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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL CLEMENTE JOHNSON, 

Petitioner,

v. CASE NO. 4:11cv202-MP-CAS

KENNETH S TUCKER, 

Respondent.

 /

O R D E R

This cause comes on for consideration upon the magistrate judge's Report and

Recommendation dated June 5, 2012 (doc. 22), recommending that the motion to dismiss

the habeas petition or stay the case be denied. The parties have been furnished a copy

of the Report and Recommendation and have been afforded an opportunity to file

objections pursuant to Title 28, United States Code, Section 636(b)(1). The respondent

filed objections and a motion for reconsideration (doc. 23), and I have made a de novo

review of the objected to material. Having considered the Report and Recommendation,

and any objections thereto timely filed, I have determined that the Report and

Recommendation should be rejected and the motion to dismiss granted.

Petitioner was convicted in Duval County of one count of violating Fla. Stat.

§ 893.13(1)(a)(1), which makes it a second degree felony to "sell, manufacture, or deliver,

or possess with intent to sell, manufacture, or deliver" controlled substances (in this case,

cocaine.) Petitioner challenges that conviction on two grounds, each of which are related

to the constitutionality of Fla. Stat. § 893.101. That section provides that lack of knowledge

of the illicit nature of the substance possessed is an affirmative defense rather than

knowledge of the illicit nature of the substance being an element of the offense. 

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The constitutionality of § 893.101 was decided in July 2012, by the Florida Supreme

Court in State v. Adkins, 2012 WL 2848903 (Fla. July 12, 2012), in which the court upheld

the constitutionality of the provision. In Adkins, the court examined the history of criminal

statutes that omitted a scienter requirement and were nonetheless constitutional as

compared to those statutes where the lack of scienter rendered them unconstitutional. 

The court explained that § 893.101 fell within the former because 1) it punished an

affirmative act -- possessing or delivering controlled substances -- rather than merely a

passive activity, such as simply being a felon present in a city more than five days; and 2)

the provision did not threaten to chill otherwise protected activities, as would a law making

possession of child pornography illegal without requiring knowledge of the age of the

performers (under which a video seller could only feel safe selling movies he had reviewed

ahead of time and so might decline to sell otherwise legal videos). On August 24, 2012,

the Eleventh Circuit Court of Appeals decided Shelton v. Secretary, Department of

Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011) and held that Adkins was not an

unreasonable application of federal law. The district court in Shelton had determined that

Fla. Stat. § 893.101 was facially unconstitutional because (1) its penalties are too harsh

to allow omission of a mens rea requirement, (2) violations lead to substantial social stigma

and so mens rea is required, and (3) it reaches inherently innocent conduct without a mens

rea component. On appeal, the Eleventh Circuit found that the district court had failed to

give the proper deference under the AEDPA to the state courts' adjudication of the issue. 

Specifically, the Eleventh Circuit held that the Florida Supreme Court's adjudication of the

facial constitutionality of § 893.101 on the merits in Adkins was not “contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court.” Shelton v. Sec'y, Dept. of Corrections, 2012 WL 3641008 (August 24,

2012). The panel concluded that "nothing in the U.S. Reports decides or implies resolution

of the novel issue of the Florida Act's constitutionality, and we cannot find Florida's

adjudication to be unreasonable under AEDPA." Id. at *5. The decision in Shelton is

binding on this court and completely forecloses the claims brought by petitioner. 

Case No: 4:11cv202-MP-CAS

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Accordingly, it is now ORDERED as follows: 

1. The magistrate judge’s Report and Recommendation is rejected. 

2. The motion to dismiss (doc. 17) is GRANTED, and the petition is DISMISSED

with prejudice.

DONE and ORDERED this 25th day of September, 2012.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

Case No: 4:11cv202-MP-CAS

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