DUKE

v.

SECRETARY, DEPARTMENT OF CORRECTIONS (CLAY COUNTY)

I. Status

Petitioner Thomas Gerald Duke, an inmate in the custody of the Florida penal system, initiated this action on December 12, 2019,1 by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1) and a Memorandum of Law and Fact (Doc. 3).2 In the Petition, Duke challenges his 2017 state court (Clay County) conviction for possession of a firearm by a convicted felon. He raises two claims. See Petition at 4-17. Respondents have submitted a memorandum in opposition to the Petition. See Amended Response to Petition for Writ of Habeas Corpus (Amended Response; Doc. 22).

II. Relevant Procedural History

On October 24, 2017, the State of Florida charged Duke, by amended information, with possession of a firearm by a convicted felon in Clay County case number 2015-CF-1613. Doc. 9-2 at 186. Duke entered an open plea of nolo contendere (reserving his right to appeal the court’s denial of his motion to suppress evidence)³ to possession of a firearm by a convicted felon on October 30, 2017. Doc. 9-4 at 156, 244-57. On November 16, 2017, the court sentenced

Duke to a term of imprisonment of 92 months with 189 days of time-served credit. Id. at 150-55, 211-43. Duke, with the benefit of counsel, appealed his conviction, arguing that (1) the trial court erred when it decided that a portable hard drive is not subject to the same Fourth Amendment protection as other computers and cell phones; (2) police officers cannot rely on a third party’s apparent authority to consent to a search when the officers knew that the third party had purchased the digital storage device from an individual who had stolen it from Duke; (3) the facial recognition search (that identified the victim) was conducted when law

69-75; Duke v. State, 255 So. 3d 478, 482 (Fla. 1st DCA 2018) (stating “the trial court properly denied Duke’s motion to suppress the evidence on the USB drives that ultimately led to the discovery of the firearm that served as the basis for the charge to which Duke pled[]”). The court denied Duke’s motion for rehearing on October 30, 2018, Doc. 9-6 at 78, and issued the mandate on November 20, 2018, id. at 76. Next, Duke filed a counseled motion for reduction of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c) in the state circuit court on

January 11, 2019. Id. at 98. In the Rule 3.800 motion, Duke asked that the court reduce his sentence to a term of incarceration of no more than five years. Id. at 103. On April 19, 2019, Duke filed a notice of withdrawal of his Rule 3.800 motion. Id. at 129. The court dismissed the Rule 3.800 motion without prejudice on April 30, 2019. Id. at 132. After initiating the instant federal habeas action in December 2019, Duke filed a pro se petition for writ of habeas corpus in the First DCA on January 23, 2020. Id. at 135. In the state petition, he asserted that his appellate counsel was ineffective because he failed to raise the following issues on direct appeal: the State committed a Giglio⁴ violation when the prosecutor used material, false testimony during the suppression hearing (ground one), id. at 140, and the “illegal vehicle inventory search” leading to the discovery of a firearm violated the Fourth Amendment (ground two), id. at 164. The First

DCA per curiam denied the petition on October 21, 2020, see Doc. 22-1 at 5-6; Duke v. State, 312 So. 3d 857 (Fla. 1st DCA 2020), and denied Duke’s pro se motion for rehearing on March³, 2021, see Doc. 22-1 at 8. During the pendency of the state habeas proceeding in the First DCA, on

September 11, 2020, Duke filed a pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Id. at 12-44. In the request for post conviction relief, Duke asserted that counsel was ineffective because he failed to: investigate and call Mario Hampton and Kiera Paige, as witnesses, at the October 2017 suppression hearing (ground one), and object to the prosecutor’s Giglio violations (ground two) and the officers’ improper, prejudicial statements (ground three). He also asserted that counsel introduced “harmful hearsay” (the recording and transcript of Mario

Hampton’s interview with Detective Matthews) at the suppression hearing

The parties have advised that the Defendant will enter a plea for a negotiated disposition if the motion is granted by stipulation. As such, the Defendant’s motion is granted subject to reconsideration if the Defendant fails to enter his plea or having entered his plea, he attempts to withdraw it or disturbs it any way. If the Defendant fails to comply with the terms of the agreement[,] the Court shall vacate this Order. In light of the foregoing, the Defendant’s conviction and his sentence are vacated conditional upon his re-entry of a plea in accordance with the agreement reached by the parties.

Id. at 63-64. That same day, Duke (who was represented by court-appointed counsel) pled guilty to possession of a firearm by a convicted felon in exchange

70-75, Judgment. On September⁷, 2022, Duke filed a pro se state petition for writ of habeas corpus in the First DCA. Id. at 82-99. He argued that “[t]here is a reasonable probability that [his] direct appeal would have been granted, his conviction reversed[,] and the illegally obtained evidence suppressed had these key facts not been overlooked.” Id. at 96. As relief, he asked that the First DCA correct “the manifest injustice” and reconsider the merits of his direct appeal, “including the overlooked key facts.” Id. at 87. On November 2, 2022, the First

DCA per curiam dismissed the petition as unauthorized, citing Baker v. State, 878 So. 2d 1236 (Fla. 2004).7 Doc. 22-1 at 101-02.

III. Conclusion

Under 28 U.S.C. § 2254(a), “an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court [shall be entertained] only on the ground that he is in custody in violation of the

Clements v. Florida, No. 21-12540, 2023 WL 1860620, at *4 (11th Cir. Feb. 9, 2023) (citing Maleng v. Cook, 490 U.S. 488, 490 (1989); Diaz v. State of Fla. Fourth Jud. Cir. ex rel. Duval Cnty., 683 F. 3d 1261, 1263 (11th Cir. 2012)). In the Amended Response, Respondents advance an in-custody argument, stating that dismissal of the case is required because Duke challenges the 2017 judgment and sentence that the state court vacated on June 13, 2022, and therefore, seeks relief from the custody of a state-court judgment that no longer exists. Amended Response at 6-8. They assert that the Court should dismiss the case without prejudice because Duke may challenge the June 13, 2022 judgment of conviction and sentence by refiling his claims, and that a refiling would be neither an impermissible second or successive § 2254 petition nor barred by the one-year statute of limitations. Id. at 7. Duke opposes

Respondents’ request to dismiss and states that he neither intends to file another habeas corpus action nor challenge the resentencing. Amended Reply at 2. He therefore asks that the Court proceed to hear and rule on the claims he presents in the Petition. Id. at 4.

Given the procedural posture of the case (including its age and the running of the one-year limitations period since the resentencing) as well as Duke’s upcoming estimated release date,⁸ the Court finds that the most appropriate course is to stay and administratively close the case subject to reopening when Duke files an amended petition. To avoid any potential for piecemeal federal litigation, the Court reminds Duke that, when he files the amended petition, he must present all claims (those related to both his conviction and resentencing) that he wants the Court to consider.9 The amended petition will become the operative petition in the instant case. Therefore, it is now ORDERED AND ADJUDGED:

1. This action is STAYED and ADMINISTRATIVELY CLOSED subject to reopening when Petitioner files an amended petition no later than thirty days from the date of this Order. If Petitioner fails to file an amended petition, the case will be subject to dismissal for lack of prosecution.
2. Respondents, no later than thirty days from the filing of the amended petition, must respond in compliance with the Court’s Order (Doc. 8).

MARCIA MORALES HOWARD

United States District Judge

Jax-1 2/21 C: Thomas Gerald Duke, FDOC #1585385 Counsel of Record