Nicholas Salerno v. Secretary, Florida Dept. of Co

Filing

Opinion issued by court as to Appellant Nicholas Salerno. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14459
Non-Argument Calendar
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D.C. Docket No. 5:11-cv-00402-WTH-PRL

NICHOLAS SALERNO,
Petitioner–Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents–Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 23, 2016)
Before MARCUS, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Petitioner Nicholas Salerno, a Florida state prisoner, appeals the district
court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We agree with the
district court that habeas relief is not warranted, and thus affirm.
I. BACKGROUND
Petitioner was charged in 2003 with one count of lewd and lascivious
molestation of a child less than twelve years old, two counts of capital sexual
battery on a child less than twelve years old, and three counts of using a child in a
sexual performance. 1 The molestation count alleged that Petitioner intentionally
touched the genitals of a victim in a “lewd and lascivious manner” in violation of
Fla. Stat. § 800.04(5)(a) and (b). The sexual battery counts alleged that Petitioner
caused his penis to “unite with or penetrate the vagina and/or anus” of two victims
in violation of Fla. Stat. § 794.011(2)(a). The sexual performance counts alleged
that Petitioner employed or induced three victims to “engage in a sexual
performance” in violation of Fla. Stat. § 827.071(2). All of the charges stemmed
from a video Petitioner and his wife made showing Petitioner performing sexual
acts with three girls who were between the ages of eight and ten when the charges
were brought and several years younger when the video was made.

1

The charging document was amended in April 2004 to clarify that the sexual battery counts
constituted capital sexual battery.
2

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Petitioner entered into a plea agreement in which he agreed to plead nolo
contendere to two counts of attempted capital sexual battery, which is a lesser
included offense of capital sexual battery, one count of lewd and lascivious
molestation, and three counts of using a child in a sexual performance. As part of
the agreement, Petitioner admitted a violation of probation concerning a prior lewd
and lascivious molestation charge. The agreement stated that Petitioner would be
adjudicated guilty as to all counts and sentenced to a total of 35 years in prison,
followed by 10 years of sex-offender probation. Petitioner acknowledged by
signing the agreement that he fully understood the charges against him, that there
were sufficient facts to support the charges, and that he did not contest the charges.
He further affirmed that his attorney had discussed with him any available defenses
and that he was satisfied with his attorney’s advice.
The trial court subsequently conducted a plea hearing, during which
Petitioner stated under oath that he understood the rights he was waiving by
entering the plea, such as the right to a jury trial and the right to appeal if he was
found guilty. Petitioner affirmed at the hearing that he was satisfied with the
advice provided by his attorney, and he acknowledged that he understood the terms
of the plea and was entering the plea freely and voluntarily. The trial court noted
that the court and the parties had discussed the case numerous times, and it found
that the plea was freely and voluntarily entered and supported by a factual basis.
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The trial court later conducted a sentencing hearing, during which it clarified
that Petitioner would be sentenced to 30 years for one of the attempted sexual
battery charges, the maximum sentence for that offense, plus 5 consecutive years
for Petitioner’s admitted probation violation, to be followed by 10 years of sexoffender probation for the second attempted sexual battery. After he was placed
under oath at the sentencing hearing, Petitioner argued that he was told he would
receive no sentence for the probation violation, and he complained about the
quality of his legal representation. He also stated that he had asked, but not been
given, the opportunity to “see the elements of the crime” and that he could not
plead guilty to every element because he did not know what the elements were.
The trial court responded by asking whether Petitioner had seen the video of his
offenses, and Petitioner said that he had. The trial court said that it had also seen
the video, which “offered all the elements.”
The trial court then asked Petitioner whether he had any other problems with
his attorney’s representation. Petitioner said the only problem he had was with the
sentence on the probation violation. The court reiterated that Petitioner had freely
and voluntarily entered a plea agreement providing for a total sentence of 35 years
in prison, and he adjudged Petitioner guilty as to all of the charges listed in the plea
agreement. To address Petitioner’s stated concern, the court sentenced him as
follows: (1) time served on the probation violation, (2) 30 years on one of the
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attempted sexual battery charges, (3) 5 years on one of the lewd and lascivious
molestation charges, to run consecutively with the 30 years, (4) 10 years of sexoffender probation for the second sexual battery charge, to begin at the conclusion
of the 35-year prison sentence, and (5) 10 years of regular probation for the
remaining convictions, to run concurrently with the sex-offender probation. The
sentence was what Petitioner had agreed to in the plea agreement, except that it
included an additional 10 years of probation running concurrently with the sexoffender probation.
Petitioner did not directly appeal his convictions or sentence, but he filed a
state post-conviction motion under Fla. R. Crim. P. 3.850. Among other asserted
grounds for relief, Petitioner argued that he involuntarily entered into the plea
agreement due to his attorney’s poor advice and coercion. In support of that
ground, Petitioner claimed that he was not informed of the elements of the offenses
he was charged with committing. A Florida trial court denied Petitioner’s Rule
3.850 motion, finding that the record conclusively showed his plea was voluntary.
The Florida Court of Appeal affirmed the denial.
Petitioner subsequently filed a motion to vacate his judgment and sentence
pursuant to Fla. R. Crim. P. 3.800. In support of his motion, Petitioner argued that
his sentence violated the plea agreement because he did not agree to multiple
probation sentences, which left him exposed to a longer imprisonment term if he
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violated probation. A Florida trial court granted this motion in part, and Petitioner
was resentenced as follows: (1) 30 years on one of the attempted sexual battery
counts, (2) 5 years each on the lewd and lascivious molestation and sexual
performance counts, to run concurrently with each other and consecutively to the
30-year sexual battery sentence, and (3) one 10-year term of sex-offender
probation on the remaining sexual battery count, to begin at the conclusion of
Petitioner’s 35-year prison sentence. The Florida Court of Appeals affirmed the
resentencing in July 2010. See Salerno v. State, 43 So. 3d 64 (Fla. 5th DCA 2010).
Petitioner filed this federal § 2254 petition on July 14, 2011.2 He asserted
numerous grounds for relief, including a claim that his plea was not voluntary
because he was not informed of the elements of the offenses he was charged with
committing. The district court denied the petition in its entirety and declined to
issue a certificate of appealability (“COA”). This Court granted a COA limited to
the following issue: “Whether the state court’s decision was contrary to, or an
unreasonable application of, federal law when it denied [Petitioner’s] claim that his
due process rights were violated when he was not informed of the elements of the

