Brown v. Florida Attorney General et al
Filing
11
OPINION AND ORDER denying 1 Petition for writ of habeas corpus. A certificate of appealability and leave to appeal in forma pauperis is denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 9/10/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RUSSELL LEE BROWN, JR.,
Petitioner,
v.
Case No:
2:15-cv-394-FtM-29CM
FLORIDA ATTORNEY GENERAL and
SECRETARY, DOC,
Respondents.
OPINION AND ORDER
Pending before the Court is Petitioner Russell Lee Brown,
Jr.’s Petition for Writ of Habeas Corpus (Doc. #1, Petition) filed
pursuant to 28 U.S.C. § 2254 on June 25, 2015, 1 challenging his
plea-based
convictions
in
case
number
12-CF-014359
Twentieth Judicial Circuit Court in Lee County, Florida.
at
1.
Respondent
filed
a
Response
(Doc.
#7,
in
the
Petition
Response)
in
opposition to the Petition and attached supporting exhibits (Doc.
#9,
Exs.
1-6 2 )
consisting
of
the
Petitioner=s postconviction pleadings.
state
court’s
records
and
Upon due consideration of
the pleadings and the record, and as more fully set forth below,
1
The Petition was docketed and filed in
29, 2015.
The Court, however, applies the
deems the Petition “filed on the date it was
authorities for mailing.” Alexander v. Sec=y
F.3d 1291, 1294 n.4 (11th Cir. 2008).
this Court on June
“mailbox rule” and
delivered to prison
Dep=t of Corr., 523
2 Citations
to
to exhibits (“Ex. _”) are
Respondent on January 16, 2016 (Doc. #9).
those
filed
by
the Court concludes that Petitioner is not entitled to habeas
relief.
Because the petition is resolved on the record, an
evidentiary hearing is not warranted.
See Schriro v. Landrigan,
550 U.S. 465, 474 (2007) (if the record refutes the factual
allegations in the petition or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing).
I.
Procedural History
The State Attorney charged Petitioner by information with (1)
aggravated battery with discharge of a firearm resulting in great
bodily harm and (2) possession of a firearm by a convicted felon.
Ex. 1 at 96-97.
Petitioner entered a no contest plea pursuant to
a negotiated agreement.
Ex. 1 at 98-102, 113-31.
The State
agreed to “drop the discharge of a firearm resulting in great
bodily harm aspects,” which carried a mandatory/minimum 25-year
sentence up to life, in exchange for Petitioner agreeing to plea
to aggravated battery and possession of a firearm by a felon, which
carried 15-year concurrent sentences.
11,
2013,
the
trial
court
Ex. 1 at 115.
accepted
Petitioner’s
On February
plea
and
adjudicated him guilty of (1) aggravated battery with a firearm
and (2) possession of a firearm by a convicted felon and sentenced
him to concurrent sentences of 15 years in prison on both counts,
with a 15-year mandatory minimum as a Prison Releasee Reoffender
for Count 1.
Ex. 1 at 104-12.
judgment and sentence.
Petitioner did not appeal the
Ex. 2.
- 2 -
On August 5, 2013, Petitioner filed a pro se motion for
postconviction
relief
pursuant
to
Florida
Rule
of
Criminal
Procedure 3.50 claiming trial counsel was ineffective on three
grounds: (1) misadvising Petitioner that, if he testified at trial,
the State could use his prior convictions and delve into the
specifics
of
the
convictions
to
prove
his
bad
character
and
propensity to commit crimes; (2) misadvising Petitioner about the
sufficiency
shooting,
of
and
evaluation.
evidence
(3)
linking
failing
Ex. 1 at 1-11.
to
him
to
request
the
a
firearm
mental
and
the
competency
After response by the state, the
postconviction court summarily denied the motion by written order,
the denial of which was per curiam affirmed on appeal.
13-84; Ex. 1 at 91-146; Ex. 5.
Ex. 1 at
Petitioner then initiated the
instant federal habeas petition raising two grounds of ineffective
assistance of trial counsel (grounds (1) and (3) below).
II.
Doc. #1.
Applicable ' 2254 Law
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), governs
this action.
