Fisher v. Florida Attorney General et al
Filing
14
OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; dismissing Claim One of the 1 Petition for writ of habeas corpus as procedurally barred and denying the remaining claims on the merits. A certificate of appealability is denied. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 8/31/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LUKE FISHER,
Petitioner,
v.
Case No:
2:16-cv-157-FtM-99MRM
FLORIDA ATTORNEY GENERAL and
SECRETARY, DOC,
Respondents. 1
OPINION AND ORDER
This matter comes before the Court on a petition for habeas
corpus relief filed pursuant to 28 U.S.C. § 2254 by Luke Fisher
(“Petitioner” or “Fisher”), a prisoner of the Florida Department
of
Corrections
(Doc.
1,
filed
February
25,
2016).
Fisher,
proceeding pro se, attacks the convictions and sentences entered
against him by the Twentieth Judicial Circuit Court in Charlotte
County,
Florida
methamphetamine,
for
trafficking
possession
of
in
cocaine,
oxycodone,
possession
possession
of
of
MDMA,
driving with a suspended license, carrying a concealed firearm,
and possession of drug paraphernalia. Id.
1
Respondent filed a
When the petitioner is incarcerated and challenges his
present physical confinement “the proper respondent is the warden
of the facility where the prisoner is being held, not the Attorney
General or some other remote supervisory official.” Rumsfeld v.
Padilla, 542 U.S. 426, 436 (2004) (citations omitted).
In
Florida, the proper respondent in this action is the Secretary of
the Florida Department of Corrections.
Therefore, the Florida
Attorney General will be dismissed from this action.
response to the petition (Doc. 10).
Fisher filed a reply (Doc.
13), and the matter is now ripe for review.
Upon due consideration of the pleadings and the state court
record, the Court concludes that each claim must be dismissed or
denied.
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).
Background 2
I.
On April 8, 2008, the State of Florida charged Fisher by
amended
information
with
ten
separate
counts:
possession
of
cocaine, in violation of Florida Statute § 893.13(6)(a) (count
one); possession of a controlled substance with intent to sell or
deliver, in violation of Florida Statute § 893.13(1)(1) (count
two); trafficking in cocaine, in violation of Florida Statute §
893.135(1)(b)(count
controlled
three);
substance,
in
three
counts
violation
of
of
possession
Florida
of
Statute
a
§
893.13(6)(a) (counts four through six); unlawful fleeing from a
law
enforcement
officer,
in
violation
2
of
Florida
Statute
§
Citations to exhibits and appendices are to those filed by
Respondent on August 3, 2016 (Doc. 12). Citations to Petitioner’s
sentencing hearing, located in Exhibit 24, will be cited as (S at
__).
Citations to Petitioner’s post-conviction evidentiary
hearing, located in Exhibit 23, will be cited as (EH at __).
- 2 -
316.1935(3)(a) (count seven); driving with a suspended license; in
violation of Florida Statute § 322.34(5) (count eight); carrying
a concealed firearm, in violation of Florida Statute § 790.01(2)
(count nine); and possession of paraphernalia, in violation of
Florida Statute § 893.147 (count ten) (Vol. 1 at 14).
Fisher faced up to ninety years in prison if convicted on all
counts, but entered into a negotiated plea agreement in which he
agreed to plead no contest to some of the counts in exchange for
a
prosecutor
recommendation
of
forty-eight
months
in
prison,
followed by two years of supervised release (Vol. 1 at 62-63).
At
Fisher’s November 4, 2008 plea colloquy, the trial court agreed to
forego
taking
Fisher
into
immediate
custody.
Id.
at
128.
However, the court warned Fisher of the ramifications of violating
the law during his furlough:
Here’s the way I do that. Before I go through
a plea colloquy with you, Mr. Fisher, I’ll go
along with what’s been negotiated, but I will
not impose sentence today. What I do rather
than impose the sentence and give you a date
to report, I defer sentencing, and I’ll be
really upfront and honest with you.
I’m
always upfront and honest, but I’m going to be
really blunt.
The reason why I do that is
because if you pick up any new charges between
now and your sentencing date, or if you fail
to appear for sentencing, your plea would
stand, but not the agreed upon sentence.
Which means that I can give you a total of 10,
40, 50, 55 years in state prison. So it’s an
incentive for you not to break the law while
you’re pending sentencing.
