ORDER
THIS CAUSE сomes before the Court for consideration of Mackle Vincent Shelton’s Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Dkt. 1); the response filed in opposition thereto (Dkt. 7); Petitioner’s Reply (Dkt. 11); the parties’ Supplemental Memoranda (Dkts. 25, 31, 36); and the Amicus Brief filed in support of Petitioner. (Dkt. 28) On May 13, 2002, the Florida Legislature enacted changes to Florida’s Drug Abuse Prevention and Control law, Fla. Stat. § 893.13, as amended by Fla. Stat. § 893.101. By this enactment, Florida became the only state in the nation expressly to eliminate mens rea -as an element of a drug offense. This case, challenging the constitutionality of that law, was filed following Plaintiffs conviction for delivery of cocaine without the jury being required to consider his intent in any respect
1. BACKGROUND
A. Florida’s Legislative Scheme “Actus non facit reum nisi mens sit rea” — except in Florida.
Prior to May 2002, Florida law provided, inter alia:
(1) (a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver,3 or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:
1. A controlled substance named or described in s. 893.03(l)(a), (l)(b), (l)(d), (2)(a), (2)(b), or (2)(c) 4., commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(6) (a) It is unlawful for any pеrson to be in actual or constructive possession of a controlled substance unless such con*1294 trolled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Fla. Stat. § 893.13(l)(a),(6)(a) (2000).
Addressing whether § 893.13 included guilty knowledge as an element of the offense, the Florida Supreme Court opined:
We believe it was the intent of the legislature to prohibit the knowing possession of illicit items and to prevent persons from doing so by attaching a substantial criminal penalty to such conduct. Thus, we hold that the State was required to prove that Chicone knew of the illicit nature of the items in his possession.
Chicone v. State,
In direct and express response to the Court’s holdings in Chicone and Scott, in May 2002, the Florida legislature enacted amendments to Florida’s Drug Abuse Prevention and Control law:
(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla.2002) and Chicone v. State,684 So.2d 736 (Fla.1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.
(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.
(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.
Fla. Stat. § 893.101. As explained by one Florida court:
The statute does two things: it makes possession of a controlled substance a general intent crime, no longer requiring the state to prove that a violator be aware that the contraband is illegal, and, second, it allows a defendant to assert lack of knowledge as an affirmative defense. There is a caveat that, once this door is opened, either actual or constructive possession of the controlled substance will give rise to a permissive presumption that the possessor knew of the substance’s illicit nature, and the jury instructions will include this presumption. The knowledge element does not need to be proven, but if the defen*1295 dant puts it at issue, then the jury is going to hear about it, and the defendant must work to rebut the presumption.
Wright v. State,
Not surprisingly, Florida stands alone in its express elimination of mens rea as an element of a drug offense.
B. This Lawsuit and Petitioner’s Claims
Petitioner was arrested on October 5, 2004, and charged with eight counts: three counts of aggravated assault with a deadly weapon (Counts I — III); delivery of cocaine (Count IV); one count of fleeing or attempting to elude a law enforcement officer (Count V); driving while license suspended (Count VI); reckless driving causing damage to property or a person (Count VII); and, two counts of criminal mischief (Counts VIII and IX). (Dkt. 8 at A. 39-47) Following a jury trial on June 1, 2005, Petitioner was found guilty as to Counts IV, V, VI, VII, and IX. (Id. at 182; Dkt. 8 at B. 351-53) Because Petitioner was convicted of Count IV — delivery of cocaine — after the May 2002 changes to Florida’s Drug Abuse Prevention and Control law, the jury was not instructed as to knowledge as an element of that offense. (See Dkt. 8 at B. 338) Rather, on Count IV, the jury was simply instructed as follows:
To prove the crime of delivery of cocaine, the State must prove the following two elements beyond a reasonable doubt:
*1296 [1] That Mackle Vincent Shelton delivered a certain substance; and,
[2] That the substance was cocaine. “Deliver” or “Delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.
(Dkt. 8 at B. 338)
Petitioner was declared an Habitual Felony Offender pursuant to Fla. Stat. § 775.084 and sentenced to eighteen years in prison. (Dkt. 8 at A. 179-80, 219) Petitioner appealed his sentence and conviction and Florida’s Fifth District Court of Appeal affirmed per curiam. See Shelton v. State,
Petitioner advances nine grounds as a basis for habeas relief. (See Dkt. 1 at 5-35) Of initial importance here is ground one, Petitioner’s claim that Fla. Stat. § 893.13 is facially unconstitutional because it entirely eliminates mens rea as an element of a drug offense and creates a strict liability offense under which Petitioner was sentenced to eighteen years in prison. (Dkt. 1 at 5) Petitioner’s remaining grounds, none of which provides a sufficient basis to overturn his conviction or alter his sentence, are discussed in section 11(D) infra.
