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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KERRY S. CREAMER,

Petitioner,

v. CASE NO. 4:11-cv-91-MP-GRJ

SECRETARY, DEPT.

OF CORRECTIONS

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 1, Petitioner’s pro se Petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254, and Doc. 12, Respondent’s motion to

dismiss. The Petition stems from Petitioner’s 2009 nolo contendre plea to three

controlled-substance offenses in Franklin County, for which Petitioner received three

concurrent five-year sentences. Respondent contends that the Petition should be

dismissed because Petitioner has not exhausted his state remedies as to any of his

claims, and Petitioner currently is pursuing collateral relief from his convictions in state

court. Upon due consideration of the Petition, the motion to dismiss, and the statecourt record, the undersigned recommends that the Petition be dismissed without

prejudice so that Petitioner can exhaust his state remedies before returning to federal

court.1

State-Court Proceedings

Petitioner’s judgments were rendered on February 11, 2009. See Resp. Exh. A,

Because the Court may resolve the Petition on the basis of the record, the 1

Court has determined that an evidentiary hearing is not warranted. See Rule 8, Rules

Governing Habeas Corpus Petitions Under Section 2254. 

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B. On February 22, 2009, Petitioner moved to withdraw his plea. He subsequently

withdrew the motion at a hearing, at which he was represented by counsel. Exh. A, B,

C.

Petitioner appealed, and his appellate counsel filed an Anders brief asserting

that there were no meritorious issues for appeal. Petitioner filed a pro se brief arguing

that the prosecution engaged in misconduct by paying a confidential informant (CI) –

who was the only witness against Petitioner – for his testimony. Exh. E. The First DCA

affirmed without opinion on November 10, 2010. Exh. F. Rehearing was denied

January 28, 2011. Exh. G. The Florida Supreme Court dismissed his petition for

discretionary review on February 17, 2011. Exh. I. 

On March 17, 2011, Petitioner submitted a motion for postconviction relief under

rule 3.850. Exh. J. The postconviction court struck the motion as facially insufficient,

and gave Petitioner 30 days to file a sufficient motion. Exh. K. On June 17, 2011,

Petitioner filed an amended Rule 3.850 motion, arguing that his plea was involuntary

due to the ineffective assistance of counsel. Specifically, Petitioner argued that his

counsel was deficient for failing to inform Petitioner that the CI had accepted a bribe

and that the CI’s testimony against him could have been impeached, for failing to tell

the Petitioner about the prosecutorial misconduct in connection with the CI’s testimony,

for telling Petitioner that she did not have time to represent him, and for failing to pursue

an entrapment defense. Exh. L. The Rule 3.850 motion remains pending. See

Franklin County Criminal Docket, State v. Creamer, Case No. 08-CF-0107 (reflecting

case status as “reopened”, with Rule 3.850 motion pending). 

Petitioner filed the instant federal habeas corpus petition on February 28, 2011.

Case No: 4:11-cv-91-MP-GRJ

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Petitioner asserts four grounds for relief: (1) his due process rights were violated

because the state court did not give his attorney enough time to represent him; (2) his

conviction was based on bribed testimony and entrapment in violation of Florida law; (3)

his appellate counsel rendered ineffective assistance; and (4) his due process rights

were violated because of prosecutorial misconduct in connection with the CI’s

testimony, Doc. 1.

In the motion to dismiss, Respondent argues that Petitioner’s first claim is 

unexhausted and should be dismissed with prejudice because it is barred by

Petitioner’s nolo contendere plea. Respondent argues that Petitioner’s second claim is

barred by his plea and because he failed to raise it on direct appeal, and should be

dismissed with prejudice. Respondent argues that Petitioner’s third claim is

unexhausted, but that it should be dismissed without prejudice because Petitioner has

until January 28, 2013, to file a timely petition on the ground of ineffective assistance of

appellate counsel pursuant to Fla. R. App. P. 9.141(c). Respondent argues that

Petitioner’s fourth claim is unexhausted and barred by his plea, and that it should be

dismissed with prejudice. 

