36 at 1–2)

This ruling was reasonable. To prevail, Howard must show that the rejection

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

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

28 U.S.C. § 2254(d)(1). “‘[C]learly established Federal Law, as determined by the

Supreme Court of the United States,’ refers to the Court’s holdings, not its dicta, as

of the time of the state-court decision in question.” Bush v. Sec’y, Fla. Dep’t of Corr.,

888 F.3d 1188, 1195 (11th Cir. 2018). “[I]f some fairminded jurists could agree with

the state court’s decision, although others might disagree, federal habeas relief must

be denied.” Hill v. Humphrey, 662 F.3d 1335, 1346 (11th Cir. 2011).

Howard cannot meet this demanding standard. As noted above, “any fact

that increases the mandatory minimum [sentence] is an ‘element’ that must be

submitted to the jury.” Alleyne, 570 U.S. at 103. But Alleyne “leaves intact the

Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), which

held that ‘[o]ther than the fact of a prior conviction, any fact that increases the [statutory]

penalty for a crime . . . must be submitted to a jury.’” Williams v. State, 143 So. 3d

423, 424 (Fla. 1st DCA 2014) (emphasis added). The “date of release from [a] prior

prison sentence is not the same as [the] bare fact of a prior conviction.” Calloway v.

State, 914 So. 2d 12, 14 (Fla. 2d DCA 2005). A fairminded jurist could conclude,

however, that a release date “is directly derivative of a prior conviction [and thus]

need not be found by a jury beyond a reasonable doubt in order for a defendant to be

subject to a PRR sentence.” Robinson v. State, 337 So. 3d 1275, 1276 (Fla. 2d DCA

2022); see also Lopez v. State, 135 So. 3d 539, 540 (Fla. 2d DCA 2014) (“[B]ecause

[defendant’s] date of release from prison is a part of his prior record, that fact

determination did not need to be presented to a jury and proved beyond a reasonable

doubt.”).

Federal habeas courts have relied on this reasoning to reject similar challenges

to the PRR statute. See, e.g., Chapman v. Sec’y, Fla. Dep’t of Corr., No. 21-10137-F,

2022 WL 20303055, at *1 (11th Cir. June 3, 2022) (“[T]he state court’s

determinations, that Apprendi did not require a jury to find [petitioner’s] release date

beyond a reasonable doubt and that the state was not required to allege his PRR

status and its intent to seek an enhanced sentence in the information, were not

unreasonable, given that Florida courts have rejected similar challenges to the PRR

Act.”); Jackson v. Sec’y, Fla. Dep’t of Corr., No. 4:22-cv-139-MW-ZCB, 2025 WL

890741, at *4 (N.D. Fla. Feb. 28, 2025) (“[A] fairminded jurist could agree with the

state courts that it was not unconstitutional for a judge to find by a preponderance

the facts that led to Petitioner’s PRR status.”), adopted by 2025 WL 890159 (N.D.

Fla. Mar. 21, 2025); Myles v. Sec’y, Dep’t of Corr., No. 4:17-cv-326-RH-GRJ, 2019 WL

968880, at *3 (N.D. Fla. Feb. 28, 2019) (“Whether the Apprendi prior-conviction

exception applies to the date of a defendant’s release from custody on a prior

conviction is fairly debatable. [Petitioner] thus is not entitled to relief on this issue on

this federal petition.”).

Therefore, Howard cannot show that the rejection of his claim was “so lacking

in justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S.

at 103.

Ground Four:

Lastly, Howard alleges that his plea of nolo contendere lacked a sufficient

factual basis because “there was no evidence” that he acted stealthily in entering the

church or the home. (Doc. 1 at 14) Without such evidence, the prosecution

allegedly could not prove that Howard intended “to commit an underlying offense”

inside the properties. (Doc. 1 at 14) Thus, according to Howard, the trial court

violated his right to due process by failing to ensure that “there [was] a factual basis

for” the plea. (Respondent’s Exhibit 18 at 7)

The post-conviction court correctly rejected this claim. (Respondent’s Exhibit

19 at 5) “[T]he due process clause does not impose a constitutional duty on state

trial judges to ascertain a factual basis before accepting a plea of guilty or nolo

contendere that is not accompanied by a claim of innocence.” Wallace v. Turner, 695

F.2d 545, 548 (11th Cir. 1983); see also Loftis v. Almager, 704 F.3d 645, 648 (9th Cir.

2012) (“[Petitioner] cannot obtain habeas relief because the state trial court’s failure

to find a factual basis for his no contest plea — unaccompanied by protestations of

innocence — does not present a constitutional issue cognizable under 28 U.S.C.

§ 2254.”). Howard did not claim innocence when he pleaded nolo contendere.

(Respondent’s Exhibit 6) Therefore, the alleged failure to find a factual basis for the

plea affords Howard no relief. See Massey v. Warden, 733 F. App’x 980, 990 n.6 (11th

Cir. 2018) (“[D]ue process does not require a state court to find a factual basis for a

guilty plea unaccompanied by a claim of innocence.”).

IV. CONCLUSION

Howard’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Howard and CLOSE this case.

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Because Howard fails to demonstrate either a substantial showing of the

denial of a constitutional right or that reasonable jurists would debate both the merits

of the grounds and the procedural issues, a certificate of appealability and leave to

appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,

529 U.S. 473, 478 (2000). Howard must obtain permission from the court of appeals

to appeal in forma pauperis.

ORDERED in Tampa, Florida, on April 10, 2025.

AMAL gehen

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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