Penry
v.
Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007);
Johnson,
532
U.S.
782,
792
(2001).
The
statute
of
limitations that governs the filing of this Petition is set forth
at 28 U.S.C. § 2244(d).
Respondent concedes that the Petition is
timely filed, and this Court agrees.
Doc. #7 at 6.
Petitioner
having raised both grounds in his Rule 3.850 motion and appealed
- 3 -
the denial of the same, has exhausted these claims for federal
habeas purposes. 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541
U.S. 27, 29 (2004).
Under AEDPA, the standard of review is greatly circumscribed
and highly deferential to the state courts.
Alston v. Fla. Dep=t
of Corr., 610 F.3d 1318, 1325 (11th Cir. 2010) (citations omitted).
AEDPA altered the role of the federal courts in reviewing state
prisoner applications to “prevent federal habeas >retrials= and to
ensure that state-court convictions are given effect to the extent
possible under law.”
Bell v. Cone, 535 U.S. 685, 693 (2002). The
following legal principles apply to this case.
A.
Deference to State Court Decision
Habeas relief may not be granted with respect to a claim
adjudicated on the merits in state court unless the adjudication
of the claim:
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. ' 2254(d).
This Court’s authority to issue a writ is
limited to “cases where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with
- 4 -
[Supreme Court] precedents.”
104 (2011).
Harrington v. Richter, 562 U.S. 86,
This standard is both mandatory and difficult to
meet, White v. Woodall, 134 S. Ct. 1697, 1702 (2014), and requires
this Court “to train its attention on the particular reasons—both
legal and factual—why the state courts rejected [Petitioner’s]
claims” while affording “appropriate deference to that decision.”
Wilson v. Sellers, ___ U.S. ___, 138 S. Ct. 1188, 1191 (2018)
(internal quotations and citations omitted).
“Clearly established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the decisions
of the United States Supreme Court at the time the state court
issued its decision.
White, 134 S. Ct. at 1702; Carey v. Musladin,
549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362,
412 (2000)).
When there is clearly established federal law on
point,
relief
habeas
is
only
appropriate
if
the
state
court
decision was “contrary to, or an unreasonable application of,”
that federal law. 29 U.S.C. § 2254(d)(1).
A decision is “contrary
to” clearly established federal law if the state court either: (1)
applied a rule that contradicts the governing law set forth by
Supreme Court case law; or (2) reached a different result from the
Supreme Court when faced with materially indistinguishable facts.
Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v.
Esparza, 540 U.S. 12, 16 (2003).
- 5 -
A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle, but applies it to the
facts of the petitioner’s case in an objectively unreasonable
manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court
either unreasonably extends a legal principle from [Supreme Court]
precedent
to
a
new
context
where
it
should
not
apply
or
unreasonably refuses to extend that principle to a new context
where
it
should
apply.”
Bottoson,
Williams, 529 U.S. at 406).
234
F.3d
at
531
(quoting
The petitioner must show that the
state court’s ruling was “so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
White, 134
S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86).
A state court’s summary rejection of a claim, even without
explanation, qualifies as an adjudication on the merits which
warrants deference.
(11th Cir. 2008).
Ferguson v. Culliver, 527 F.3d 1144, 1146
In the case of a silent affirmance, a federal
habeas court “should look through” the unreasoned opinion and
presume that the affirmance rests upon the same reasons given by
the last court to provide a reasoned opinion.
Wilson v. Sellers,
138 S. Ct. at 1192; see also Ylst v. Nunnemaker, 501 U.S. 797,
799-800 (1991).
The presumption that the appellate court relied
- 6 -
upon the same reasoning as the lower court can be rebutted “by
evidence of, for instance, an alternative ground that was argued
[by the state] or that is clear in the record” to demonstrate an
alternate basis for the silent affirmance.
Wilson, 138 S. Ct.
1196.
Finally, when reviewing a claim under § 2254(d), a federal
court must bear in mind that any “determination of a factual issue
made by a State court shall be presumed to be correct[,]” and the
petitioner bears “the burden of rebutting the presumption of
correctness
by
clear
and
convincing
evidence.”
28
U.S.C.