II. LEGAL STANDARDS AND ANALYSIS
A. Habeas Relief Pursuant to 28 U.S.C. § 2254
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, — U.S. —,
(d) 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 was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(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.
28 U.S.C. § 2254(d). “This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that state-court rulings be given the benefit of the doubt.” Cullen v. Pinholster, — U.S. —,
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.
Harrington,
As such, this Court reviews de novo Plaintiff’s constitutional challenge to Fla. Stat. § 893.13, as amended by § 893.101, and finds the statute to be facially unconstitutional, as it is violative of the Constitution’s due process clause.
B. Fla. Stat. § 893.13 is Facially Unconstitutional Because it Results in a Strict Liability Offense With a Harsh Penalty, Stigma, and Overbroad Regulation of Otherwise Innocuous Conduct
Petitioner’s facial challenge to Florida’s drug statute is properly premised on allegations that the State’s affirmative elimination of mens rea and scienter from this felony offense violates due process.
The requirement to prove some mens rea to establish guilt for conduct that is criminalized is firmly rooted in Supreme Court jurisprudence and, as reflected in the ineffectual response by the State to this petition, cannot be gainsaid here. Well established principles of American criminal law provide:
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.... [T]o constitute any crime there must first be a ‘vicious will.’
Morissette v. United States,
To be sure, the law recognizes the authority of government to fashion
[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.
This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard.
Patterson v. New York,
Because it is rare that a legislative body would deign to expunge knowledge or intent from a felony statute expressly, as the Florida legislature has done here, the issue typically arises where a statute is silent as to knowledge and the courts are called upon to determine whether knowledge is a prerequisite to the constitutional enforcement of the challenged statute. In such cases, courts engraft a knowledge requirement to cure the statute’s infirmity and follow the common-law presumption
In the seminal case on this issue, Staples, the United States Supreme Court held that under the National Firearms Act, 26 U.S.C. § 5861(d), which establishes a ten-year maximum sentence for a person who possesses a machine gun that is not properly registered, the government must prove that the defendant knew that the gun was a machine gun. Id. at 602,
Subsequently, in United States v. X-Citement Video, Inc.,
Applying its analysis in Staples, the Supreme Court examined the presumption that “some form of scienter is to be implied in a criminal statute even if not expressed” and, because of the added constitutional dimension “a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.” X-Citement Video,
Evaluated under this framework, the Florida drug statute fails completely.
1. Section 893.13 Violates Due Process Because its Penalties are Too Severe
It cannot reasonably be asserted that the penalty for violating Florida’s drug statute is “relatively small.” A violation of § 893.13(l)(a)(l), for delivery of a controlled substance as defined in Schedule I, Fla. Stat. 893.03(1), is a second degree felony, ordinarily punishable by imprisonment for up to fifteen years. Fla. Stat. § 775.082(3)(c). For habitual violent felony offenders, such as Pеtitioner, a violation of § 893.13(l)(a)(l) is punishable by imprisonment for up to thirty years and includes a ten-year mandatory minimum sentence. See Fla. Stat. § 775.084(l)(b). Other provisions of Florida’s drug statute subject offenders to even harsher penalties, including ordinary imprisonment for thirty years for first time offenders and life imprisonment for recidivists. See, e.g., Fla. Stat. §§ 893.13(l)(b) (delivery of more than 10 grams of a schedule I substance); § 893.13(l)(e) (delivery of cocaine within 1,000 feet of a child care facility, school, park, community center, or public recreational facility).
No strict liability statute carrying penalties of the magnitude of Fla. Stat. § 893.13 has ever been upheld under federal law. In fact, the Supreme Court has considered a penalty of up to three years’ imprisonment or a fine not exceeding $100,000.00 too harsh to impose on a strict liability offense. See Gypsum,
*1301 The potentially harsh penalty attached to violation of § 5861(d)-up to 10 years’ imprisonment-confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Cеrtainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary.
Id. Other federal courts have reached similar conclusions regarding even lighter penalties. For example, in United States v. Wulff,
While the same two-year strict liability provision was subsequently upheld by the Third Circuit, the court considered the constitutional question an extremely close call. See United States v. Engler,
Thus, while the Third and Sixth Circuits disagree over whether the outer bounds of due process lie at a one or two-year strict liability sentence, the State does not cite, and the Court has not located, any precedent applying federal law to sustain a penalty of fifteen years, thirty years, and/or life imprisonment for a strict liability offense. In fact, at least one Circuit Court of Appeals has expressly stated that a twenty-year strict liability provision would be unconstitutional. See United States v. Heller,
The State offers no safe harbor for Florida’s drug statute on this point. {See Dkt. 7; Dkt. 36) Instead, the State suggests that the statute is not unconstitutional as
As Petitioner so aptly explained, “a ruling upholding penalties on the order permitted by the statute would leave literally nowhere else to go to draw a meaningful Constitutional line. Even if there is uncertainty about precisely where this line is drawn, that hardly matters here because by any measure sentences of fifteen years to life are on the wrong side of it.” (Dkt. 25 at 11) The Court agrees. Sentences of fifteen years, thirty years, and life imprisonment are not by any measure “relatively small.” Accordingly, the Court concludes that the penalties imposed by Florida’s strict liability drug statute are too severe to pass constitutional muster, and doubly so when considered in conjunction with the other two factors in the tripartite analysis.