2

The State acknowledged in its response that, excluding the time tolled by pending state
appeals, the petition was filed within the one-year limitations period following Petitioner’s
resentencing. See Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286, 1292–93 (11th Cir. 2007)
(“[T]he period begins to run when both the conviction and sentence are final.”) (emphasis in
original).
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charges against him before pleading guilty.” Having now considered that issue, we
agree with the district court that federal habeas relief is not warranted.
II. DISCUSSION
A.

Applicable Standard
We review the district court’s legal conclusions de novo and its findings of

fact for clear error. Terrell v. GDCP Warden, 744 F.3d 1255, 1261 (11th Cir.
2014). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposes a highly deferential standard for reviewing the Florida court’s decision on
the merits of Petitioner’s claim. See id. The AEDPA only authorizes federal
habeas relief if the decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or if it was “based on an unreasonable determination of
the facts in light of the evidence presented.” Id. (quoting 28 U.S.C. § 2254(d))
(internal quotation marks omitted).
A decision is “contrary to” federal law if it conflicts with the governing rule
set forth by the United States Supreme Court, or arrives at a different result than
the Supreme Court when faced with materially indistinguishable facts. Id. (citing
Kimbrough v. Sec’y, Dep’t of Corr., 565 F.3d 796, 799 (11th Cir. 2009)). “An
‘unreasonable application’ of clearly established federal law occurs when the state
court correctly identifies the governing legal principle . . . but unreasonably applies
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it to the facts of the particular case.” Id. (quoting Bell v. Cone, 535 U.S. 685, 694
(2002)) (internal quotation marks omitted). This Court has emphasized the
difference between an “unreasonable” and an “incorrect” application of federal
law. Terrell, 744 F.3d at 1261. As we explained in Terrell, even a “strong case for
relief” does not necessarily mean that the state court’s denial of relief was
“unreasonable.” Id. (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011))
(internal quotation marks omitted). See also Loggins v. Thomas, 654 F.3d 1204,
1220 (11th Cir. 2011) (stating that habeas relief is not available if “some
fairminded jurists” could agree with the state court’s decision).
Likewise, a state court’s factual findings are not “unreasonable” just because
the federal habeas court would have viewed the facts differently if it had
considered them in the first instance. Hittson v. GDCP Warden, 759 F.3d 1210,
1230 (11th Cir. 2014). Rather, a state court’s factual findings are only
unreasonable if “no fairminded jurist could agree” with them. Holsey v. Warden,
Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (citing Harrington,
562 U.S. at 102) (internal quotation marks omitted). See also Landers v. Warden,
Att’y Gen. of Ala., 776 F.3d 1288, 1294 (11th Cir. 2015) (“The Supreme Court has
found state factual findings unreasonable under § 2254(d)(2) when the direction of
the evidence, viewed cumulatively, was too powerful to conclude anything but [the

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petitioner's factual claim]”) (quoting Miller-El v. Dretke, 545 U.S. 231, 265
(2005)) (internal quotation marks omitted).
B.

