Rickey Edward Fillmore v. Sheriff Neil Perry ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12201
January 20, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00087-CV-J-32-MCR
RICKEY EDWARD FILLMORE,
a.k.a.
Johnny Leslie Simmons,
Petitioner-Appellant,
versus
SHERIFF NEIL PERRY,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 20, 2006)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Rickey Edward Fillmore, a Florida prisoner, proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-32, 110 Stat. 1214 (1996), governs this appeal because Fillmore filed his
motion after the AEDPA’s effective date. We granted a certificate of appealability
solely on the following question: whether the district court, based on the record
before it, erred in denying appellant’s claim that his state court guilty plea was
involuntary.
On appeal, Fillmore argues that the state circuit court participated in his plea
negotiation by stating that it would recommend that Fillmore serve his probation in
Indiana and, because of the court’s participation and promise, Fillmore was
induced to plead guilty. Fillmore further contends that the district court erred in
denying his involuntary plea claim without reviewing the transcript from the state
court plea hearing and in failing to compel the State to submit the transcript to the
court for review. He also maintains that the transcript is crucial to the district
court’s determination that he was given a full and fair hearing in the state court and
whether the state court’s participation in the plea hearing resulted in an involuntary
plea.
When reviewing a district court’s denial of a § 2254 petition, we review
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“questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error.” LeCroy v. Sec’y, Fla. Dep’t of Corrections, 421 F.3d 1237, 1259
(11th Cir. 2005). Moreover, “[t]he district court’s determination of whether the
state court decision was reasonable . . . is subject to de novo review.” Id. (internal
quotation and citation omitted).
A § 2254 petition shall not be granted unless a “claim that was adjudicated
on the merits” by the state court:
(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). In a § 2254 proceeding, “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). Further, “[a] petitioner has the burden of
establishing his right to federal habeas relief and of proving all facts necessary to
show a constitutional violation.” Romine v. Head, 253 F.3d 1349, 1357 (11th Cir.
2001). Rule 5 of the rules governing § 2254 cases, however, requires that the
State’s answer to the petition contain the following:
what transcripts (of pretrial, trial, sentencing, or post-conviction
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proceedings) are available, when they can be furnished, and what
proceedings have been recorded but not transcribed. The [State] must
attach to the answer parts of the transcript that the [State] considers
relevant. The judge may order that the [State] furnish other parts of
existing transcripts or that parts of untranscribed recordings be
transcribed and furnished. If a transcript cannot be obtained, the
[State] may submit a narrative summary of the evidence.
Rule 5(c), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Such transcripts
are crucial because without them, a petitioner would find it difficult if not
impossible to satisfy the steep burden of being entitled to habeas relief.
As an initial matter, Fillmore’s involuntary plea claim is not procedurally
barred because of a failure to exhaust the claim in the state court proceedings.
Based on a liberal construction of Fillmore’s pleadings, he raised his claim in his
Florida Rule of Criminal Procedure 3.850 motion before the state circuit court and
the Fifth District Court of Appeal (“DCA”), and in his petition for writ of habeas
corpus in the DCA.
As to the merits of Fillmore’s claim, Fillmore bears the burden of proving
the facts that establish a constitutional violation and his right to habeas relief. See
Romine, 253 F.3d at 1357 (explaining that where “the evidence does not clearly
explain what happened, or more accurately why something failed to happen, the
party with the burden loses”). However, under Rule 5 of the rules governing
§ 2254 cases, the State must provide, and indicate the availability of, any relevant
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transcripts, and, if such transcripts are not available, the State may submit a
narrative summary of the evidence. Rule 5(c), Rules Governing § 2254 Cases, 28
U.S.C. foll. § 2254. The State failed to provide or indicate the availability of the
transcript from Fillmore’s plea hearing in its response to Fillmore’s petition.
Without receiving such a transcript or narrative, Fillmore was not afforded an
opportunity to meet his burden with regards to overcoming the presumption of
correctness of the state court’s factual findings. Accordingly, the district court
inappropriately applied this presumption of correctness regarding whether
Fillmore’s plea was voluntary without Fillmore having access to all of the
information guaranteed under Rule 5 and needed to rebut this presumption. Cf.
Wilson v. Cooke, 814 F.2d 614, 615 (11th Cir. 1987) (per curiam) (district court
could not rely on magistrate’s recommendation regarding habeas petition when the
magistrate did not meet its obligation to furnish a transcript of the evidentiary
hearing that was the basis for the recommendation). Additionally, we cannot give
appropriate appellate review without either a transcript or narrative on the record.
See id.Accordingly, we vacate and remand to the district court with instructions for
the court to require the State to comply with Rule 5 and to determine whether a
transcript of Fillmore’s plea hearing exists or a recording of it is available for
transcription.
VACATED AND REMANDED.
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