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Michael Moore is no longer the Secretary of the Department of Corrections, and

James Crosby, the current Secretary, is hereby substituted for him.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

STANLEY M. STROTHER,

Petitioner,

vs. CASE NO. 4:03CV19-SPM/AK

JAMES CROSBY,1

Respondent.

 /

REPORT AND RECOMMENDATION

This cause is before the Court on Petitioner’s amended petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Doc. 7. Respondent has answered the petition,

Doc. 13, and Petitioner has filed his reply. Doc. 14. This matter is therefore in a

posture for decision. Having carefully considered the matter, the Court recommends

that the habeas relief be denied.

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Petitioner did not number the attached pages; however, on the back of each

page is a pencilled number, which the Court will use for reference even though the

numbers are in reverse chronological order.

No. 4:03cv19-spm/ak

BACKGROUND

On or about May 14, 1997, Petitioner Stanley M. Strother was charged in a onecount information with a scheme to defraud under Fla. Stat. Ann. § 817.034(4)(a)1. 

Doc. 13, App. at 121. More specifically, Petitioner was charged as follows:

STANLEY MARTIN STOTHER, on or after the 18th day of October, 1993,

and on or before the 16th day of April, 1997, within St. Johns County,

Florida, while he was in a position of trust and confidence or he had a

business relationship with [the victim], did then and there unlawfully

engage in a systematic and ongoing course of conduct with the intent to

defraud one or more persons, or with the intent to obtain property from

[the victim] or other persons by false or fraudulent pretenses,

representations, or promises or willful misrepresentations of a future act,

and did obtain property in an aggregate value of Fifty Thousand Dollars

($50,000) or more.

Id.

At trial, the victim testified that Petitioner became her insurance agent in late

1992. Id. at 20. Over the course of their relationship, she, Petitioner, and his family

became friends. Id. In October, 1993, Petitioner began soliciting loans from the victim

for business and personal expenses. Id. at 20-21. In return, Petitioner was to repay the

loan monthly and to cover the premiums for the victim’s supplemental Medicare

insurance. Id. The amount which the victim paid out to Petitioner from 1993 through

1995 was over $190,000.00. Id. at 129. The last check which the victim wrote to

Petitioner was dated May 26, 1995. Id. at 105. The victim did not talk to the police,

however, until April, 1997, because she “trusted [Petitioner] enough that...he would pay

[her] back.” Doc. 7, Attach. at 12; see also id. at 10.2

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The jury convicted Petitioner of “organized fraud via a scheme to defraud of an

aggregate value of $50,000.00 or more as charged,” Doc. 13, App. at 123, and

Petitioner was sentenced to fifteen years imprisonment. Id. at 125. Though the

recommended sentence was two and one-half to three and one-half years, the

sentencing court found that even the discretionary sentence of four and one-half years 

was not “sufficient to adequately punish [Petitioner] for his actions.” Id. at 129. In

departing from the recommended sentence, the court stated:

[Petitioner] used his position as insurance man for [the victim], a widow,

approximately 75 years of age, by endearing himself to the victim

including running errands for her, taking her lunch, and developed her

trust to such an extent that he induced her to advance him or his ill-fated

insurance company monies, to the tune of approximately $190,297.00. 

Part of these monies were used to set up an annuity by [Petitioner]. He

would call her at home and then stop by her residence when no one else

but him and the victim were present. He would then take monies out of

the annuity and use for his own purposes.

Pursuant to Florida Statute...the victim...as a widow was especially

vulnerable due to her age....She trusted [Petitioner] as her “insurance

agent” and he took advantage of her trust. It is clear to the Court that his

aforementioned actions of taking her shopping, etc. were designed to

develop and exploit the trust of an elderly person....

* * *

The Court finds further that Florida Statute 921.0016(3)(n) applies.

[Petitioner’s] actions did result in a substantial economic hardship to [the

victim]. He divested here of almost 100% of her life savings. This

“scheme to defraud” involved multiple incidents with this victim...namely

there were numerous cash and check advances given to [Petitioner]

totaling more than $190,000.00 and these occurred over approximately a

five (5) year period. [Petitioner] took advantage of her knowing she had

little or no family and endeared himself to her by “assisting her” in a highly

sophisticated scheme of his. Further, [Petitioner] used his position as an

insurance salesperson and insurance man for the victim, a position of

trust, confidence and a fiduciary relationship to her, to commit these

offenses. Had he not been her insurance agent, it is highly unlikely the

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No. 4:03cv19-spm/ak

victim would have lost her life savings in this matter. As such, Florida

Statute 921.0016(3)(j) and (n)(1), (2), (3) all are applicable in this matter,

and the Court relies on these statutes singularly and collectively as

grounds to depart the recommended sentence, by clear and convincing

evidence.

