IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL CLEMENTE JOHNSON, 

Petitioner, 

vs. Case No. 4:11cv202-MP/CAS

SECRETARY KENNETH S. TUCKER,1

Respondent. 

_________________________________/

REPORT AND RECOMMENDATION TO DENY MOTION TO DISMISS 

OR STAY § 2254 PETITION AND DIRECT RESPONSE

On May 6, 2011, Petitioner Michael Clemente Johnson filed a petition for writ of

habeas corpus under 28 U.S.C. § 2254. Docs. 1 and 2. Petitioner challenges his

conviction and sentence, imposed by the Fourth Judicial Circuit, in and for Duval

County, Florida, following a jury trial, for one count of sale or delivery of cocaine, in

violation of section 893.13(1), Florida Statutes (2008). Doc. 1 at 1-2. Petitioner raises

two grounds in his § 2254 petition. Id. at 5-7. Ground 1 presents a challenge to his

1

Kenneth S. Tucker succeeded Edwin G. Buss as Secretary of the Department of

Corrections and is automatically substituted as the Respondent. See Fed. R. Civ. P. 25(d).

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conviction as a violation of federal constitutional law because the imposition of felony

punishment for an offense that lacks mens rea violates due process. Id. at 5. 

Ground 2 presents the same challenge to Petitioner’s sentence. Id. at 6.

Procedural History

By order issued May 12, 2011, this Court noted jurisdiction is appropriate in this

district as well as in the Middle District of Florida, as the districts of confinement and

conviction, respectively. Doc. 4. This Court directed Respondent to file an answer,

motion, or other response. Id. 

Respondent filed a motion to transfer this case to the Middle District of Florida. 

Doc. 5. This Court directed Petitioner to respond, (Doc. 6), and Petitioner filed a

response on July 8, 2011 (Doc. 7). On July 11, 2011, this Court denied the motion to

transfer. Doc. 8. Respondent filed motions for reconsideration, to which Petitioner filed

a response. Docs. 9, 10, 13, 14. By order dated October 21, 2011, the district court

denied the motion for reconsideration and upheld the order denying the motion to

transfer. Doc. 16. Given that determination, Respondent was directed to file an answer

or other response to the § 2254 petition. See Docs. 12 and 16. 

On November 1, 2011, Respondent filed a motion to dismiss or stay the § 2254

petition. Doc. 17. In this motion, Respondent asserts Ground 1 raises only a matter of

state law, not cognizable in this federal proceeding, citing decisions in Williams v. State,

45 So. 3d 14 (Fla. 1st DCA 2010), review denied, 53 So. 3d 14 (Fla. 2011), Flagg v.

State, 74 So. 3d 138 (Fla. 1st DCA 2011), and Shelton v. Secretary, Department of

Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011), among others. Doc. 17 at 3-7. 

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Respondent further asserts the dismissal of Ground 1 moots Ground 2. Id. at 8. 

Finally, Respondent indicates the Shelton case decided the same issue raised in the

instant § 2254 motion, and asserts that because the Shelton case is currently on appeal

to the Eleventh Circuit, this Court should stay this proceeding. Id. at 1, 8-9. 

Respondent also requests this Court stay this proceeding until the Florida Supreme

Court issues a decision in State v. Adkins, 71 So. 3d 184 (Fla. 2d DCA), jurisdiction

accepted, 71 So. 3d 117 (Fla. 2011). Doc. 17 at 1, 8-9. 

Petitioner filed a response to the motion to dismiss or stay. Doc. 18. Petitioner

asserts that, although state law decisions hold that the offense at issue is a general

intent crime, that issue is not purely a state law question. Id. at 1. Petitioner also cites

Chicone v. State, 684 So. 2d 736 (Fla. 1986), and asserts the state law is not as clear

as Respondent suggests. Id. at 2. Petitioner points out that Respondent’s arguments

are more appropriate for an answer, rather than a motion to dismiss. Id. Finally,

Petitioner asserts that the pendency of Shelton in the Eleventh Circuit provides no basis

for staying this proceeding because, among other things, one argument raised there is

that the issue was not preserved for federal review and thus Shelton may be decided on

procedural grounds. Id. 

On March 7, 2012, Respondent filed a Notice of Supplemental Authority,

submitting the decision in United States v. Watson, 461 F. App’x 887 (11th Cir. 2012). 

in support of the motion to dismiss or stay. Doc. 19. Petitioner filed a response to this

notice, urging Respondent’s reliance on Watson is misplaced. Doc. 20. 

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Analysis

Given the recent decisions concerning section 893.13(1), in Florida state and

federal courts, the undersigned declines to find, on a motion to dismiss, that the issue

raised in the § 2254 petition presents only an issue of state law. See Shelton, 802 F.

Supp. 2d at 1297 (finding section 893.101 facially unconstitutional as violative of due

process clause in U.S. Constitution); see also United States v. Bunton, 2011 WL

5080307 (M.D. Fla. Oct. 26, 2011) (noting criticism of Shelton decision, observing that

“[t]he main shortcoming in the Florida courts’ criticism of Shelton is that they do not

address the federal due process concerns in any detail,” distinguishing offense at issue

in Shelton as involving delivery of illegal substance and not possession, and ultimately

concluding section 893.13 is not facially unconstitutional because, even without mens

rea requirement, it satisfies due process because State must still prove defendant had

knowledge of his possession of substance). 

Further, as to the motion for a stay, because the Florida Supreme Court’s

decision in Adkins, although controlling as a determination of state law, will not control

this Court’s analysis of a claim based on federal law, this proceeding should not be

stayed pending the conclusion of that case. See, e.g., Sims v. Singletary, 155 F.3d

1297, 1308 (11th Cir. 1998) (“We will not challenge a state court’s determination of state

law.” (citing Stringer v. Black, 503 U.S. 222, 235 (1992) (“It would be a strange rule of

federalism that ignores the view of the highest court of a State as to the meaning of its

own law.”))); Williams v. Florida, 109 F. Supp. 2d 1372, 1373 (S.D. Fla. 2000)

(explaining that Florida Supreme Court decision, to the extent it interprets U.S.

Constitution, is not binding in federal court). Finally, because Shelton may be decided

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on an issue that does not affect the instant petition, this proceeding should continue

notwithstanding the pending appeal in the Eleventh Circuit in that case. 

Recommendation

It is therefore respectfully RECOMMENDED that Respondent’s motion to dismiss

or stay (Doc. 17) be DENIED, Respondent be directed to file an Answer to the § 2254

petition within thirty (30) days of entry of the order adopting this recommendation, and

Petitioner directed that he may file a Reply within thirty (30) days after service of the

Answer. 

IN CHAMBERS at Tallahassee, Florida on June 5, 2012.

 S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Within 14 days after being served with a copy of this report and

recommendation, a party may serve and file specific, written objections to the

proposed findings and recommendations. 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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