2. Section 893.13 Violates Due Process Because it Creates Substantial Social Stigma
In this regard, there can be little question that a conviction for a second degree felony coupled with a sentence of fifteen to thirty years tends to “gravely besmirch” a person’s reputation. As the Supreme Court noted, a felony is “as bad a word as you can give to a man or thing.” Morissette,
The State offers little argument on this point, stating only “that Shelton, who is a Habitual Violent Felony Offender, has already voluntarily besmirched his reputation long before the lack of mens rea was made an affirmative defense.” (Dkt. 36 at 19) Again, Petitioner is not raising an as-applied challenge to Florida’s Drug Abuse Prevention and Control law, so his particular past criminal history is irrelevant to the issue of whether a second degree felony conviction besmirches an individual’s reputation. Moreover, habitual offender status occasioned by a conviction under this unconstitutional statute further marred the Petitioner’s already sullied character. The Court finds, therefore, if it does not go without saying, that a felony conviction under Florida’s strict liability drug statute gravely besmirches an individual’s reputation. See Heller,
3. Section 893.13 Violates Due Process Because it Regulates Inherently Innocent Conduct
Finally, Florida’s strict liability drug statute also runs afoul of due process limits when viewed from the perspective of the nature of the activity regulated. Where laws proscribe conduct that is neither inherently dangerous nor likely to be
In Lambert, the Supreme Court held that a strict liability felon registration ordinance, punishable by six months’ imprisonment, violated due process. Id. at 229-30,
Similarly, in Liparota, the Supreme Court held that the offense of unlawfully acquiring food stamps required proof that the defendant knew he had acquired the stamps unlawfully. Liparota,
While the Supreme Court has upheld statutes regulating inherently dangerous conduct without requiring mens rea as to every element, such instances, unlike the present one, did not involve pure strict liability offenses; rather, they involved statutes that included at least some mens rea requirement. For example, in Balint, the Supreme Court addressed the requisite mens rea for a violation of the Narcotic Act of 1914. Balint,
In Freed, the Supreme Court considered a statute proscribing another inherently dangerous and likely to be regulated activity — possession of unregistered grenades. Freed,
Knowledge of the hazardous character of substances has also been sufficient to sustain liability in the shipping context. See Int’l Minerals,
Many of the cases discussed, supra, analyze either the severity of the punishment or the inherently questionable nature of the conduct at issue. The Supreme Court’s decision in Staples, however, discusses all three considerations relevant to the due process inquiry — punishment, stigma, and type of conduct at issue. Staples,
The Supreme Court held that it was indeed necessary for the government to prove the defendant’s awareness of the characteristics of his firearm that rendered it unlawful. Id. at 619,
After reviewing the extensive history, case law, and commentary regarding strict liability offenses, the Supreme Court explained that this history “might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense,” and that “absent a clear statement from Congress that mens rea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea. ” Id. at 618,
Under this analytical framework, Fla. Stat. § 893.13 cannot survive constitutional scrutiny when considered in relation to the conduct it regulates — the delivery of any substance. To state the obvious, there is a long tradition throughout human existence of lawful delivery and transfer of containers that might contain substances under innumerable facts and circumstances: carrying luggage on and off of public transportation; carrying bags in and out of stores and buildings; carrying book bags and purses in schools and places of business and work; transporting boxes via commercial transportation — the list extends ad infinitum. Under Florida’s statute, that conduct is rendered immediately criminal if it turns out that the substance is a controlled substance, without regard to the deliverer’s knowledge or intent.
The State’s only rebuttal to this point is a citation to a footnote in Staples:
*1306 Of course, if Congress thinks it necessary to reduce the Government’s burden at trial to ensure proper enforcement of the Act, it remains free to amend § 5861(d) by explicitly eliminating a mens rea requirement.