Id. at 129-130. 

Petitioner was received by the Florida Department of Corrections on June 24,

1998. Id. at 117. In setting Petitioner’s minimum release date and tentatively awarding

him incentive gain-time, FDOC applied Fla. Stat. Ann. § 944.275(4)(b)3, which provides: 

For sentences imposed for offenses committed on or after October 1,

1995, the department may grant up to 10 days per month of incentive

gain-time, except that no prisoner is eligible to earn any type of gain-time

in an amount that would cause a sentence to expire, end, or terminate, or

that would result in a prisoner’s release, prior to serving a minimum of 85

percent of the sentence imposed.

Fla. Stat. Ann. § 944.275(4)(b)3.

Petitioner appealed his conviction and sentence, raising various issues via both

an Anders brief and his own pro se brief. Doc. 13, App. at 4-10 & 15-32. In neither brief

did Petitioner directly challenge the sentencing court’s conclusion that the crime had

occurred over approximately a five-year period, although Petitioner did maintain in his

pro se brief that because his crimes were committed from 1993 through 1995, the court

should have used a 1993 score sheet, rather than the 1997 score sheet which caused

him “to Have to Serve 85% of His Sentence.” Id. at 4. The court of appeal summarily

affirmed. Id. at 1.

Petitioner then filed a petition for writ of habeas corpus. Id. at 39-60. On this

occasion, he made absolutely no mention about the court’s use of a five-year time

frame for the commission of the crime. The petition was summarily denied. Id. at 37.

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Petitioner next filed a Rule 3.850 motion for post-conviction relief, raising only an

issue of counsel’s ineffectiveness in failing to move to recuse the sentencing judge. Id.

at 74-87. The motion was denied, id. at 69-70, and that decision was affirmed on

appeal. Id. at 61.

Petitioner then filed a petition for writ of mandamus, arguing that FDOC had

improperly calculated his gain time. Id. at 91-106. More specifically, he maintained that

based on the dates in the arrest report and the date of the last check written by the

victim to Petitioner, he should have been awarded gain time based on §

944.275(4)(b)(1), which allows for an award of “up to 20 days of incentive gain-time” for

sentences imposed for offenses committed before January 1, 1994. Id. at 92. In

Petitioner’s estimation, the last offense occurred on May 26, 1995, rather than April 16,

1997, as charged in the information, and thus, he should not have been subject to the

85 percent gain time statute. Id. After considering the State’s response, the Court

found:

This Court concludes that the 85% statute...applies to the sentence

imposed for a scheme to defraud. A continuing offense is not committed

until the course of conduct has terminated or the defendant’s complicity in

the course of conduct has terminated. See § 775.15(4). Where a

continuing offense is charged, an inmate’s entitlement to gaintime is

based upon the gaintime statute in effect on the date the criminal activity

ceased. See Shurman v. Moore, 783 So.2d 1086 (Fla. 1st DCA 2001). A

scheme to defraud is a continuing offense. See § 817.034(3)(d); see also

State v. Grabarnick, 414 So.2d 1144 (Fla. 3rd DCA 1982) (where the crime

is one aimed at a scheme to defraud, the purpose is to punish a person

more harshly where the unlawful conduct is continuous, rather than a

single act). The fraud the petitioner was found guilty of committing did not

terminate until October 16, 1997. As a result, the scheme to defraud

[which] [Petitioner] was convicted of was not committed until October 16,

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The use of the October date appears to be a scrivener’s error, as the concluding

date charged in the information was April 16, 1997, not October 16, 1997, which is

approximately the same time that the victim went to police with her complaint. 

Furthermore, as Petitioner points out, by October, 1997, he was already in jail on these

charges. 

No. 4:03cv19-spm/ak

1997.3 Section 944.275(4)(b)3 applies to all sentences imposed for

offenses that were committed on or after October 1, 1995.

The decisions of Duer v. Moore, 765 So.2d 743 (Fla. 1st DCA 2000)

and Gilbert v. State, are distinguishable because those cases addressed

crimes that were not continuing in nature.

Id. at 142-43. Petitioner’s motion for rehearing was subsequently denied as untimely

and as an improper reargument of the claims raised in the original petition. Id. at 144-

45. Petitioner then sought a writ of certiorari, which was summarily denied. Id. at 146.

On this occasion, Petitioner argues that FDOC erred in applying the 85 percent

gain time statute to him because his offense was “completed and abandoned” no later

than October 26, 1995, when “the last check issued was anticipated.” Doc. 7 at 5-5A. 

