Opinion
Case No. 3:20cv5545-LC-HTC
08-12-2020
SIDNEY MARTS, Petitioner, v. SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
ORDER and REPORT AND RECOMMENDATION
Petitioner, Sidney Marts, proceeding pro se, filed a petition under 28 U.S.C. § 2254 by delivering it to prison mail officials on June 8, 2020. ECF Doc. 1. The matter was referred to the undersigned Magistrate Judge for preliminary screening and report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). For the reasons set forth below, the undersigned recommends the Petition be DISMISSED prior to service and without an evidentiary hearing under Habeas Rule 4 as it plainly appears from the petition that it is an unauthorized successive petition.
See Habeas Rule 3(d) and Houston v. Lack, 487 U.S. 266, 275-76 (1988) (Under the "prison mailbox rule," a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing.).
I. THE PETITION
Marts challenges his conviction in the First Judicial Circuit Court for Escambia County case number 2007-CF-6067. ECF Doc. 1 at 1. He states he was found guilty by a jury of three counts: unauthorized use of personal identification, uttering a forged instrument, and grand theft. Id. He was sentenced on September 3, 2008 to three (3) consecutive five-year terms, for a total of fifteen years. Id. He filed a timely notice of appeal (1D08-4577), and his conviction was per curiam affirmed on December 23, 2009. Marts v. State, 25 So. 3d 1227 (Fla. Dist. Ct. App. 2009).
He raises one ground for relief in this federal petition—that his September 3, 2008 sentence was illegal because of subsequent changes to Florida Statutes and Florida case law. ECF Doc. 1 at 3. His argument appears to be the following. First, on July 1, 2009—while his case was still on direct appeal—the Florida Legislature added the following language to Florida Statute § 775.082, entitled "Penalties; applicability of sentencing structures; mandatory minimum sentences for certain reoffenders previously released from prison":
(10) If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the
public, the court may sentence the offender to a state correctional facility pursuant to this section.Fla. Stat. Ann. § 775.082 (West). Petitioner claims that his total sentencing points were 16.8, ECF Doc. 1 at 5, and therefore appears to argue this statute should apply to him, even though his sentence was rendered around ten (10) months before the amendment's effective date. He then argues that the Florida Supreme Court's decision in Brown v. State, 260 So. 3d 147, 149 (Fla. 2018), reh'g denied, No. SC18-323, 2019 WL 354563 (Fla. Jan. 3, 2019) somehow applies to his case. Brown held that § 775.082(10) as amended was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny because it allows a judge, rather than a jury, to make the "danger to the public" finding supporting a state prison sanction rather than a nonstate prison sanction.
In sum, Marts appears to argue that a statutory amendment that was not applied to him at sentencing should have been because it was passed while his case was on appeal but that had the judge attempted to apply it, such application would have been unconstitutional because the jury, not a judge, must decide such a factual issue. Because of all this, Marts concludes, "established legislation at 775.082(10) and subsequent thereof renders current sentence void ab initio, which gives this court authority to address a void judgment at any time." ECF Doc. 1 at 17. He also asserts that he has no effective remedy in the state system because he has been barred from filing postconviction challenges to this conviction because he had filed so many challenges found to be frivolous. Id. at 10 (citing 134 So.3d 929 (Fla. 1st DCA 2012)).
II. DISMISSAL UNDER HABEAS RULE 4
Under Habeas Rule 4, "[t]he clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. Rule 4 requires district courts to dismiss § 2254 petitions without ordering the State to respond "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Paez v. Sec'y, Fla. Dep't of Corr., 947 F.3d 649 (11th Cir. 2020). Such sua sponte dismissal under Rule 4 serves to "eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Rules Governing § 2254 cases, R. 4 (advisory committee notes).
A dismissal under Rule 4 may be appropriate both on the merits and a finding that the petition is procedurally barred. Paez, 947 F.3d at 649; Blackmon v. Sec'y of Fla. Dep't of Corr., No. 3:20CV5454-LC-HTC, 2020 WL 3978403, at *1 (N.D. Fla. June 16, 2020), report and recommendation adopted, No. 3:20CV5454-LC-HTC, 2020 WL 3977941 (N.D. Fla. July 14, 2020) (dismissing petition under Rule 4 on grounds that court lacked jurisdiction over unauthorized second or successive petition); McMillan v. Cooks, 2018 WL 6835918, at *1 (S.D. Ala. Nov. 16, 2018) (same); Roberts v. Noe, 2019 WL 1905176, at *1 (N.D. Ala. Apr. 15, 2019) (same).