Staples,
C. Respondents’ Remaining Arguments Regarding Fla. Stat. § 893.13
In a final effort to salvage § 893.13, Respondents suggest any constitutional infirmity should be overlooked because: (1) the defendant may raise lack of knowledge as an affirmative defense, rending the statute something other than a strict liability offense (Dkt. 36 at 7); or, alternatively, (2) “it is difficult to conceive of large numbers of people ‘innocently’ selling or purchasing flour and sugar in plastic baggies for cash on a streetcorner.” (Id. at 4) Each of these arguments is discussed in turn.
1. The Affirmative Defense Set Forth in Fla. Stat. § 893.101 Cannot Be Both an Affirmative Defense and an Element of the Offense
In a vacillating and legally unsupported argument, the State contends that the question of whether the statute results in a strict liability offense cannot be answered in “a simple ‘yes’ or ‘no’.” (Dkt. 36 at 7) However, the Florida Legislature’s removal of a mens rea requirement from drug offenses could not be more clear. The statute explicitly provides “knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter.” Fla. Stat. § 893.101(2). On its face the statute punishes actual, constructive, and/or attempted delivery without any proof of knowledge — not only of the illicit nature of the substance but, apparently, even of its delivery in fact. See Fla. Stat. §§ 893.02(6), 893.13(l)(a).
Despite the clear language of the statute and the unequivocal impetus for its promulgation, see section 1(A), supra, the
Second, if this averment is offered to suggest that knowledge becomes an element of the offense if raised by the Defendant as an affirmative defense, the State is hoisted on its own petard. By the plain import of the statute, the Defendant bears the burden of raising and proving the affirmative defense of knowledge, and the State enjoys a presumption against the proof that a Defendant might proffer. But, as the State well knows, it cannot shift the burden of proof to a Defendant on an essential element of an offense. Patterson,
What is more, if this affirmative defense is somehow transformed into an element of the offense, it would fail constitutional review for the additional reason that it purports to dispense with the fundamental precept underlying the American system of justice — the “presumption of innocence.” By its terms, the statute permits the jury to presume the presence of knowledge and forces the Defendant to overcome the presumption. Thus, either the statute does not require mens rea, rendering it a strict liability offense, or it does require proof of mens rea, in which case the proof of that element could not constitutionally be shifted to the Defendant under the guise of an affirmative defense.
In point of fact, this aspect of the State’s response is wholly without merit. The legislative intent could not be more clear— § 893.101 “expressly provides that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893.” Miller v. State,
Additionally, the State argues that Fla. Stat. § 893.13 does not regulate innocuоus conduct since “the possession of cocaine is never legal,” and the imposition of harsh penalties without proof of mens rea is simply a risk drug dealers undertake for selling or delivering cocaine. (Id. at 18) By this assertion, the State confirms Professor Sanford H. Radish’s hypothesis that the basis for strict liability crimes is often simply a backhanded retort — “tough luck” to those who engage in criminal activity. Sanford H. Radish, Excusing Crime, 75 Cal. L.Rev. 257, 267-68 (1987).
But, in this suggestion, the State ignores that Florida’s statute is not a “drug dealer beware” statute but a “citizen beware statute.” Consider the student in whose book bag a classmate hastily stashes his drugs to avoid imminent detection. The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statute: delivery (actual, constructive, or attempted) and the illicit nature of the substance. See Fla. Stat. §§ 893.02(6), 893.13(l)(a). The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of the two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposes that he does in fact have guilty knowledge. Such an outcome is not countenanced under applicable constitutional proscriptions.
The Court declines to grant the State broad, sweeping authority to impose such an outcome in direct contravention of well-established principles of American criminal jurisprudence- — that no individual shоuld be subjected to condemnation and prolonged deprivation of liberty unless he acts with criminal intent — and binding Supreme Court precedent governing the constitutional analysis of strict liability offenses. See Staples,
III. PETITIONER’S REMAINING HABEAS CLAIMS
The Court finds Petitioner’s remaining challenges to his conviction and sentence unavailing.
A. Habitual Felony Offender Classification Claim
In claim two, Petitioner contends his habitual felony offender sentence is not authorized by Fla. Stat. § 775.084 because delivery of cocaine is an offense “related to” the possession of a controlled substance and therefore cannot be considered an enhanceable offense. (Dkt. 1 at 8-9)
Section 775.084(l)(a) provides that a habitual offender sentence may be imposed on a criminal defendant if:
1. The defendant has previously been convicted of any combination of two or more felonies in this state or other qualified offenses.
2. The felony for which the defendant is to be sentence was committed:
a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for a felony or other qualified offense; or
b. Within 5 years of the date of the conviction of the defendant’s last prior felony or other qualified offense, or "within 5 years of the defendant’s release from a prison sentence, probation, community control, control release, conditional release, parole or court-ordered or lawfully imposed supervision
3. The felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or the possession of a controlled substance.
4. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this paragraph.
5. A conviction of a felony or other qualified offense necessary to the operation of this paragraph has not been set aside in any postconviction proceeding.