Petitioner also claims a violation of due process based on the state court’s denial of his

motion for rehearing on the motion for writ of mandamus. Id. at 6-6A.

In response, Respondent concedes that the petition is timely and maintains that

Petitioner has exhausted the claim regarding the application of the 85 percent gaintime

statute. As to the second claim, Respondent maintains that exhaustion is not an issue

because the claim does not present a federal claim. In any event, according to

Respondent, Petitioner is not entitled to relief.

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DISCUSSION

Under 28 U.S.C. § 2254, a federal court may grant habeas corpus relief only if

the state court adjudication

(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).

Under the “contrary to” clause of § 2254(d), “a federal habeas court may grant

the writ if the state court arrives at a conclusion opposite to that reached by [the

Supreme] Court on a question of law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially indistinguishable facts.” Williams v.

Taylor, 529 U.S. 362, 412-13 (2000). “A state-court decision will certainly be contrary

to...clearly established precedent if the state court applies a rule that contradicts the

governing law set forth in [Supreme Court] cases.” Williams, 529 U.S. at 405. A statecourt decision will also be contrary to clearly established Supreme Court precedent “if

the state court confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme Court] and nevertheless arrives at a result different from [the

Court’s] precedent.” Id. at 406. 

Under the “unreasonable application” clause of § 2254(d), “a federal habeas

court may grant the writ if the state court identifies the correct governing legal principle

from [Supreme Court] decisions but unreasonably applies that principle to the facts of

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the prisoner’s case.” Id. at 413. The federal court considering a habeas petition “may

not issue the writ simply because that court concludes in its independent judgment that

the relevant state-court decision applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be unreasonable.” Id. at 412.

Further, in reviewing the decision of the state court, this Court must presume that

the state court’s factual determinations are correct, and the petitioner bears the burden

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

U.S.C. § 2254(e)(1).

The fact that the state court did not write “an opinion that explains the state

court’s rationale,” does not detract from the deference owed to that court’s decision. 

Wright v. Secretary for Department of Corrections, 278 F.3d 1245,1255 (11th Cir. 2002).

A “habeas petition grounded on issues of state law provides no basis for habeas

relief.” Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988). With regard to state

sentencing guidelines, the Eleventh Circuit has “consistently...held that federal courts

can not review a state’s alleged failure to adhere to its own sentencing procedures.” Id. 

“This limitation on federal habeas review is of equal force when a petition, which actually

involves state law issues, is ‘couched in terms of equal protection and due process.’” Id.

(citation omitted).

Regardless of how Petitioner tries to frame it, his claim that the state court

violated his due process rights in denying his motion for rehearing is without merit. The

court considered Petitioner’s arguments, in the first instance and on rehearing, and

found nothing in them to warrant relief or to justify a change in its original decision. 

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Petitioner was then allowed to challenge those decisions via a certiorari petition, and

that is all the due process to which he is entitled. The claim is without merit.

As to the remaining claim, i.e., that the wrong gaintime statute was applied to

Petitioner’s sentence thereby resulting in an impermissibly longer sentence, the Court

likewise finds no due process violation. The state court made a factual finding that the

scheme to defraud the victim lasted approximately five years. Although the sentencing

court did not elaborate, it is clear to this Court that in framing that five-year period, the

court believed the scheme to defraud the victim began in late 1992, when Petitioner

became the victim’s insurance agent and concluded in April, 1997, when the victim lost

faith and trust in Petitioner and went to the police to file a complaint. The court plainly

did not think that the scope of this scheme was limited to the dates on the checks which

the victim wrote to Petitioner. Similarly, the court which examined Petitioner’s

mandamus petition made a factual determination based on Florida state law that the

scheme to defraud was a continuing offense which did not terminate until the victim

complained to police in 1997, and thus, FDOC applied the proper gaintime statute to

Petitioner’s sentence. In this Court’s opinion, the record amply supports the courts’

determinations that this scheme continued beyond the dates on the checks and that it

did not conclude until the victim reported it in 1997. Thus, Petitioner is not entitled to

habeas relief on this claim.

In his reply Petitioner raises the issues that there was in improper variance in the

dates in the information and the proof at trial and that applying the 85% statute to him

violates the Ex Post Facto Clause. However, each of these arguments is without merit

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as it would require this Court to find that the state courts had made an unreasonable

determination of the facts in light of the evidence presented at trial. As indicated supra,

this Court does not believe that occurred in this case.

In light of the foregoing, it is respectfully RECOMMENDED that the amended

petition for writ of habeas corpus, Doc. 7, be DENIED, and this cause be DISMISSED

WITH PREJUDICE.

IN CHAMBERS at Gainesville, Florida, this 5TH day of May, 2005.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

 

 

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