- 3 -
Id. at 128-29.
Fisher affirmed his understanding of the warning,
and the trial court proceeded with the colloquy.
Id. at 131-34.
The court found Fisher competent to tender the plea, and it was
accepted.
Id. at 34.
Sentencing was set for three weeks later.
Id.
Between his plea colloquy and his December 5, 2008 sentencing,
Fisher was arrested for other drug-related crimes (S at 3).
At
defense counsel’s (“Counsel’s”) request, an evidentiary hearing
was held to establish whether Fisher had violated the terms of his
furlough.
Id. at 5.
Brad Combs, a detective with the Charlotte
County Sheriff’s Office, testified at the hearing.
Id. at 8.
Combs testified that Fisher sold Roxycodone pills to a confidential
informant and undercover detective on November 6, 2008 and November
21, 2008.
Id. at 8-10.
A search warrant was executed at Fisher’s
residence where 620 Oxycodone pills, 17 grams of methamphetamine,
and one gram of crack cocaine were located.
Id. at 11.
Fisher
was apprehended, and he was found to be carrying a substantial
amount of cash and a key to a bank deposit box.
Id.
The box was
found to contain 1003 Roxycodone pills and $15,000 in cash.
Id.
On cross-examination, Combs admitted that he was not physically
present at the November 6, 2008 drug buy; rather, he listened to
the transaction on a listening device in order to monitor the
situation.
Id. at 12.
However, Combs clarified that he saw the
search warrant executed and he saw the drugs in Fisher’s house.
- 4 -
Id. at 22.
He also saw the search warrant executed on the bank
deposit box and saw the money and drugs contained therein.
Id.
The trial court found that competent and substantial evidence
showing that Fisher violated the plea agreement by committing
additional crimes while on furlough (S. at 32).
Fisher was
sentenced to twenty years in prison on count three; concurrent
five-year terms on counts four, five, six, eight, and nine; and to
time served on count ten.
Id. at 33-34.
In his brief on direct appeal, Fisher argued that the trial
court committed reversible error when it relied on hearsay evidence
to
void
Fisher’s
considering
the
sentencing
merits
of
agreement
Fisher’s
(Ex.
claims,
2).
Instead
Florida’s
of
Second
District Court of Appeal determined that Fisher had not preserved
the claim for appellate review:
Fisher argues the trial court violated the
terms of the plea agreement by relying on
insufficient evidence to determine that he
committed a new law violation and thereafter
imposing a sentence greater than the sentence
approved under the plea agreement. In support
of his argument, Fisher relies on the
evidentiary requirements set forth in Neeld
[v. State, 977 So. 2d 740, 745 (Fla. 2d DCA
2008)]. But in Neeld, this court, prior to
addressing the merits of his appeal, noted
Neeld had filed a motion to withdraw plea. 977
So.2d at 741. In contrast, for reasons that
are unclear in our record on appeal, Fisher
did not file a motion to withdraw his plea.
Therefore, Fisher's contentions were not
preserved under rule 9.140(b)(2)(A)(ii)(b),
and we find his arguments concerning the
sufficiency of the evidence relied upon by the
- 5 -
trial court to be beyond our scope of
appellate review. Accordingly, we affirm
Fisher's judgments and sentences without
prejudice to any right he may have to file a
motion for postconviction relief.
(Ex. 5); Fisher v. State, 35 So. 3d 2010 (Fla. 3d DCA 2010).
Thereafter, Fisher filed a motion for post-conviction relief
pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure
(“Rule 3.850 motion”) in which he argued that Counsel had been
constitutionally ineffective for not preserving his sentencing
claim for appellate review by filing a motion to withdraw his plea
(Ex. 8).
Fisher also filed an amended Rule 3.850 motion (Ex. 9).
The motions were struck by the post-conviction court on the ground
that Fisher had not alleged prejudice from Counsel’s failure to
file a motion to withdraw plea—in other words, the post-conviction
court noted that Fisher had not demonstrated that the state could
not have presented “non-hearsay evidence demonstrating new law
offenses between [Fisher’s] plea and sentencing.” (Ex. 10 at 3).
On March 20, 2012, Fisher filed another Rule 3.850 motion in
which he raised three claims of ineffective assistance of counsel
(Ex. 11).