Fla. Stat. § 775.084(l)(a) (emphasis added). Further, “to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior' to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.” Fla. Stat. § 775.084(5). “The statute reflects the legislative intent to exempt purchase or possession of controlled substances from habitual felony offender enhanced sentencing.” Dougherty v. State,
As noted, in section 11(B), supra, however, the Court has ruled Petitioner’s conviction for delivery of cocaine must be overturned; therefore this issue DENIED as moot. Whether and to the extent that Petitioner is subject to habitual felony offender status based upon his criminal history related to other felony convictions is an issue for the Florida trial court on resentencing.
B. Ineffective Assistance of Counsel Claims
As to claims three through eight, Petitioner has failed to demonstrate either deficient performance or the existence of prejudice necessary to sustain a claim for ineffective assistance of counsel. See Strickland v. Washington,
The second showing required under Strickland is prejudice: Petitioner must also show that, but for his counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different — that is, the reviewing Court’s confidence in the outcome must be undermined by counsel’s deficient performance. Strickland,
1. Claim Three
Petitioner contends that trial counsel was ineffective because he failed to object to Petitioner’s sentence on the grounds that it is unconstitutional as it exceeds the maximum allowable for a strict liability offense and because it is not authorized by Fla. Stat. § 775.084. (Dkt. 1 at 10-12) In response, the State contends this claim was procedurally defaulted in the state court and is therefore barred from consideration by this Court. (Dkt. 7 at 8)
Petitioner raised this claim in his Rule 3.850 motion for post-conviction relief. (Dkt. 8 at E.) The trial court denied this ground, stating (1) that Petitioner’s sentence is legal, as it does not exceed the maximum allowed pursuant to the habitual felony offender statute; and (2) Petitioner was procedurally barred from raising claims that could have or should have been raised on direct appeal. (Dkt. 8 at F. 4) Florida’s Fifth District Court of Appeal per curiam affirmed. (Dkt. 8 at H.) This per curiam affirmance of the state trial court’s finding of a procedural default bars this Court’s consideration of claim three.
2. Claims Four and Five
Petitioner contends the prosecutor made improper statements in closing regarding Petitioner’s guilt, the credibility of Petitionеr’s testimony, and the credibility of a state witness, thereby denying Petitioner due process and the right to a fair and impartial trial. (Dkt. 1 at 14-19) Specifically, Petitioner alleges that trial counsel was ineffective for failing to object to following the comments:
The defendant went there to sell Jerry Yon cocaine. Yon was given some money to do that. The charges — on that charge is delivery of cocaine. Did the defendant deliver some cocaine ... Did he deliver any cocaine to Jerry Yon? Yes. You saw the cocaine; you heard the testimony from Yon. You heard the testimony from Wiley Black. The cocaine’s in evidence; it is cocaine. There’s no doubt about that.
There’s no testimony about where it possibly wound up, and why it wasn’t recovered or what happened to it. It doesn’t really matter. Did the defendant deliver any cocaine to Jerry Yon? Yes. In short, the defendant’s entire testimony was fascinating beyond belief and not worthy of your belief.
Jerry Yon — you saw his demeanor on the witness stand. He’s incarcerated right now. He has nothing to gain by his testimony in this case. There are— there’s nothing; no reason for you to believe that he has anything to gain by his testimony in this case. In fact, he told you, he did not want to be testifying in this case, and he fears for himself in this case.
He [Yon] got the dope from the person that he knew would bring him some dope, and he [Petitioner] did, and he handed it over to Wiley Black. He probably dropped some in the car. He doesn’t know. It all happened very fast in the car.
You have testimony from Jerry Yon, who has nothing to gain by his testimony about the delivery that took place and why he did it.
In this case, the facts fit together to prove to you just what the state has charged. That the defendant went to that Winn-Dixie parking lot to deliver cocaine, to someone he’s known, Jerry Yon, who had called him up that same day. He didn’t go there to chat with Jerry Yon, as he says. He went there to deliver cocaine to him.