Petitioner’s Due Process Claim
The Due Process Clause requires that a guilty plea be “voluntary” and

“intelligent.” Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady v.
United States, 397 U.S. 742, 748 (1970) (internal quotation marks omitted). This
requirement is only met if a defendant has “real notice of the true nature of the
charge against him” prior to entering a plea. Id. (quoting Smith v. O’Grady, 312
U.S. 329, 334 (1941)) (internal quotation marks omitted). A defendant has such
notice “when he has been informed of both the nature of the charge to which he is
pleading guilty and its elements.” Gaddy v. Linahan, 780 F.2d 935, 943 (11th Cir.
1986) (citing Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976)). “In addition,
the defendant should understand how his conduct satisfies those elements.” Id. at
944.
We have recognized that a defendant typically receives detailed information
about the elements of the charged offense from his attorney prior to the plea
hearing. Id. As such, it is not essential that the trial court advise a defendant,
during the plea hearing, of each element of the offense. Id. Rather, due process is
satisfied if a defendant was previously informed of the critical elements and he
understands them. Id. See also Stano v. Dugger, 921 F.2d 1125, 1142 (11th Cir.
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1991) (“The defendant does not necessarily need to be told the nature of the
offense and elements of the crime at the actual plea proceedings; a knowing and
intelligent guilty plea may be entered on the basis of the receipt of this information,
generally from defense counsel, before the plea proceedings.”). The extent to
which the sentencing court must further explain the elements varies, depending on
the nature of the case, the complexity of the charge, and the characteristics of the
defendant. Gaddy, 780 F.2d at 945. See also United States v. Telemaque, 244
F.3d 1247, 1249 (11th Cir. 2001) (“Whether the court has adequately informed the
defendant of the offense’s nature turns on a variety of factors, including the
complexity of the offense and the defendant’s intelligence and education.”).
Petitioner claims that his due process rights were violated because he was
not informed of the elements of the charges against him before entering his guilty
plea. The Florida trial court rejected this claim when ruling on Petitioner’s Rule
3.850 motion. Specifically, the Florida court found that the record conclusively
refuted Petitioner’s claim, citing evidence that:
[D]uring the plea colloquy, [Petitioner] stated under oath that he
freely and voluntarily entered his plea. He stated that he understood
that he was giving up any defenses he may have had and that the issue
of his guilt or innocence was gone forever. He acknowledged his
guilt or that the plea was in his best interest.
The Florida court noted further that Petitioner had benefitted from the plea
agreement because he was allowed to plead to attempted capital sexual battery,
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which carries a maximum 30-year sentence, whereas capital sexual battery carries
a life sentence. The Florida Court of Appeal affirmed per curium without opinion.
Salerno v. State, 945 So. 2d 523 (Fla. 5th DCA 2006).
Petitioner has not shown that the Florida court’s decision was contrary to or
an unreasonable application of federal law, or based on an unreasonable
determination of the facts in light of the evidence adduced in state court. To the
contrary, the decision is amply supported by the evidence in the record and fully
comports with the requirements of due process discussed above. Petitioner’s
charging document clearly set out the elements of each offense Petitioner was
charged with committing and the exact manner in which he was alleged to have
committed it. The charges are not particularly complex. 3 Nor is there any
indication Petitioner was mentally incapacitated. Cf. Henderson v. Morgan, 426
U.S. 637, 646–47 (1976) (concluding that a defendant with an “unusually low
mental capacity” did not voluntarily plead guilty to second degree murder where
the element of intent was not explained to him).
By signing the plea agreement, Petitioner acknowledged that he was aware
of and fully understood the charges against him and that his attorney had discussed
with him any available defenses. At the plea colloquy, Petitioner stated under oath
3

The capital sexual batteries simply required that one of the acts described in the sexual battery
statute be committed on a juvenile under 12. Fla. Stat. § 794.011(2)(a). They did not require
any specific intent. See Wright v. State, 675 So. 2d 1009, 1010 (Fla. 2d DCA 1996).
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that he was satisfied with the services provided by his attorney and that his plea
was freely and voluntarily given. When asked if he had any questions about the
plea or any information provided by his attorney, Petitioner said he did not. Based
on Petitioner’s testimony, and on the numerous discussions the parties had about
the case during plea negotiations and at the status conference, the trial court found
that there was a sufficient factual basis for the plea and that it was freely and
voluntarily entered.
At his sentencing hearing a few weeks later, Petitioner stated, contrary to his
representation in the plea agreement and his testimony at the plea hearing, that he
was not aware of the elements of his offenses. The trial court referred Petitioner to
the video he and his wife had made showing Petitioner directly engaged in the
offenses he was charged with committing, and Petitioner affirmed that he had seen
the video. The court then advised Petitioner that the video depicted all of the
elements of the charged offenses. Petitioner did not thereafter indicate that he had
any additional questions about the elements or move to withdraw his plea, and the
court reiterated its previous finding that the plea was freely and voluntarily entered.
Based on these facts, there simply is no basis for upending the Florida
court’s decision that Petitioner’s plea was voluntary. The record as a whole
reflects that Petitioner understood that he was pleading guilty to multiple counts of
capital sexual battery, the elements of which offense—“causing his penis to unite
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with or penetrate the vagina and/or anus” of a victim under the age of 12—were
depicted on a video that Petitioner himself created and that he had an opportunity
to view before pleading. Record evidence similarly supports the Florida court’s
finding that Petitioner understood the critical elements of his molestation and
sexual performance counts when he entered his nolo plea.
III. CONCLUSION
For the reasons stated above, we affirm the denial of Petitioner’s § 2254
petition for a writ of habeas corpus.
AFFIRMED.

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