Two of the claims were denied on the merits, and an
evidentiary hearing was ordered on Fisher’s claim that Counsel had
failed to advise him of a viable defense (Ex. 14).
After holding
an evidentiary hearing (Ex. 23), the remaining claim was also
denied
(Ex.
15).
Florida’s
Second
- 6 -
District
Court
of
Appeal
affirmed without a written opinion (Ex. 21); Fisher v. State, 185
So. 3d 1242 (Fla. 2d DCA 2016).
II.
a.
Legal Standards
The Antiterrorism Effective Death Penalty Act (“AEDPA”)
Pursuant to the AEDPA, federal 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).
to meet.
This standard is both mandatory and difficult
White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
Notably,
a state court’s violation of state law is not sufficient to show
that a petitioner is in custody in violation of the “Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2254(a);
Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“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)).
That said, the Supreme Court has also explained that
- 7 -
“the lack of a Supreme Court decision on nearly identical facts
does not by itself mean that there is no clearly established
federal law, since ‘a general standard’ from [the Supreme Court’s]
cases can supply such law.” Marshall v. Rodgers, 133 S. Ct. 1446,
1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).
State courts “must reasonably apply the rules ‘squarely
established’ by [the Supreme] Court’s holdings to the facts of
each
case.”
White,
134
S.
Ct.
at
1706
(quoting
Knowles
v.
Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point,
habeas relief 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).
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.
- 8 -
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 (2011)).
Moreover,
“it
is
not
an
unreasonable
application
of
clearly
established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by [the
Supreme] Court.” Knowles, 556 U.S. at 122.
Notably,
even
when
the
opinion
of
a
lower
state
post-
conviction court contains flawed reasoning, the federal court must
give the last state court to adjudicate the prisoner’s claim on
the merits “the benefit of the doubt.” Wilson v. Warden, Ga.
Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert.
granted Wilson v. Sellers, 137 S. Ct. 1203 (Feb. 27, 2017).
state
court’s
summary
rejection
of
a
claim,
even
A
without
explanation, qualifies as an adjudication on the merits which
warrants deference.
(11th Cir. 2008).
Ferguson v. Culliver, 527 F.3d 1144, 1146
Therefore, to determine which theories could
- 9 -
have supported the state appellate court’s decision, the federal
habeas court may look to a state post-conviction court’s previous
opinion as one example of a reasonable application of law or
determination of fact; however, the federal court is not limited
to assessing the reasoning of the lower court. Wilson, 834 F.3d at
1239.
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) (same).
b.
Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a
two-part
test
entitled
to
for
relief
determining
on
the
whether
ground
that
a
convicted
his
counsel
ineffective assistance. 466 U.S. 668, 687-88 (1984).
person
is
rendered
A petitioner
must establish that counsel’s performance was deficient and fell
below
an
objective
standard
of
reasonableness
- 10 -
and
that
the
deficient performance prejudiced the defense. Id.
This is a
“doubly deferential” standard of review that gives both the state
court and the petitioner’s attorney the benefit of the doubt.
Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 563 U.S. 170
(2011)).
The focus of inquiry under Strickland’s performance prong is
“reasonableness under prevailing professional norms.” Strickland,
466 U.S. at 688-89.
In reviewing counsel’s performance, a court
must adhere to a strong presumption that “counsel’s conduct falls
within the wide range of reasonable professional assistance[.]”
Id. at 689.
“prove,
by
Indeed, the petitioner bears the heavy burden to
a
preponderance
of
the
evidence,
that
counsel’s
performance was unreasonable[.]” Jones v. Campbell, 436 F.3d 1285,
1293 (11th Cir. 2006).
A court must “judge the reasonableness of
counsel’s conduct on the facts of the particular case, viewed as
of the time of counsel’s conduct,” applying a “highly deferential”
level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470,
477 (2000) (quoting Strickland, 466 U.S. at 690).
As
to
the
prejudice
prong
of
the
Strickland
standard,
Petitioner’s burden to demonstrate prejudice is high. Wellington
v.
Moore,
314
F.3d
1256,
1260
(11th
Cir.
2002).
Prejudice
“requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687.
- 11 -
In the context of a guilty
plea, the Court must focus on whether counsel’s constitutionally
ineffective performance affected the outcome of the plea process.
