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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

SIDNEY MARTS,

Petitioner,

vs. Case No. 3:10cv240/LAC/EMT

EDWIN G. BUSS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

This matter is before the court on Petitioner’s amended petition for writ of habeas corpus

filed pursuant to 28 U.S.C. § 2254 (Doc. 10). Respondent filed a motion to dismiss the petition for

lack of jurisdiction (Doc. 37). Petitioner filed a response in opposition to the motion (Doc. 40).

Upon thorough review, the court concludes that the motion to dismiss should be granted to

the extent that the amended petition should be dismissed without prejudice, and Petitioner given an

opportunity to properly present his claims in a second amended petition.

Following a jury trial, Petitioner was convicted in the Circuit Court in and for Escambia

County, Florida, Case No. 2007-CF-6067, of one count of grand theft, one count of uttering a forged

instrument, and one count of fraudulent use of a credit card (Doc. 10 at 1; Doc. 37 at 1). He was

sentenced to three consecutive terms of five years of imprisonment (Doc. 10 at 1). He directly

appealed his conviction and sentence to the Florida First District Court of Appeal (“First DCA”),

Case No. 1D08-4577 (id. at 2). The First DCA affirmed the judgment per curiam without written

opinion on December 23, 2009. See Marts v. State, 25 So. 3d 1227 (Fla. 1st DCA 2009) (Table).

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Petitioner filed the instant federal habeas action on July 2, 2010 (Doc. 1).1 In his amended

petition he asserts one ground for relief, that is, that the customs, practices, and procedures employed

by the Florida courts in criminal cases are inadequate, in violation of 28 U.S.C. §

2254(b)(1)(B)(i)(ii) and the Fourteenth Amendment (Doc. 10 at 7).2

 In support of his claim, he

asserts state court judges, public defenders, prosecutors, and the Florida attorney general’s office

have abolished the following rights and procedures to which criminal defendants are entitled:

(1) a probable cause hearing within 48 hours, 

(2) adequate notice of the nature of the charges through a formal arraignment, 

(3) pre-trial discovery, 

(4) “adversary preliminary examinations for confrontation,” 

(5) pre-trial depositions,

(6) pre-trial procedures to determine “probable cause on classification of

felony charges” and “probable cause on admissibility of evidence for classification

of felony information/custody,”

(7) Sixth Amendment right to counsel,

(8) Sixth Amendment right to self-representation,

(9) Sixth Amendment right to a speedy trial,

(10) Fifth Amendment double jeopardy protection,

(11) Sixth Amendment right to a public trial,

(12) due process right to an impartial judge;

(13) First Amendment right to access the courts,

(14) Fourteenth Amendment due process right to a competency hearing,

(15) codes of professional conduct governing prosecutors, judges, and

attorneys,

(16) writs of habeas corpus,

(17) the State’s constitutional obligation to respond to petition and motions,

(18) trial and appellate judges’ constitutional obligation to conduct

independent research and investigation of state court records for determination of

error,

(19) substantive rules governing admissibility of evidence,

1 Prior to filing his federal petition, and while it has been pending, Petitioner apparently filed over nine

applications for post-conviction relief in the First DCA and the Florida Supreme Court, all of which were denied (see

Doc. 40 at 4). On January 24, 2011, the First DCA sanctioned Petitioner for abuse of the legal process by barring

any future pro se filings in the First DCA concerning his criminal case, unless such filings are signed by a member in

good standing of The Florida Bar (see Doc. 40, Attach. 1). See Marts v. State, — So. 3d —, 2011 WL 198386, at *1

(Fla. 1st DCA 2011).

2 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those the parties may have assigned.

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(20) substantive rules of criminal law and procedure governing judicial

protocol in processing criminal cases,

(21) Florida Rules of Appellate Procedure,

(22) Fourteenth Amendment due process right to review of convictions (by

appellate courts issuing per curiam decisions without written opinions),

(23) First and Ninth Amendment right to petition state court for redress by

application for discretionary review to the Florida Supreme Court (by limiting the

Florida Supreme Court’s review of per curiam decisions of appellate courts),

(24) state statutory provisions governing classification of offenses and

penalties for misdemeanors, and

(25) state statutory provisions governing affirmative defenses in criminal

cases involving charges of attempt.

(id. at 7–11). Petitioner contends the aforementioned violations divest the state courts of subject

matter jurisdiction to review criminal judgments on direct and collateral review (id. at 8). He states

he is “reserving” additional habeas claims pending resolution of Ground One (id. at 7, 12). As relief,

he seeks a determination that state procedures are inadequate and an order discharging him from

custody (id. at 13). 

In Petitioner’s supporting memorandum, he asserts that the lack of an adequate state

corrective process constitutes a structural defect which divests the state courts of jurisdiction to

review his conviction and vests the federal courts with jurisdiction to conduct habeas review (Doc.

11 at 1–3). He states, with emphasis, “the habeas corpus [petition] does not challenge conviction,

but adequacy of state court procedures, which exempts exhaustion doctrine because its [sic]

inapplicable.” (id. at 3). He asserts his allegations present exceptional circumstances which override

interests of comity and demonstrate that any application for relief in state court would be futile (id.

at 3–4). He asks the court to make a “threshold determination” of the adequacy of state court

procedures under § 2254(b)(1)(B)(i)(ii) (id. at 3, 5). 

Respondent contends the petition should be dismissed for lack of jurisdiction because

Petitioner failed to present a claim cognizable in habeas corpus (Doc. 37). Respondent argues

Petitioner himself describes his petition as not presenting a challenge to his conviction but to the

adequacy of state court procedures, which is not a cognizable basis for habeas relief (id. at 2–7). 