(Dkt. 8 at B. 312-13, 315, 322)
Petitioner raised these claims in his pro se appeal to the Fifth District Court of Appeal and in his Rule 3.850 motion for post-conviction relief. (Dkt. 8 at C., E.) The state court denied the claims, finding the comments Petitioner listed as personal opinion were not, in fact, personal opinions; rather, “the prosecutor was merely relating to the jury what the evidence presented at trial showed.” (Dkt. 8 at F. 5) Due to the evidence presented at trial and the contradictions in Petitioner’s own testimony, the state court concluded the prosecutor did not improperly attack Petitioner’s credibility and that it was reasonable for the prosecutor to argue Petitioner’s testimony was not believable. (Id. at 5-6) Additionally, the state court concluded that the prosecutor’s comments regarding Mr. Yon did not improperly bolster
Due process is denied “when there is a reasonable probability,” or “a рrobability sufficient to undermine confidence in the outcome,” that, but for the improper remarks, “the outcome of the proceeding would have been different.” United States v. Eyster,
The record supports the state court’s findings that no improper remarks were made during closing arguments. The prosecutor’s statements did not contain any suggestion that he was relying on information outside of the evidence presented at trial. (See Dkt. 8 at B. 312-13, 315, 322) Further, the prosecutor supported the State’s contention that the Petitioner was guilty and/or that Petitioner’s version of events was not credible by referring to other testimony given during the trial. (Id. at 312-14) Petitioner has not demonstrated that the prosecutor’s comments, even if impermissible, had a substantial and injurious effect on the jury, as there was testimony from other witnesses that Petitioner delivered cocaine to Jerry Yon. See Brecht v. Abrahamson,
Petitioner has not demonstrated that any improper comments were made, nor has he shown that counsel was ineffective for failing to object to the comments cited, supra. Therefore, the Florida courts’ denial of these claims was neither contrary to federal law nor an unreasonable determination of the facts in light of the evidence presented. See Strickland,
3. Claim Six
In claim six, Petitioner contends that trial counsel was ineffective for failing to argue to the jury key evidence that established a reasonable doubt as to Count IV, the delivery of cocaine charge. (Dkt. 1 at 20) Petitioner asserts, inter alia, that trial counsel failed to emphasize the fact that Mr. Yon’s girlfriend, who accompanied Mr. Yon to the drug deal, was never searched and that Officer Black did not maintain continuous visual observation of Mr. Yon and his girlfriend. (Id.) Petitioner raised claim six in his Rule 3.850 motion for post-conviction relief. (Dkt. 8 at E.) In
A review of the record in this case refutes Petitioner’s claim and supports the state court’s findings. Mr. Yon testified that Petitioner gave him the cocaine. (Dkt. 8 at B. 192) Officer Black testified that prior to the deal he searched Mr. Yon’s van and verified that there were no illegal drugs inside. (Id. at 131) Officer Black also testified that he could see out of the van windows and watched the transaction between Mr. Yon and Petitioner. (Id. at 134) Therefore, there is no reasonable probability that the result of the trial would have been different had trial counsel commented on Officer’s Black’s failure to search Mr. Yon’s girlfriend and/or his failure to maintain continuous visual observation. See Strickland,
4. Claim Seven
Petitioner also claims that trial counsel was ineffective for failing to effectively cross-examine state witnesses to elicit exculpatory evidence as tо Count IV, the delivery of cocaine charge. (Dkt. 1 at 24-27) Petitioner contends that trial counsel should have cross-examined Officers Black and Berry about whether they heard Petitioner agree, over the telephone, to deliver cocaine to Mr. Yon. (Id. at 24) According to Petitioner, had the jury been advised that Officers Black and Berry were not privy to the telephone conversation between Petitioner and Mr. Yon, the jury could not have found beyond a reasonable doubt that Petitioner was guilty as to Count IV. (Id. at 25) Petitioner raised claim seven in his Rule 3.850 motion for post-conviction relief, and the trial court denied the claim. (Dkt. 8 at F. 7-8) Because “the officers simply related their recollection of events that transpired on the date the incident occurred,” the state court concluded the officers’ testimony did not mislead the jury regarding whether the officers were privy to Petitioner’ telephone conversation with Mr. Yon. (Id. at 8) Finally, the court determined that Petitioner had not established the prejudice prong of Strickland because there was no showing that trial counsel’s “failure to cross examine on this specific issue so thoroughly affected the case that the ultimate outcome was undermined.” (Id.) The Court agrees.