“In other words, in order to satisfy the ‘prejudice’ requirement,
the defendant 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.”
Hill v. Lockhart, 474
U.S. 52, 59 (1985).
c.
The
AEDPA
Exhaustion and Procedural Default
precludes
federal
courts,
absent
exceptional
circumstances, from granting habeas relief unless a petitioner has
exhausted
all
means
of
available
relief
under
state
law.
Exhaustion of state remedies requires that the state prisoner
“fairly presen[t] federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights[.]” Duncan v. Henry,
513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270,
275-76 (1971)).
The petitioner must apprise the state court of
the federal constitutional issue, not just the underlying facts of
the claim or a similar state law claim.
Snowden v. Singletary,
135 F.3d 732 (11th Cir. 1998).
In
addition,
a
federal
habeas
court
is
precluded
from
considering claims that are not exhausted and would clearly be
barred if returned to state court. Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991) (if a petitioner has failed to exhaust state
- 12 -
remedies and the state court to which the petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred, there
is a procedural default for federal habeas purposes regardless of
the decision of the last state court to which the petitioner
actually presented his claims).
Finally, a federal court must dismiss those claims or portions
of
claims
that
have
been
denied
on
adequate
and
independent
procedural grounds under state law. Coleman, 501 U.S. at 750.
If
a petitioner attempts to raise a claim in a manner not permitted
by state procedural rules, he is barred from pursuing the same
claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th
Cir. 1994).
A petitioner can avoid the application of procedural default
by establishing objective cause for failing to properly raise the
claim
in
state
court
and
actual
prejudice
from
the
alleged
constitutional violation. Spencer v. Sec’y, Dep’t of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010).
To show cause, a petitioner
“must demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in state
court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999);
Murray v. Carrier, 477 U.S. 478 (1986).
To show prejudice, a
petitioner must demonstrate there is a reasonable probability the
- 13 -
outcome of the proceeding would have been different. Crawford v.
Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).
A second exception, known as the fundamental miscarriage of
justice,
only
occurs
in
an
extraordinary
case,
where
a
“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]”
478, 479-80 (1986).
Actual innocence means factual innocence, not
legal insufficiency.
(1998).
Murray v. Carrier, 477 U.S.
Bousley v. United States, 523 U.S. 614, 623
To meet this standard, a petitioner must “show that it
is more likely than not that no reasonable juror would have
convicted him” of the underlying offense. Schlup v. Delo, 513 U.S.
298, 327 (1995).
“To be credible, a claim of actual innocence
must be based on [new] reliable evidence not presented at trial.”
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,
513 U.S. at 324).
III. Analysis
Fisher raises six claims in his petition.
He asserts that:
(1) the trial court erred by imposing a greater sentence than
agreed to in his plea agreement; (2)-(4) Counsel was ineffective
for failing to file a post-sentencing motion to withdraw his plea;
(5) Counsel was ineffective for failing to move to dismiss the
drug and firearms charges; and (6) Counsel failed to advise him of
viable defenses to the charges.
Each claim will be addressed
separately.
- 14 -
a.
Claim One
Fisher asserts that the trial court erred by imposing a
greater
sentence
than
originally
agreement (Doc. 1 at 3).
contemplated
in
his
plea
The original plea agreement called for
a forty-eight month sentence, but after the sentencing court
concluded that Fisher had committed additional crimes during his
three-week furlough, he was sentenced to twenty years in prison.
See discussion supra Part I.
Fisher now urges that insufficient
proof
sentencing
was
presented
determination
that
at
he
the
had
violated
the
hearing
plea
to
justify
agreement.
a
Id.
Fisher raised this claim on direct appeal, but the appellate court
refused to consider it because Fisher had not filed a motion to
withdraw his plea under Rule 9.140(b)(2)(A)(ii)(b) of the Florida
Rules of Appellate Procedure before appealing the issue. 3 See
discussion supra Part I Background.
Respondent urges that Claim One is procedurally defaulted on
habeas review because it was not properly raised in the state
courts (Doc. 10 at 9).
federal
claim
denied
Indeed, a federal court may not review a
by
the
state
independent state procedural rule.
2058, 2064 (2017).
court
on
an
adequate
and
Davilla v. Davis, 137 S. Ct.