In determining whether to dismiss a habeas petition under Rule 4, a court may properly take judicial notice of the state and federal court dockets. Paez, 947 F.3d at 649. Court records comply with the requirements of Federal Rule of Evidence 201, which permits a court to "judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2); see Paez, 947 F.3d at 649 (citing Cunningham v. Dist. Att'y's Office, 592 F.3d 1237, 1255 (11th Cir. 2010).
Thus, as an initial matter, the undersigned will take judicial notice of Marts' prior federal cases and the state court records pertaining to his underlying conviction and appeal, identified by case number 2007-CF-6067, filed in Escambia County, and case number 1D08-4577, filed with the First District Court of Appeal. Additionally, the Court will instruct the clerk to post as exhibits to this Report and Recommendation those portions of the court records which the undersigned considered in recommending this dismissal. Id. ("We think the best practice would be to include copies of any judicially noticed records as part of the Order that relies upon them, so as to ensure the inmate receives them.").
III. ANALYSIS
Marts admits this is not his first federal petition attacking the conviction at issue here. Question 13 of the form petition filed by Marts, asks "Have you previously filed any type of petition, application or motion in a federal court regarding the conviction that you challenge in this petition?" ECF Doc. 1 at 16. In response, Marts checked "Yes." Although Marts did not provide any other case identifying information, as requested on the form, Marts does state that "The issue was raised partially by second or successive habeas corpus application with Eleventh Circuit. The Court never address[ed] merits." Id.
A review of the electronic dockets in this District shows that Marts has filed many previous petitions regarding the same conviction at issue here arising from Escambia County Case Number 2007-CF-6067, most of which have been denied as successive petitions. The undersigned takes judicial notice of the following cases. In Marts v. Tucker, Case No. 3:10-cv-240-LC/EMT, Marts filed a § 2254 petition challenging the same state court judgment on various grounds, including that it violated the Double Jeopardy Clause. See Case No. 3:10-cv-240-LC/EMT, Doc. 47. This Court denied the petition on the merits on May 17, 2012. Id., Docs. 73, 79, 80. The Eleventh Circuit denied Marts' motion for a certificate of appealability on October 18, 2012. Id., Doc. 87.
Also, in Marts v. Secretary, 3:18-cv-02378-MCR-MJF, the Court dismissed his petition as the latest in a series of unauthorized successive petitions. See 3:18-cv-02378-MCR-MJF, Docs. 4 & 6. Similarly, in Marts v. Jones, 3:17-cv-00260-LC-GRJ, ECF Docs. 7 & 9, the Court dismissed the petition as an unauthorized successive petition. See also Marts v. Secretary, Fla. Dep't of Corrections, No. 3:13-cv-399-RVEMT (N.D. Fla. Sept. 8, 2015) (discussing several prior petitions challenging the same conviction and sentence and dismissing the petition as an unauthorized successive petition).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), before filing a second or successive § 2254 petition in the district court, a prisoner "shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Absent authorization from the Eleventh Circuit, a second petition is subject to dismissal as an improper or successive petition. Indeed, a district court lacks jurisdiction to consider a "second or successive" habeas corpus petition that was not previously authorized by an appellate court. See Burton v. Stewart, 549 U.S. 147, 152, 157 (2007) (holding that the district court lacked jurisdiction to entertain a second habeas petition because prisoner failed to obtain an order from the court of appeals authorizing him to file the petition); Fugate v. Dep't of Corr., 301 F.3d 1287, 1288 (11th Cir. 2002) (same).
Marts does not assert that he has received authorization from the Eleventh Circuit to file this successive petition. Instead, Marts argues that the Court has "authority to address a void judgment at any time." ECF Doc. 1 at 17. Marts, however, does not cite any legal support for this proposition and the undersigned is unable to find any that exists.
To the contrary, this argument has been rejected. For example, in United States v. Mazun, 369 F. App'x 876 (10th Cir. 2010), after having unsuccessfully filed a § 2255 motion, the petitioner filed a Rule 60(b)(4) motion arguing that the district court's failure to "submit to the jury an essential element of the crime—the type of drugs and the drug quantity—is a jurisdictional defect which renders [the district court's] judgment void" Id. at 877. The district court denied the motion, and the appellate court reversed, finding that the district court lacked jurisdiction to deny the motion because the motion was really a successive § 2255 petition. Id. at 878.