Petitioner opposes dismissal, relying primarily on his assertion that he is entitled

to relief on the merits of his claims. Docs. 14, 15, 16, 19. Petitioner has filed a “motion

for leave to file document,” Doc. 19, which the court construes as a motion to

supplement his responses in opposition to dismissal. That motion will be granted. 

Section 2254 Exhaustion Requirement

Habeas corpus relief may be granted only if Petitioner has properly exhausted

his federal claims in state court. § 2254(b)(1) and (c). To do so the federal claim must

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be fairly presented to the state court, to give the State the opportunity to pass upon and

correct alleged violations of federal rights. See Baldwin v. Reese, 541 U.S. 27, 29

(2004) (citations omitted); Duncan v. Henry, 513 U.S. 364, 365-366 (1995). A 2

petitioner “must give the state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State's established appellate review

process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

Petitioner is presently pursuing postconviction relief in the state court. 

Respondent correctly argues that none of Petitioner’s instant federal habeas claims are

exhausted, and therefore the Court agrees that dismissal is warranted. Although

Respondent argues that some of Petitioner’s claims are barred by his state-court plea,

the record reflects that Petitioner’s postconviction claims, if liberally construed,

challenge the validity of his plea. Given the pendency of Petitioner’s motion in state

court, the availability of an appeal if the motion is denied, and the availability of further

relief with respect to his ineffective-assistance-of-appellate-counsel claim, the Court

concludes that the Petition should be dismissed without prejudice.

As to any future § 2254 petition (following one complete round of exhaustion as

to all claims raised), Petitioner is advised that there is a one year time limit for filing a 3

While it is not necessary that the petitioner cite “book and verse” of the 2

Constitution, the state court must be alerted to the fact that a federal constitutional

claim is raised. Duncan, 513 U.S. at 365-366 (citations omitted); see also McNair v.

Campbell, 416 F.3d 1291, 1303 (11th Cir.2005) (holding that a petitioner must “do more

than scatter some makeshift needles in the haystack of the state court record”)

(citations omitted).

Petitioner is advised that the “one complete round” exhaustion requirement of

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O'Sullivan applies to post-conviction review; if he is denied post conviction relief he

must appeal that ruling in order to properly exhaust state remedies. Leonard v.

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§ 2254 petition, which runs from “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review,” absent

circumstances triggering a later commencement date. § 2244(d)(1)(A)-(D). The period 4

is tolled for “[t]he time during which a properly filed application for State post-conviction

or other collateral review with respect to the pertinent judgment or claim is pending.”

§ 2244(d)(2). 

Conclusion and Recommendation

Petitioner’s motion, Doc. 19 is GRANTED. For the foregoing reasons it is

respectfully RECOMMENDED that Respondent’s motion to dismiss, Doc. 12, be

GRANTED, that the Petition, Doc. 1, be DISMISSED WITHOUT PREJUDICE, and that

a certificate of appealability be DENIED.

IN CHAMBERS in Gainesville, Florida, on February 10, 2012.

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

Wainwright, 601 F.2d 807, 808 (5th Cir.1979) (Florida prisoner must appeal denial of

Fla.R.Crim.P. 3.850 relief to exhaust remedies); LeCroy v. Secretary, 421 F.3d 1237,

1261 (11th Cir.2005) (as Florida prisoner failed to properly exhaust claim on direct

appeal or Rule 3 .850 appeal, it was procedurally barred); Pope v. Rich, 358 F.3d 852,

854 (11th Cir.2004) ( “Boerckel applies to the state collateral review process as well as

the direct appeal process”).

Based upon the current record as presented by the Respondent, Petitioner’s 4

conviction became final 90 days after February 17, 2011, when his direct review

concluded and the time for filing a petition for a writ of certiorari in the Supreme Court

expired. See Bond v. Moore, 309 F.3d 770 (11 Cir. 2002) (Petitioner has ninety days th

to seek certiorari in Supreme Court after direct review in state courts). Petitioner

initiated postconviction proceedings on March 17, 2011, and such proceedings remain

pending. Thus, it does not appear that the dismissal of the instant Petition will

disadvantage Petitioner with respect to the one-year federal limitations period.

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NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

Case No: 4:11-cv-91-MP-GRJ

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