§
2254(e)(1); Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (“a
decision adjudicated on the merits in a state court and based on
a factual determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence presented
in the state-court proceeding”) (dictum); Burt v. Titlow, 134 S.
Ct. 10, 15-16 (2013).
B.
Effect of a Guilty Plea
As noted supra, Petitioner entered a counseled no contest
plea.
The entry of a no contest plea has the same legal effect
as a plea of guilty in a criminal proceeding.
Hudson v. United
States, 272 U.S. 451, 455 (1926) (stating that a plea of no contest
is, like a plea of guilty, an admission of guilt for purposes of
the case).
When a petitioner seeks to challenge his convictions
obtained pursuant to guilty pleas, “the inquiry is ordinarily
- 7 -
confined to whether the underlying plea was both counseled and
voluntary.”
United States v. Broce, 488 U.S. 563, 569 (1989).
Alternatively, “[a] guilty plea is open to attack on the ground
that
counsel
did
not
competent advice.’”
provide
the
defendant
with
‘reasonably
Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)
(quoting McMann v. Richardson, 397 U.S. 759, 770 (1970)).
Notably, “the representations of the defendant, his lawyer,
and the prosecutor at [a plea] hearing, as well as any findings
made by the judge accepting the plea, constitute a formidable
barrier in any subsequent collateral proceedings.”
Allison, 431 U.S. 63, 73-74 (1977).
Blackledge v.
Indeed, “when a defendant
makes statements under oath at a plea colloquy, he bears a heavy
burden to show his statements were false.”
United States v.
Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (citations omitted).
Thus, conclusory allegations that are not supported by specific
facts and contentions that are refuted by the record are subject
to summary dismissal.
C.
Blackledge, 431 U.S. at 74.
Ineffective Assistance of Counsel
The Supreme Court has held “that the two-part Strickland v.
Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel.”
52, 58 (1985).
Hill v. Lockhart, 474 U.S.
To succeed on an ineffective assistance of counsel
claim, a petitioner must demonstrate both that: (1) counsel’s
performance was deficient and (2) petitioner suffered prejudice
- 8 -
because
of
counsel’s
deficient
performance.
Washington, 466 U.S. 668, 687 (1984).
Strickland
v.
For the first element, a
petitioner must show that “he received advice from counsel that
was not within the range of competence demanded of attorneys in
criminal cases.”
Scott v. United States, 325 F. App’x 822, 824
(11th Cir. 2009) (citing Hill, 474 U.S. at 56-57)).
The Eleventh
Circuit has held that “counsel owes a lesser duty to a client who
pleads guilty than to one who decides to go to trial . . . and .
. . need only provide his client with an understanding of the law
in relation to the facts, so that the accused may make an informed
and conscious choice between” pleading guilty or “going to trial.”
Wofford
v.
Wainwright,
748
F.2d
1505,
1508
(11th
Cir.
1984)
(citation omitted); see also Stano v. Dugger, 921 F.2d 1125, 1151
(11th Cir. 1991).
“To impart such an understanding to the accused,
counsel must, after making an independent examination of the facts,
circumstances, pleadings and laws involved, offer his informed
opinion as to the best course to be followed in protecting the
interests of his client.”
omitted).
of
Wofford, 748 F.2d at 1508. (citation
Performance is “measured against an objective standard
reasonableness
under
the
prevailing
professional
norms.”
Rompilla v. Beard, 545 U.S. 374, 381 (2005) (internal quotation
marks and citations omitted).
Collateral relief is only available
to a petitioner if he “prove[s] serious derelictions on the part
of counsel sufficient to show that his plea was not, after all, a
- 9 -
knowing and intelligent act.”
McMann v. Richardson, 397 U.S. 759,
774 (1970).
To satisfy the prejudice requirement in the context of a
guilty plea, Petitioner must show “that there is a reasonable
probability that, but for counsel’s errors, [he] would not have
pleaded guilty and would have insisted on going to trial.”
Lafler
v. Cooper, 566 U.S. 156, 163 (2012) (quoting Hill, 474 U.S. 52 at
59).
