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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MICHELLE NEZOVICH,

Petitioner,

vs. Case No. 3:11cv46/LC/CJK

KENNETH S. TUCKER,

Respondent.

___________________________________________________________________

REPORT AND RECOMMENDATION

Before the Court is an amended petition for writ of habeas corpus filed under

28 U.S.C. § 2254. (Doc. 6). On November 4, 2011, respondent moved to dismiss the

petition for lack of exhaustion. (Doc. 23). Petitioner has not responded, although

given the opportunity to do so. (Doc. 25). The matter is referred to the undersigned

magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and

N.D. Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes

that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of

the Rules Governing Section 2254 Cases in the United States District Courts. The

undersigned further concludes that the pleadings and attachments before the Court

show that petitioner has not exhausted her state court remedies, and that the amended

petition should be dismissed.

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BACKGROUND AND PROCEDURAL HISTORY

On October 18, 2010, petitioner was convicted of two counts of drug

trafficking and three counts of selling cocaine in the Circuit Court for Escambia

County, Florida. (Doc. 6, p. 1; Doc. 23, Ex. A). The convictions were pursuant to

petitioner’s counseled no contest pleas. (Id.). Petitioner wassentenced to concurrent

fifteen-year terms of imprisonment. (Id.). Petitioner timely filed a notice of appeal

in the Florida First District Court of Appeal (“First DCA”). The appeal was assigned

Case No. 1D-10-6045. (Doc. 23, Ex. C). 

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On January 3, 2011, petitioner filed her original federal habeas petition in this

Court. (Doc. 1). An amended petition was filed on February 15, 2011. (Doc. 6). 

Petitioner’s amended petition raises five grounds for relief, including claims that

petitioner was deprived of her right to a speedy trial, denied effective assistance of

counsel, coerced into entering her pleas, entrapped, and punished excessively. (Id.,

pp. 4-5, 8). Petitioner states that none of her claims have been raised in state court,

explaining that “appeal lawyer plans to dis-miss [sic] case.” (Id., pp. 4-5). 

Back in state court, on February 23, 2011, petitioner’s appellate counsel filed

an Anders brief in petitioner’s direct appeal. (Ex. C). Appellate counsel

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simultaneously moved to permit petitioner to file a pro se brief, which the First DCA

granted. (Exs. D, E). Petitioner filed a pro se Initial Brief on March 30, 2011. (Ex.

F). On August 12, 2011, appellate counsel moved to withdraw her Anders brief and

file an amended initial brief. (Ex. G). On August 31, 2011, the Anders brief, the

Hereafter, all references to exhibits will be to those provided at Doc. 23, unless otherwise 1

noted.

Anders v. State of Cal., 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 2

Case No: 3:11cv46/LC/CJK

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order permitting a pro se initial brief and petitioner’s pro se Initial Brief were

stricken, and appellate counsel was given until September 19, 2011, to serve the

Initial Brief. (Ex. H). Appellate counsel filed an Amended Initial Brief on September

7, 2011, raising one issue: that petitioner’s convictions and sentences must be set

aside because the drug statutes under which petitioner was convicted are facially

unconstitutional. (Ex. A). Respondent asserts, and petitioner does not dispute, that

petitioner’s direct appeal is still pending, that petitioner has not filed a motion for

postconviction relief in the state court, and that the time for filing a postconviction

motion has not yet begun to run. (Doc. 23, pp. 1-2). The First DCA’s online docket

sheet confirms that petitioner’s direct appeal is still pending. (See www.1dca.org,

case number 1D10-6045). 

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DISCUSSION

Title 28 U.S.C. § 2254(b)(1) provides:

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

(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.

Title 28 U.S.C. § 2254(c) provides that: “An applicant shall not be deemed to have

exhausted the remedies available in the courts of the State, within the meaning of this

The court takes judicial notice of information on the State of Florida First District Court of 3

Appeal website, see www.1dca.org. 

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section, if he has the right under the law of the State to raise, by any available

procedure, the question presented.” In order to properly exhaust state remedies, “state

prisoners 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, 119 S. Ct. 1728, 1732, 144 L.

Ed. 2d 1 (1999). Generally, failure to exhaust is grounds for dismissal of the petition. 

Keeney v. Tamayo-Reyes, 504 U.S. 1, 10, 112 S. Ct. 1715, 1720, 118 L. Ed. 2d 318

(1992). Because the record demonstrates that petitioner has not exhausted the

remedies available to her in the state courts, this case should be dismissed without

prejudice to enable petitioner to satisfy § 2254's exhaustion requirement.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts provides: “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” If a certificate is

issued, “the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed,

even if the court issues a certificate of appealability. Rule 11(b), Rules Governing

Section 2254 Cases.

The petitioner in this case fails to make a substantial showing of the denial of

a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

483-84, 120 S. Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000) (explaining the meaning

of this term) (citation omitted). Therefore, it is recommended that the Court deny a

certificate of appealability in its final order.

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The second sentence of Rule 11(a) provides: “Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate should

issue.” Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to

this recommendation by either party, that party may bring such argument to the

attention of the district judge in the objections permitted to this report and

recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That respondent’s motion to dismiss (doc. 23) be GRANTED.

2. That the amended petition for writ of habeas corpus (doc. 6) be

DISMISSED WITHOUT PREJUDICE.

3. That the clerk be directed to close the file.

4. That a certificate of appealability be DENIED.

At Pensacola, Florida this 30th day of December, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. 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 any objections shall be served upon any 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 (11 Cir. 1988). th

Case No: 3:11cv46/LC/CJK

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