For a claim to be procedurally barred, the
3
This rule provides that a defendant who pleads guilty or
nolo contendere may appeal a violation of the plea agreement only
“if preserved by a motion to withdraw plea.” Fla. R. App. P.
9.140(b)(2)(A)(ii)(b).
- 15 -
procedural rule relied on by the state court must serve as an
independent state law ground for denying relief, and may not be
intertwined
with
an
interpretation
of
federal
law.
Card
v.
Duggar, 911 F.2d 1494, 1516 (11th Cir. 1990) (citations omitted).
State rules are “adequate” if they are “timely established and
regularly followed.”
Johnson v. Lee, 136 S. Ct. 1802, 1804 (2016)
(quoting Walker v. Martin, 562 U.S. 307, 316 (2011) (internal
quotation mark omitted)).
These requirements are met here.
The
state court’s rejection of Fisher’s appeal was based upon an
independent and adequate state ground of procedural bar that is
regularly followed. See Ross v. State, 848 So. 2d 392 (Fla. 2d DCA
2003) (Ross’ argument that the trial court violated his plea
agreement could not be considered by appellate court because he
had not filed a motion to withdraw his plea in the trial court);
Patterson v. State, 188 So. 3d 913 (Fla. 5th DCA 2016) (Patterson’s
argument that the state had not prevented competent evidence
showing his failure to comply with his plea agreement was not
properly preserved for appeal because Patterson had not filed a
motion to withdraw his plea); Rackley v. State, 755 So. 2d 833,
834 (Fla. 5th DCA 2000) (“A defendant in a criminal case who has
entered a plea of guilty or nolo contendere pursuant to a plea
agreement may not file a direct appeal alleging violation of that
agreement unless the violation was preserved for review by a motion
to withdraw the plea.”).
- 16 -
Fisher does not recognize the default of this claim, arguing
instead that it was properly preserved and exhausted in state court
(Doc. 13 at 2).
Notwithstanding this assertion, in Claims Two,
Three, and Four of the instant petition, Fisher argues that no
motion to withdraw his plea was filed due to the ineffective
assistance
of
counsel.
The
Court
will
construe
Fisher’s
conflicting arguments as an attempt to blame Counsel for the
procedural default.
While ineffective assistance of counsel can
constitute cause for a procedural default, the exhaustion doctrine
requires that an ineffective assistance claim first be presented
to the state courts as an independent claim before it may be used
to establish cause for a procedural default in federal habeas
proceedings.
Murray v. Carrier, 477 U.S 478, 489 (1986).
Fisher
raised his ineffective assistance claims in his Rule 3.850 motion,
where they were rejected by the state courts — rejections found to
be reasonable by this Court. See discussion, infra, Claims Two,
Three, and Four.
Accordingly, ineffective assistance of counsel
cannot provide cause for Fisher’s default of Claim One.
Nor has
Fisher presented new evidence to show the applicability of the
actual innocence exception to the procedural bar.
Claim One is
dismissed as procedurally barred under 28 U.S.C. § 2254(b)(2).
b.
Claims Two, Three, and Four
In Claims Two, Three, and Four of his petition, Fisher asserts
that Counsel was constitutionally ineffective for failing to file
- 17 -
a motion to withdraw his plea after he was sentenced to a term of
prison greater than anticipated by the plea agreement (Doc. 1 at
4-13). 4
He asserts that Counsel should have argued in a motion to
withdraw
his
plea
Fisher’s
sentencing
that
“[t]he
hearing
hearsay
was
evidence
insufficient
presented
to
support
at
a
deviation from the agreed upon sentence that was contemplated in
the original plea agreement.”
Id. at 13.
Fisher raised this ineffective assistance claim in his third
amended Rule 3.850 motion, and it was dismissed by the postconviction court on the ground that a motion to withdraw Fisher’s
plea would have been futile since he had not offered evidence
showing that he had not violated the conditions of his release
(Ex. 14).
The post-conviction court explained:
[T]o prevail on a motion to withdraw plea
after sentencing, filed pursuant to Florida
Rule of Criminal Procedure 3.170(1), a
defendant
“must
demonstrate
a
manifest
injustice requiring correction.” Partlow v.