The focus in a plea case is whether the petitioner was
prejudiced by the “denial of the entire judicial proceeding . . .
to which he has a right.”
Lee v. United States, 582 U.S. ___, 137
S.Ct. 1958, 1965 (2017) (quoting Roe v. Flores-Ortega, 528 U.S.
470, 483 (2000)).
Consequently, the court considers whether the
petitioner had a fruitful defense at trial, see Hill, 474 U.S. at
59, or whether the petitioner understood the consequences of
pleading guilty.
Lee, 137 S. Ct. at 1965.
While stressing that
the focus is on the petitioner’s decision-making and rejecting a
per se rule that a defendant with no viable defense cannot show
prejudice, the Supreme Court nonetheless cautions that “[c]ourts
should not upset a plea solely because of post hoc assertions from
a defendant about how he would have pleaded but for his attorney’s
deficiencies.”
Id. at 1966-67.
Instead, the Court is required
to “look to contemporaneous evidence to substantiate a defendant’s
expressed
preferences.”
Id.
at
1968.
Further,
while
a
petitioner must satisfy both prongs, the “court need not address
- 10 -
the performance prong if the petitioner cannot meet the prejudice
prong, or vice-versa.”
Ward v. Hall, 592 F. 3d 1144, 1163 (11th
Cir. 2010)(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th
Cir. 2000)).
III. Discussion
Petitioner raises the following two grounds for relief in his
federal Petition.
Ground One- ineffective assistance of counsel
for misadvising Petitioner that his prior
convictions could be used to prove bad
character and propensity if he testified at
trial; and
Ground Two- ineffective assistance of counsel
for failing to request a mental competency
evaluation of Petitioner.
Doc. 1 at 4-5.
Regarding Ground One, Petitioner claims that had his attorney
not erroneously advised him about his prior state convictions he
would not have plead and would have went to trial and would have
testified that he was acting in self-defense when he shot his
brother.
Doc. 1 at 4.
In support of ground Two, Petitioner
states that the victim in his depositions disclosed that Petitioner
“had ongoing mental health issues.”
Id. at 5. Further, Petitioner
states that he told counsel “he was experiencing mental issues.”
Ibid.
Petitioner argues that counsel should have requested a
competency evaluation before permitting him to enter his plea and
claims that his plea was not voluntary. Ibid.
- 11 -
In his Rule 3.850
motion, Petitioner raised his competency claim in terms of whether
he had a viable insanity defense.
Exh. 1 at 8.
Consequently, the
Court deems this ground exhausted only to the extent Petitioner
raised it in his Rule 3.850 motion and the appeal thereof.
The
state
post-conviction
court
in
its
reasoned
opinion
denying both grounds, held as follows:
3.
The test for analyzing ineffective assistance of counsel
claims relating to guilty pleas was established in Hill
v. Lockhart, 474 U.S. 52 (1985).
A defendant must
first show that counsel’s performance was deficient
and then demonstrate “a reasonable probability” that,
but for counsel’s errors, the defendant would not have
pleaded guilty and would have insisted on going to
trial.
Id. at 59.
In determining whether a
reasonable probability exists that the defendant
would have insisted on going to trial, the court
should consider the totality of the circumstances
surrounding the plea, which includes whether a
particular defense was likely to succeed at trial,
the plea colloquy, and the difference between the
maximum possible sentence and the actual sentence
imposed pursuant to the plea.
Grosvenor v. State,
874 So. 2d 1176, 1182 (Fla. 2004).
4.
In the first allegation, Defendant alleges that
counsel was ineffective for misadvising Defendant
that if he testified at trial, the State would use
his prior convictions to prove bad character or a
propensity to commit crimes, therefore, Defendant did
not testify at trial. The State conceded that this
issue should be set for hearing because the State is
not privy to conversations and meetings between
Defendant and counsel.
5.
However, Defendant pled in this case and did not go to
trial.
Therefore, the issue as to whether counsel
misadvised Defendant concerning his right to testify
at trial is irrelevant.
Defendant, unequivocally,
stated during the plea colloquy “there's no way around
the plea, so I have to take the plea. I’m not going
to go to trial.”
See p. 11, of January 29, 2013,
- 12 -
transcript.