Petitioner has not demonstrated that counsel’s failure to cross-examine Officer Black prejudiced the outcome of the trial. Officer Black testified that Mr. Yon called Petitioner to arrange the meeting. (Dkt. 8 at B. 132) Although Officer Black stated thаt “[w]e actually called him twice,” the record is clear that Mr. Yon, acting as a confidential informant, called Petitioner to arrange a meeting to purchase cocaine. (See id. at 185-86, 132) Mr. Yon testified that he: (1) set up the meeting to buy cocaine from Petitioner in a parking lot; (2) drove with his girlfriend and Officer Black to a Winn Dixie parking lot; (3) arrived at the location before Petitioner; (4) exited his vehicle and got into Petitioner’s vehicle when Petitioner arrived; and (5) “When I got in the car, I just handed the money and he [Petitioner] was in the
5. Claim Eight
In claim eight, Petitioner contends trial counsel was ineffective due to the cumulative effect of counsel’s deficiencies. (Dkt. 1 at 28) The state court rejected this claim in Petitioner’s Rule 3.850 motion for post-conviction relief, finding that because Petitioner’s Strickland claims were without merit, there could be no cumulative effect of counsel’s alleged errors. (Dkt. 8 at F. 8) Because Petitioner’s individual claims of ineffective assistance of counsel warrant no relief, he cannot demonstrate cumulative error sufficient to entitle him to federal habeas relief. See Conklin v. Schofield,
6. Claim Nine
Petitioner contends he was denied due process and equal protection when the state court denied him means to utilize the sentencing error correction procedures of Florida Rule of Criminal Procedure 3.800(b)(2). (Dkt. 1 at 30-34) During the pendency of his initial appeal, Petitioner contends Florida’s Fifth District Court of Appeal denied his request to file a Rule 3.800(b)(2) motion. (Id. at 30) In response, the State argues that this claim is purely a state procedural matter. (Dkt. 7 at 12-13)
Petitioner has raised a claim that does not implicate federal constitutional law and thus is not subject to federal habeas review. “[W]hile habeas relief is available to address defects in a criminal defendant’s conviction and sentence, an alleged defect in a collateral proceeding does not state a basis for habeas relief.” Quince v. Crosby,
Even assuming, arguendo, the Court considered Petitioner’s ninth claim, Petitioner cannot show that he was denied due process and equal protection. Rule 3.800(b)(2) permits a criminal defendant or the State to file, in the trial court, a motion to correct a sentencing error before the first appellate brief is served. Fla. R. Crim. P. 3.800(b)(2). Petitioner attempted to file his Rule 3.800(b)(2) motion after appellate counsel filed his Anders brief, and thus the appellate court correctly denied Petitioner’s request as untimely. (See Dkt. 8 at C., I.) Because the alleged sentencing errors Petitioner wished to raise were filed in his initial pro se brief,
Any of Petitioner’s remaining allegations not specifically addressed herein have been found to be without merit and are also DENIED.
IV. CERTIFICATE OF APPEALA-BILITY
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prevents appellate review of a habeas petition unless the district or circuit courts certify specific issues for appeal. See 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b). Petitioner has not requested that this Court grant him a Certificate of Appealability (“COA”), although the Court can consider the issue sua sponte. See Alexander v. Johnson,
Clear, binding precedent forecloses relief on claims two through nine — for which Petitioner is not entitled to relief. Petitioner has not demonstrated that reasonable jurists would find the district court’s assessment on these claims debatable or wrong. See Lamarca,
V. CONCLUSION
Upon consideration of the foregoing, it is hereby ORDERED as follows:
(1) Mackle Vincent Shelton’s Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Dkt. 1), is GRANTED upon Claim One of his Petition and is DENIED upon all remaining grounds;
(2) With respect to Claim One, the Court conditionally GRANTS a writ of habeas corpus. A writ of habeas corpus shall issue unless within 90 days, the State of Florida vacates Petitioner’s convictiоn and sentence with respect to Count IV and begins new sentencing proceedings against Petitioner regarding the same. The 90-day time period shall be tolled until the conclusion of any appeal from this Order, either by the exhaustion of appellate remedies or the expiration of the time period within which to file such appellate proceedings;
(3) Petitioner’s request for an evidentiary hearing (See Dkt. 1 at 36) and any other outstanding motions are DENIED;
(4) The Court will not certify any issue for appellate consideration;
(5) In accordance with Rule 57 of the Federal Rules of Civil Procedure, a*1316 Declaratory Judgment shall be entered separately, declaring Fla. Stat. § 893.13, as amended by Fla Stat. § 893.101, unconstitutional; and,
(6) The CLERK is directed to mail a certified copy of this Order to the Clerk of the Circuit Court for the Ninth Judicial Circuit, in and for Osceola County, Florida.
Notes
. Because Petitioner did not assert lack of knowledge of the illicit nature of a controlled substance as an affirmative defense (See Fla. Stat. § 893.101(2)), the jury was instructed that it must convict Petitioner upon sufficient proof that Petitioner had, in fact, delivered cocaine. The applicable instruction required no other proof or finding. (See Dkt. 8 at B. 338)
. Florida exempts itself from the age-old axiom: "The act does not make a person guilty unless the mind be also guilty.”
. "Deliver” or "delivery” is defined as "the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” Fla. Stat. § 893.02(6).
. The State of Washington adopted thе Uniform Controlled Substances Act, but its legislature has deleted the "knowingly and intentionally” language from the model act’s mere possession statute. See Wash, Rev.Code §§ 69.50.401, 69.50.603. Thus, mens rea was eliminated as an element of the offense of possession of a controlled substance under Washington law by implication not express intent of the legislature. See State v. Bradshaw,
. See also U.S. v. Harris,
. The same result would obtain under a deferential standard as the legal authority relied upon herein has long established that some level of culpable scienter is an essential element of any felony offense that punishes otherwise innocuous conduct, carries substantial penalties and imposes grievous stigma. In the absence of an articulated basis to ignore these settled principles and precedents, the state decision cannot stand.