Respondent further argues Petitioner does not include factual allegations showing that his judgment

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of conviction and sentence was obtained in violation of his federal constitutional rights (id.). 

Therefore, the petition should be dismissed.

In Petitioner’s response to the motion to dismiss, he makes some specific arguments relating

to the validity of his conviction, including: (1) his conviction for grand theft is unconstitutional

because the prosecutor conceded to suppression of a bank withdrawal slip on Fourth Amendment

grounds, which constituted a nolle prosequendum of the charge; (2) his due process rights were

violated when he was committed to a mental health facility without a competency hearing or a report

from a mental health expert; and (3) the evidence was insufficient to support his conviction for grand

theft (Doc. 40 at 2–6).3

 He additionally repeats his argument that state court procedures are

inadequate under § 2254(b)(1)(B)(i, ii) (id. at 7–10).

The undersigned agrees with Respondent that Petitioner has not properly presented a claim

for habeas relief under § 2254. In his amended petition, he does not assert facts demonstrating that

his conviction and sentence were obtained in violation of his federal constitutional rights. Instead,

he propounds general constitutional challenges to state court procedures and argues these

deficiencies excuse him from the exhaustion requirement set forth in § 2254(b)(1)(B). Although

Petitioner raises more specific challenges to his grand theft conviction in his response to

Respondent’s motion to dismiss, this does not constitute proper presentation of his habeas claims. 

To properly raise a claim for habeas relief, Petitioner must set forth all grounds on which he claims

he is being held in violation of the Constitution or federal law, and he must provide a summary of

specific facts in support of each ground in his habeas petition. Petitioner has not done so.

Additionally, Petitioner’s contention that state procedures are inadequate under 28 U.S.C.

§ 2254(b)(1)(B) does not state a basis for habeas relief. Section 2254(b) provides:

(1) 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 unless it appears that—

 (A) the applicant has exhausted the remedies available in the courts of the State;

or 

3 The undersigned has done her best to glean and articulate Petitioner’s arguments from his largely

incomprehensible pleadings. 

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 (B) (i) there is an absence of available State corrective process; or 

 (ii) circumstances exist that render such process ineffective to protect the rights of

the applicant.

28 U.S.C. § 2254(b). This provision does not, of itself, provide a basis for relief; it merely sets forth

the exhaustion requirement and circumstances under which a petitioner may be excused from

fulfilling that requirement.

Furthermore, Petitioner’s request for a judicial determination that he is entitled to be excused

from the exhaustion requirement is premature. The exhaustion requirement is not jurisdictional. 

See Rose v. Lundy, 455 U.S. 509, 515–20, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). It may be

waived by the State. See Davis v. Dagger, 829 F.2d 1513, 1521 (11th Cir. 1987). Upon Petitioner’s

properly presenting habeas claims, the State will be required to file an answer addressing the

exhaustion issue as to each claim. If the State asserts Petitioner failed to exhaust certain or all

claims, Petitioner will be provided an opportunity to argue the exhaustion issue, including the

argument that he should be excused from the exhaustion requirement because state process is

unavailable or ineffective. Until that time, the court will not consider the exhaustion issue.

Finally, to the extent Petitioner challenges the process afforded him in state collateral

proceedings, he is not entitled to relief. It is well established in the Eleventh Circuit that a § 2254

court is not an appropriate forum for a prisoner to assert such challenges. This is so, because such

a claim represents an attack on a proceeding collateral to the prisoner’s confinement and not the

confinement itself. See Quince v. Crosby, 360 F.3d 1259, 1261–62 (11th Cir. 2004) (affirming

district court’s denial of habeas relief based on state court judge’s refusal to recuse himself from the

Rule 3.850 hearing, explaining “while 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.”); Spradley v. Dagger, 825 F.2d 1566, 1568 (11th Cir. 1987) (per curiam)

(concluding § 2254 claim that petitioner’s due process rights were violated when state

post-conviction court held no evidentiary hearing and failed to attach appropriate portions of record

to its opinion “goes to issues unrelated to the cause of petitioner’s detention [and] does not state a

basis for habeas relief”). Therefore, to the extent Petitioner challenges only the process afforded him

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in the state collateral review proceeding and does not present a constitutional challenge to

Petitioner’s confinement, it does not provide a basis for federal habeas relief.

For the aforementioned reasons, the undersigned concludes Respondent’s motion to dismiss

should be granted, though not on jurisdictional grounds. Petitioner’s filings, specifically, his

response to the motion to dismiss, suggest he may be able to plead facts that state a cognizable

claim for habeas relief. Therefore, while the amended petition is subject to dismissal for Petitioner’s

failure to properly present grounds demonstrating a basis for habeas relief, he should be provided

an opportunity to properly present his claims in a second amended petition.

Accordingly, it is respectfully RECOMMENDED:

1. That Respondent’s motion to dismiss (Doc. 37) be GRANTED on the ground that

the amended petition fails to properly present grounds demonstrating a basis for habeas relief.

2. That the amended petition for writ of habeas corpus (Doc. 10) be DISMISSED

without prejudice to Petitioner’s filing a second amended petition.

3. That his matter be referred to the assigned magistrate judge for issuance of an order

directing Petitioner to file a second amended petition.

4. That Petitioner be instructed not to file a second amended petition until directed to

do so by the assigned magistrate judge.

At Pensacola, Florida, this 20th day of May 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (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. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States

v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988). 

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