Moreover,
when
the
Court
wanted
Defendant to take some time to think it over,
Defendant stated, “I’m going to take the plea today,
Judge. I’m going to take it. I have no time. I’m
sure. I’m positive.” See p.11, of the January 29,
2013, transcript.
See also pp.1-9 of the May 31,
2013, transcript, in which Defendant once again
decided to plea instead of withdrawing his plea.
Moreover, Defendant cannot show how he was prejudiced
by not testifying at a trial that never took place.
Therefore, in spite of the State’s concession that
this issue warrants an evidentiary hearing, this
allegation will not be set for hearing. Even if true,
Defendant cannot show prejudice.
7.
In the third allegation, Defendant alleges that
counsel was ineffective for failing to file a motion
in order to have Defendant’s mental competency
evaluated. Defendant further alleges that if he had
been evaluated for competency, he would have had a
viable defense.
As the State points out, mental
incompetency is not a viable defense like insanity.
If Defendant were found to be incompetent, he would
not have been permitted to proceed in this matter.
The proceedings would have been postponed until
Defendant was found competent to proceed. Moreover,
Defendant never stated during the plea colloquy that
he was incompetent, or suffered from a mental disease,
nor did Defendant exhibit any behavior during either
hearing that demonstrated incompetency to proceed in
this matter.
See both the January 29, 2013, and
January
31,
2013,
transcript.
In
addition,
Defendants are bound by their statements under oath
and are not entitled to have their plea set aside by
subsequently claiming the plea was involuntary based
on their own allegedly perjured testimony during the
plea. Henry v. State, 920 So. 2d 1245, 1246 (Fla. 5th
DCA 2006). Defendant was aware of this issue prior
to the plea, therefore, he cannot raise these issues
to avoid the consequences of his plea.
8.
In conclusion, the Court finds that all of Defendant’s
allegations are an attempt to go behind the plea.
Gidney v. State, 925 So. 2d 1076, 1077 (Fla. 4th DCA
2006). A defendant who has been convicted pursuant
to a plea cannot raise issues in a 3.850 motion, which
were known to him prior to the plea. Id.
See also
Jauregui v. State, 652 So. 2d 898 (Fla. 3d DCA 1995)
- 13 -
(finding that a plea cuts off inquiry into all issues,
except for those expressly preserved for appeal, and
issues regarding jurisdiction, legality of the
sentence, failure of the State to abide by the plea
agreement, and the voluntary and intelligent nature
of the plea). Furthermore. defendants are bound by
their statements under oath and are not entitled to
have their plea set aside by subsequently claiming
the plea was involuntary based on their own allegedly
perjured testimony during the plea. Henry v. State,
920 So. 2d 1245, 1246 (Fla. 5th DCA 2006).
9.
In addition, based on Hill and Grosvenor, Defendant
was facing life with a 25-year minimum mandatory
sentence, if he went to trial and if the State did
not drop the discharge and great bodily harm on Count
I.
See p.8, of January 29, 2013, transcript.
The
Court has considered the totality of the circumstances
surrounding the plea, which includes whether a
particular defense was likely to succeed at trial,
the plea colloquy. and the difference between the
maximum possible sentence and the actual sentence
imposed pursuant to the plea, and finds that no
reasonable probability exists that Defendant would
have insisted on going to trial.
Exh. 1 at 92-94.
The Court finds that the state court’s determination that
Petitioner cannot demonstrate prejudice for either ground is not
contrary to or an unreasonable application of Strickland and is
supported by the record.
Petitioner’s bare allegations that he
would have proceeded to trial are insufficient given the objective
facts and circumstances of this case.
See Padilla v. Kentucky,
559 U.S. 356, 372 (2010) (recognizing that a petitioner must make
a showing “that a decision to reject the plea bargain would have
been rational under the circumstances.”).
- 14 -
In considering the
totality of the circumstances, the Court considers the strength of
the prosecution’s case, any available defenses, the plea colloquy
and negotiations, and potential sentencing exposure.
See Hill,
474 U.S. at 59-60.
Here the record refutes that Petitioner
believed
viable
he
had
any
defense,
especially
because
both
Petitioner’s brother and mother would have presented damaging
testimony against him.