Indeed, courts in this district have rejected a similar argument that a state court's lack of jurisdiction to enter a judgment may be raised at any time despite the AEDPA's statutory time limitations. See, e.g., Johnny Drawdy v. Sec'y, Dep't of Corr., No. 809-CV-1993-T-30AEP, 2009 WL 3644626, at *2 (M.D. Fla. Nov. 2, 2009) ("There is no exception under AEDPA's statute of limitation for a § 2254 claim that the state court lacked subject matter jurisdiction.") (citing Johnson v. Jones, 2006 U.S. Dist. LEXIS 97534, 2006 WL 2092601, 2 (M.D. Ala., 2006)); Carpenter v. Motley, 2007 U.S. Dist. LEXIS 93194, 10-11, 2007 WL 4553340 (W.D. Ky. Dec. 18, 2007) ("AEDPA does not extend the time limit for raising state jurisdictional claims.")); Haliym v. Mitchell, 492 F.3d 680, 696 (6th Cir. 2007) (applying AEDPA procedural rules to claim that "trial court was without jurisdiction to try him" and finding claim procedurally defaulted); Morales v. Jones, 417 F. App'x 746, 749 (10th Cir. 2011) (finding 2254 petition untimely, rejecting argument that "subject matter jurisdiction can never be waived and therefore [petitioner] can never be barred from raising the issue" and holding "[t]his argument is without support in the law.").
Thus, the undersigned finds, based on the face of the petition, and Marts' prior filings, of which the Court takes judicial notice, that this petition is a successive petition and should be dismissed for lack of jurisdiction.
IV. CONCLUSION
A. Sua Sponte Dismissal Is Appropriate Since the Report and Recommendation Provides Notice and an Opportunity to Be Heard
Because the amended petition is an unauthorized successive petition, the petition should be dismissed sua sponte. A court does not err by sua sponte dismissing a § 2254 petition as long as it gives petitioner notice of its decision and an opportunity to be heard in opposition. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019) (holding that the district court did not err by sua sponte dismissing plainly untimely § 2254 petition where the court provided the petitioner with "adequate notice and an opportunity to respond" (quotation marks omitted)).
This Report and Recommendation provides Marts an opportunity to file objections and, thus, affords him both notice and a reasonable opportunity to respond. Paez, 947 F.3d at 649 (the petitioner was "provided ample notice and opportunity to explain why his petition was timely in his form petition and again when he was given the opportunity to respond to the magistrate judge's Report and Recommendation that his petition be summarily dismissed as untimely") (citing Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998) (holding that plaintiff "was afforded both notice and a reasonable opportunity to oppose" procedural default when he was given an opportunity to object to the magistrate judge's Report and Recommendation that "placed [him] on notice that procedural default was a potentially dispositive issue")).
Additionally, the undersigned will also direct the clerk to provide the Secretary and the Attorney General's office a copy of the petition and this Report and Recommendation so that the Secretary will also have an opportunity to respond to the Report and Recommendation if he wishes. See Paez, 947 F.3d at 649.
B. An Evidentiary Hearing Is Not Warranted
The undersigned also finds that an evidentiary hearing is not warranted. In deciding whether to grant an evidentiary hearing, this 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). Here, whether Marts' petition is successive does not turn on any contested factual issue. Therefore, an evidentiary hearing would not assist in entitling him to relief and is not warranted.
C. Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If a certificate is issued, "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. 28 U.S.C. § 2254 Rule 11(b).
After review of the record, the Court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the district court deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is ORDERED:
1. The clerk shall serve a copy of the petition (ECF Doc. 1) and this Order and Report and Recommendation to the Respondent, Secretary of the Florida Department of Corrections, Mark Inch, by providing a copy of same to the Secretary and to the Florida Attorney General. Despite such service of the petition, under Rule 4 of the Rules Governing § 2254 Cases and because the recommendation is that the amended petition be dismissed, the Respondent may, but does not have to, file an answer, motion, or other response.
2. The clerk shall file, as an attachment to this Order and Report and Recommendation, a copy of the docket in Escambia County Case Number 2007-CF-6067 and First DCA case number 1D08-4577.
Additionally, it is respectfully RECOMMENDED:
1. That the petition, ECF Doc. 1, be DISMISSED under Habeas Rule 4.
2. That a certificate of appealability be DENIED.
3. That the clerk be directed to close the file.
At Pensacola, Florida, this 12th day of August, 2020.
/s/ _________
HOPE THAI CANNON
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations may be filed within 14 days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only and does not control. A copy of objections shall be served upon the magistrate judge and all other parties. A party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636.
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