. A full explication of the elimination of mens rea as atavistic and repugnant to the common law is eloquently and thoroughly set forth in the memorandum filed by Amici Curiae, National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, American Civil Liberties Union of Florida, Drug Policy Allianсe, Calvert Institute for Policy Research, and thirty-eight Professors of Law: (1) Bridgette Baldwin (W. New England Coll. Sch. of Law); (2) Ricardo L Bascuas (Univ. of Miami Sch. of Law); (3) Caroline Bettinger-López (Univ. of Miami Sch. of Law); (4) Guyora Binder (Univ. at Buffalo Law Sch.); (5) Jennifer Blasser (Benjamin N. Cardozo Sch. of Law); (6) Vincent M. Bonventre (Albany Law Sch.); (7) Tamar R. Birckhead, (Univ. of N.C. Sch. of Law); (8) Darryl K. Brown (Univ. of Va. Sch. of Law); (9) Paul Butler (The Geo. Wash. Univ. Law School); (10) Michael Cahill (Brooklyn Law Sch.); (11) Matthew H. Charity (W. New England Coll. Sch. of Law); (12) Lucian E. Dervan (S. 111. Univ. Sch. of Law); (13) William V. Dunlap (Quinnipiac Univ. Sch. of Law); (14) Sally Frank (Drake Univ. Law Sch.); (15) Monroe H. Freedman (Hofstra Univ. Sch. of Law); (16) Bennett L. Gershman (Pace Law Sch.); (17) Andrew Horwitz (Roger Williams Univ. Sch. of Law) (18) Babe Howell (CUNY Sch. of Law); (19) Renée Hutchins (Univ. of Md. Sch. of Law); (20) John D. King (Wash. & Lee Univ. Sch. of Law); (21) Jeffrey L. Kirchmeier (CUNY Sch. of Law); (22) Richard Daniel Klein (Touro Coll. Jacob D. Fuchs-berg Law Ctr.) (23) Kelly S. Knepper-Stephens (The Geo. Wash. Univ. Law School); (24) Alex Kreit (Thomas Jefferson Sch. of Law); (25) Donna Hae Kyun Lee (CUNY Sch. of Law); (26) Mary A. Lynch, (Albany Law Sch.); (27) Dan Markel (Fla. State Univ. Coll, of Law) (28) Ellen S. Podgor (Stetson Univ.
. Of course, where, as here, the legislative intent clearly eliminates the mens rea require
. Nor does Balint support the constitutionality of Fla. Stat. § 893.13 because, unlike the provision upheld in Balint, § 893.13 does not require proof that the defendant knew what he was delivering or even that he was delivering it, much less that it was known by him to be dangerous. Cf. Balint,
. Curiously, according to Florida's Standard Criminal Jury Instructions, if charged with the crime of possession, the State would at least have to prove that the Defendant had knowledge of the presence of the substance, but again, not that it was an illicit substance. See Fla. Std. Jury Instr. (Crim.) 25.2. Specifically, the jury instructions provide that in order to prove the crime of sale, purchase, manufacture, delivery, or possession of cocaine:
[T]he state must prove the following elements bond a reasonable doubt:
1.Defendant [sold], [purchased], [manufactured] [delivered] [possessed with intent to sell] [possessed with intent to purchase] [possessed with intent to manufacture] [possessed with intent to deliver] a certain substance.
2. The substance was cocaine.
Give if possession is charged.
3. Defendant had knowledge of the presence of the substance.
Fla. Std. Jury Instr. (Crim.) 25.2. The source of this distinction is nowhere apparent in the statute, and the knowledge requirement is, as noted аbove, not a factor in the delivery instruction. See Fla. Stat. § 893.13(l)(a).
. See, e.g., Reynolds v. State,
. The Court notes with some consternation that if the Florida legislature can by edict and without constitutional restriction eliminate the element of mens rea from a drug statute with penalties of this magnitude, it is hard to imagine what other statutes it could not similarly affect. Could the legislature amend its murder statute such that the State could meet its burden of proving murder by proving that a Defendant touched another and the victim died as a result, leaving the Defendant to raise the absence of intent as a defense, overcoming a permissive presumption that murder was the Defendant’s intent? See Patterson,
. Although the Petitioner specifically cites nine grounds as a basis for granting habeas relief, Ground 4 ("Improper Closing Arguments Made by Prosecutor Denied Defendant Fair and Impartial Trial Due Process”) and