There is no evidence in the record to
suggest that Petitioner was suffering from any mental illness that
rendered him incompetent to warrant an insanity defense.
Instead,
the record reveals that Petitioner opted for the plea because it
was in his best interest since he was facing a much longer
mandatory sentence.
According
to
the
probable
cause
affidavit,
the
victim,
Petitioner’s younger brother, told the responding officer that
Petitioner shot him and left the crime scene. Ex. 1 at 18. The
victim was unable to give a further statement because he had
sustained life-threatening injuries and was immediately taken to
the
hospital
for
surgery.
Id.
A
detective
interviewed
Petitioner’s mother who stated that Petitioner arrived home at
2:00 a.m. and she reprimanded Petitioner for drinking and using
drugs.
Id.
The victim, who was present, stated his agreement
with his mother and told Petitioner that his behavior needed to
change.
Id.
The mother observed Petitioner go outside with the
victim, heard a gunshot, went outside, heard the victim state that
- 15 -
Petitioner shot him, and saw Petitioner on top of the victim
hitting him.
Id.
The mother picked up a chair and hit the
Petitioner with the chair in order to get the Petitioner off the
victim.
Id.
The mother saw Petitioner run away.
Id.
Petitioner
was arrested nearby, and a firearm was found hidden between two
fences at that location.
Id.
On the day that Petitioner’s trial was to begin, and before
entering his plea, Petitioner acknowledged to the court that his
brother was willing to testify against him, “so I have to take the
plea; that’s in my best interest.”
Ex. 1 at 39, lines 21-24.
The
Court spent a considerable amount of time explaining the potential
sentences Petitioner was facing since the crime involved a gun and
it discharged, and the implications of the minimum mandatory
sentences
Petitioner
was
facing
under
Florida’s
10-20-Life
statute, 3 as well as due to Petitioner being a prison releasee
reoffender.
4
Id.
32-38.
When Petitioner indicated that he did
not have “as much time as [he] need[ed] to talk to [trial counsel]”
the trial court offered to reset his trial for later in the week,
but Petitioner was adamant that he was prepared to enter a plea:
3
The 1-20-life law is a mandatory minimum sentencing law that
applies to the use of a firearm during the commission of a forcible
felony. Fla. Stat. § 775.087.
4
An individual who has
Corrections for less than three
enumerated offense is required
for the new offense committed.
been out of the Department of
years and subsequently commits an
to receive the maximum punishment
Fla. Stat. § 775.082.
- 16 -
THE DEFENDANT: . . .like I said, there’s no way around
the plea, so I have to take the plea. I’m not going to
go to trial.
THE COURT:
I want you to have enough time to talk
with your attorney about the plea, so I will give you
that opportunity. If you don’t call Mr. Brown’s - you can perhaps take this time, Mr. Martin, if we don’t
call Mr. Brown’s case for trial today, as I said, it
will set at 8:30 on Thursday and maybe between now and
Thursday you and Mr. brown can spend whatever time you
need to discuss the pros and cons of –
THE DEFENDANT: I’m going to take the plea today, judge.
I’m going to take it. I have no time. I’m sure. I’m
positive.
THE COURT:
You don’t want to wait until Thursday?
THE DEFENDANT: No, ma’am.
THE COURT:
Okay.
Why not?
THE DEFENDANT: Because I’m just wasting time sitting
here in county jail. I need to go ahead and get my time
started.
. . .
THE COURT:
So, this is something you want to do?
THE DEFENDANT: No, it’s not what I want to do, but I’m
- -it’s something I have to do.
THE COURT:
Okay.
THE DEFENDANT: Yeah.
THE COURT:
charges?
This is how you wanted to resolve these
THE DEFENDANT: Exactly.
Exactly.
Exactly.
Id. at 40-41.
Subsequently, at his sentencing hearing held two days after
his plea, Petitioner initially indicated he wanted to withdraw his
- 17 -
plea on the basis that it was “his brother’s wish now that he not
do as much time as was made a part of the plea negotiation, that
he do a lesser sentence.”