State, 840 So. 2d 1040, 1042 (Fla. 2003); see
also Campbell v. State, 75 So. 3d 757 (Fla. 2d
DCA 2011)(defendant is not entitled to
withdraw plea after sentencing absent a
showing of manifest injustice or clear
prejudice). Such motions are limited to the
4
Fisher raised this issue as three separate claims in order
to posit three different reasons his constitutional rights were
violated by Counsel’s failure.
However, each claim requires
Fisher to satisfy both prongs of Strickland.
Therefore, this
Court will treat these claims as raising the single issue of
whether any reasonable competent counsel would have decided
against moving to withdraw Fisher’s plea and whether he suffered
prejudice from Counsel’s failure to do so.
- 18 -
grounds specified in Florida Rule of Appellate
Procedure 9.140(b)(2)(A)(ii)(a)-(e).
As pointed out by the State, it is not enough
to say that the outcome of the appeal would
have been different. Strobridge v. State, 1
So. 3d 1240, 1242 (Fla. 4th DCA 2009).
Instead, the Defendant bears the burden in
Ground One of identifying how counsel’s acts
or omissions deprived him of an opportunity to
demonstrate
that
a
manifest
injustice
warranted the withdrawal of his plea.
The Court previously concluded that, to
demonstrate a manifest injustice under the
circumstances described above, the Defendant
maintained the burden of proving that he did
not violate the conditions of his release by
committing new law offenses between his plea
and sentencing hearings. Put another way, for
purposes of the instant motion, it is
essential for Defendant to plead and prove
that the State could not overcome a motion to
withdraw
plea
by
presenting
non-hearsay
evidence demonstrating that Defendant in fact
committed new law offenses between his plea
and sentencing in this case.
Ultimately, similar to Defendant's prior
motions, Ground One of the instant motion is
devoid of any allegation that the State could
not overcome a Rule 3.170(1) claim of manifest
injustice by presenting non-hearsay evidence
demonstrating
new
law
offenses
between
Defendant's plea and sentencing. As such, the
Court finds Defendant's Ground One claim of
ineffective assistance of counsel facially
insufficient for a failure to properly allege
prejudice.
(Ex. 14 at 3-4) (citations to the record and to footnotes omitted).
Fisher appealed the post-conviction court’s rejection of this
ineffective assistance claim, and Florida’s Second District Court
of Appeal affirmed without a written opinion (Ex. 21); Fisher v.
- 19 -
State, 185 So. 3d 1242 (Fla. 2d DCA 2016).
The post-conviction
court’s reasoning could have supported the state appellate court’s
silent affirmance of this claim.
Wilson, 834 F.3d at 1235.
Rule 3.170(l) of the Florida Rules of Criminal Procedure
permits a defendant to file a motion to withdraw a guilty plea
after sentencing on the grounds that an agreement was violated or
was involuntary.
See Fla. R. App. P. 9.140(b)(1)(A)(ii); Griffin
v. State, 899 So. 2d 514, 515 (Fla. 2d DCA 2005).
However, if
Fisher had breached the plea agreement by violating the terms of
his temporary release, he would not be entitled to withdraw his
plea. Sanders v. State, 567 So. 2d 539 (1990).
Fisher does not dispute that the terms of his temporary
release required him to refrain from unlawful activity between his
colloquy and his sentencing.
Nor does he dispute that he was
arrested on several drug charges during this interim.
In fact,
Fisher does not even allege that he did not violate the agreement
to refrain from criminal activity.
Rather, Fisher asserts that
the trial court made the determination of unlawful activity based
solely upon hearsay testimony from Officer Brad Combs.
Fisher
urges that, while hearsay evidence was admissible to demonstrate
proof
of
a
plea
violation,
“[t]he
hearsay
evidence
supported by non-hearsay evidence.” (Doc. 1 at 13).
cannot
support
Fisher’s
ineffective
reasons.
- 20 -
assistance
must
be
This argument
claim
for
two
First, to establish that Fisher violated his plea agreement,
the State needed only to present evidence establishing the breach
by a preponderance of the evidence. Neeld v. State, 977 So. 2d 740
(Fla. 2d DCA 2008).
to
rely
upon
To meet this burden, the State was entitled
hearsay
testimony,
although
hearsay
insufficient to sustain a revocation of probation.
alone
is
See Smith-
Curles v. State, 24 So.3d 702, 702-03 (Fla. 1st DCA 2009).
