D'Andre Plummer v. Secretary, Florida Department

Filing

Opinion issued by court as to Appellant D'Andre Plummer. 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.

Case: 15-15390

Date Filed: 10/14/2016

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15390
Non-Argument Calendar
________________________
D.C. Docket No. 4:12-cv-00642-RH-CAS

D’ANDRE PLUMMER,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 14, 2016)
Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.
PER CURIAM:
D’Andre Plummer, a Florida prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2254 habeas petition. On appeal, he argues that

Case: 15-15390

Date Filed: 10/14/2016

Page: 2 of 5

his trial counsel rendered ineffective assistance by failing to properly convey and
explain a plea offer by the State. After a careful review of the parties’ briefs and
the record, we affirm.
Plummer is currently serving a 15-year sentence for aggravated battery of a
pregnant woman. Plummer contends that his trial counsel, John Eagan, failed to
properly convey to him a seven-year plea offer by the State. The trial court record
reflects a colloquy regarding the State’s plea offer, in which Plummer
acknowledged to the judge that he understood that the State’s final plea offer was
for seven years. During that colloquy, Plummer indicated confusion related to the
consequences of the plea offer. His confusion was based on the “Green case”: a
case he researched and thought applied to him. The colloquy reflected that in light
of his research, Plummer was interested in the plea offer, but that he had
previously counter-offered a six-year deal, which the prosecutor rejected.
The post-conviction trial court held an evidentiary hearing, finding that
Plummer’s misunderstanding stemmed from his own research and did not result
from his counsel’s ineffective assistance. Furthermore, Eagan provided testimony
as to his role in the plea bargaining process, and the court found his testimony
credible. The state appellate court also concluded that the evidentiary hearing
clearly refuted Plummer’s ineffective assistance claim. Subsequently, Plummer

2

Case: 15-15390

Date Filed: 10/14/2016

Page: 3 of 5

filed his present habeas petition in district court. The district court agreed with the
state courts and found that Eagan was not ineffective in regards to the plea offer.
In examining the denial of a petition filed under 28 U.S.C. § 2254, “we
review questions of law and mixed questions of law and fact de novo, and findings
of fact for clear error.” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1208 (11th
Cir. 2007). When a state court denies relief on a federal constitutional claim, we
“presume that the state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary.” See Harrington
v. Richter, 562 U.S. 86, 99, 131 S. Ct. 770, 784–85 (2011). “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Id. at 562 U.S. at 101, 131 S. Ct. at 786. This deferential standard is demanded by
§ 2254(d). See id at 100–01, 131 S. Ct. 785–86.
To make a successful claim of ineffective assistance of counsel, a defendant
must show that: (1) his counsel’s “performance was deficient”; and (2) “the
deficient performance prejudiced his defense.” Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). In considering an ineffective assistance
claim, we must “recognize that counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 690, 104 S. Ct. at 2066. Counsel’s performance is
3

Case: 15-15390

Date Filed: 10/14/2016

Page: 4 of 5

deficient only if it falls below the wide range of competence demanded of
attorneys in criminal cases. See id. at 688, 104 S. Ct. at 2065.
“Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland and
§ 2254(d) are both highly deferential, and when the two apply in tandem, review is
doubly so.” Harrington, 562 U.S. at 105, 131 S. Ct. at 788 (internal quotation
marks omitted). This court has stated that this “double deference is doubly
difficult for a petitioner to overcome, and it will be a rare case in which an
ineffective assistance of counsel claim that was denied on the merits in state court
is found to merit relief in a federal habeas proceeding.” Downs v. Sec’y, Fla. Dep’t
of Corr., 738 F.3d 240, 258 (11th Cir. 2013) (internal quotation marks omitted).
The district court did not err in concluding that it was reasonable for the
state court to determine that the performance of Plummer’s counsel was not
ineffective. The trial transcript reflects that Plummer understood that a seven-year
plea offer had been offered, and he had countered with a request for six-years.
Thus, Eagan clearly informed Plummer about the offer. Moreover, Eagan’s
approach to the “Green case” was not unreasonable. Plummer asserts that Eagan
was ineffective because he did not “understand” the Green case1 and how it was
relevant to Plummer’s plea offer. However, the Green case was overruled by the
1

Plummer’s references to the “Green case” or the “Green act” refer to State v. Green, 547 So. 2d
925 (Fla. 1989).
4

Case: 15-15390

Date Filed: 10/14/2016

Page: 5 of 5

Florida legislature in 1990, 2 well-before Plummer’s offenses. It was thus clearly
inapplicable to Plummer. Plummer does not show that the district court’s
conclusions were unreasonable, and fails to overcome the double deference
standard. Accordingly, we affirm the district court’s denial of Plummer’s § 2254
habeas petition.
AFFIRMED.

2

“In 1990, the legislature effectively overruled Green when it enacted what is now section
948.06(6), Florida Statutes. Ch. 89-526, § 8, at 2664, Laws of Fla.” Moultrie v. State, 618 So. 2d
789, 789 (Fla. Dist. Ct. App. 1993) (per curiam).
5