Id. at 53, lines 10-13.
The trial
court explained that there was “no discretion with regard to the
minimum/mandatory sentence” and if he proceeded to trial the
minimum, if convicted, would be at least 25 years and the court
would have no discretion to rendering that sentence, no matter the
wishes of the victim, and he possibility could be sentenced to
life
due
to
Florida’s
10-20-Life
statue.
Id.
at
53-55.
Petitioner then inquired whether he could “not waive [his] rights
to an appeal.”
Id. at 56.
After explanation by the court that
the legality of the sentence and jurisdiction were the only issues
that could be raised on appeal, Petitioner expressly stated that
he did not want to withdraw his plea.
Id. at 56-57.
Petitioner clearly understood the consequences of his guilty
plea—that he would be sentenced to a mandatory 15-year sentence.
As
noted
supra,
the
charges
against
Petitioner
carried
a
mandatory/minimum 25-year sentence up to life, pursuant to Florida
10-20-life statute.
Further, the prosecution filed a Prison
Release Reoffender Notice.
Ex. 1, Lee County Clerk of Courts,
Case Summary, p. 2.
Although raised as an insanity defense in his Rule 3.850
motion, to the extent that Petitioner suggests he was not competent
to enter a plea, the record refutes any such assertion.
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A
defendant is competent to stand trial or plea if "he has sufficient
present ability to consult with his lawyer with a reasonable degree
of rational understanding—and whether he has a rational as well as
factual understanding of the proceedings against him.'”
Dusky v.
United States, 362 U.S. 402, 402 (1960) (per curiam).
There is absolutely nothing to suggest that Petitioner was
not competent to participate in the plea colloquy. Here, the record
conclusively shows that Petitioner actively participated in the
plea colloquy and expressly denied that he had any mental condition
or was under the influence of any substances that would affect his
understanding of the proceedings.
Id. at 43.
After finding the
factual basis for the plea based upon a stipulation and the
probable
cause
affidavit,
the
court
found
Petitioner
“is
competent, alert, and able to tender a plea and that he’s done so
voluntarily with full understanding of the consequences.”
46.
Id. at
“Determining the credibility of witnesses is the province and
function of the state courts, not a federal court engaging in
habeas review.”
Consalvo v. Sec'y for Dep't of Corr., 664 F.3d
842, 845 (11th Cir. 2011). A state court’s finding of competency
constitutes a factual finding, which is presumed correct and “can
only
be
overcome
incompetence.”
with
clear
and
convincing
evidence
of
Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d
1093, 1101 (11th Cir. 2009)(citing Demosthenes v. Baal, 495 U.S.
- 19 -
731, 735 (1990)).
Petitioner makes no such showing here to
overcome the state court’s findings.
In
sum,
the
Court
finds
the
State
court’s
denial
of
Petitioner=s ineffective assistance of counsel claims was not
contrary
to
Strickland,
did
not
involve
an
unreasonable
application of Strickland, and was not based on an unreasonable
determination of the facts considering the evidence presented in
the State court proceedings.
28 U.S.C. § 2254(d).
ACCORDINGLY, it is hereby
ORDERED:
1.
2.
The Petition for Writ of Habeas Corpus is DENIED.
The Clerk of Court shall enter judgment accordingly,
terminate any pending motions, and close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability on either petition.
A prisoner
seeking to appeal a district court's final order denying his
petition for writ of habeas corpus has no absolute entitlement to
appeal but must obtain a certificate of appealability (“COA”).
28
U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 184 (2009).
“A [COA] may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).
28
To make such a showing, Petitioner “must
- 20 -
demonstrate
court’s
that
assessment
reasonable
of
the
jurists
would
constitutional
find
claims
the
district
debatable
or
wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) or, that “the
issues presented were adequate to deserve encouragement to proceed
further”,
Miller-El
v.
(2003)(citations omitted).
Cockrell,
537
U.S.
322,
335-36
Petitioner has not made the requisite
showing in these circumstances.
Finally, because Petitioner is
not entitled to a certificate of appealability, he is not entitled
to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
of September 2018.
SA: FTMP-1
Copies:
Counsel of Record
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10th
day
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