The
non-hearsay evidence, “need only support the hearsay evidence,”
not independently establish the violation. Russell v. State, 982
So.2d 642, 646 (Fla. 2008); Kalmbach v. State, 988 So.2d 1279,
1280 (Fla. 5th DCA 2008).
Contrary
to
Fisher’s
contention
otherwise,
reasonable
competent counsel could have concluded that the evidence presented
at Fisher’s sentencing hearing was not solely comprised of hearsay
testimony.
Although Detective Combs was not physically present
when Fisher sold drugs to a confidential informant, the informant
was wired, and Detective Combs listened to and monitored the
transactions through a listening device. See Raucho v. State, 915
So. 2d 278 (Fla. 4th DCA 2005) (officer’s testimony about what he
heard while monitoring a controlled drug buy on a listening device
was not hearsay because he personally heard it).
Even if Detective
Comb’s testimony about the controlled purchases was hearsay, it
was, nevertheless, admissible because it was supported by ample
non-hearsay evidence.
After Fisher left his residence, Detective
- 21 -
Combs followed him.
When the detective made contact with Fisher,
he was found with a large amount of money and a key to a bank
deposit box.
The bank deposit box contained more money and drugs.
Detective Combs personally saw the drugs in Fisher’s deposit box.
Detective
house.
Combs
also
observed
drugs
“everywhere”
in
Fisher’s
Since Detective Comb’s alleged hearsay testimony was
coupled with his eyewitness testimony concerning the search of
Fisher’s person, his home, and the lock box, Counsel had no grounds
on
which
to
argue
that
only
hearsay
testimony
supported
the
sentencing court’s finding that Fisher had committed additional
crimes during his furlough.
Next, and more importantly, to support a motion to withdraw
a plea after sentencing, the defendant must demonstrate a manifest
injustice. State v. Partlow, 840 So. 2d 1040, 1042 (Fla. 2003).
Even had Counsel filed a motion to withdraw Fisher’s plea, Fisher
would have needed to prove that he did not violate the plea
agreement. Powell v. State, 929 So. 2d 54, 55 (Fla. 5th DCA 2006)
(“This is a more stringent standard than a motion to withdraw a
plea filed before sentencing; the burden falls on the defendant to
prove
that
withdrawal
injustice.”).
is
necessary
to
correct
the
manifest
Given the overwhelming evidence showing that Fisher
sold drugs to a confidential informant only two days after his
guilty plea — a crime to which Fisher eventually pleaded guilty
and received a fifteen year prison sentence — reasonable competent
- 22 -
counsel could have concluded that Fisher could not make this
showing. 5
Counsel
is
not
meritless or futile motion.
ineffective
for
failing
to
make
a
See Brownlee v. Haley, 306 F.3d 1043,
1066 (11th Cir. 2002) (counsel was not ineffective for failing to
raise issues that clearly lack merit).
Claims Two through Four
fail to satisfy the first prong of Strickland, and are denied
pursuant to 28 U.S.C. § 2254(d).
c.
Claim Five
Fisher urges that Counsel was ineffective for failing to move
to dismiss the firearm and drug charges alleging possession (Doc.
1 at 14-15).
He asserts that the drugs were recovered from inside
the barbecue grill of a home owned by his friend, Mr. Caputo, and
that the gun was also recovered inside a vehicle owned by Mr.
Caputo (Doc. 1 at 14-15).
He asserts that there was no DNA or
fingerprints found on the gun or the drugs.
5
Id. at 15.
The Court takes judicial notice of the website for the
Charlotte County Clerk of Court.
http://www.co.charlotte.fl.us
A search of the website shows that on September 3, 2009, Petitioner
was adjudicated guilty of in case number 0802043CF on two counts
of trafficking in fourteen grams or more of morphine and opium,
two counts of selling, manufacturing, delivering, or possessing a
controlled substance, and four counts of possession of a controlled
substance without a prescription.
These crimes occurred on
November 6, 2008, November 21, 2008, and November 22, 2008; dates
which fall squarely between Petitioner’s November 4, 2008 colloquy
and his December 5, 2008 sentencing.
- 23 -
Fisher raised this claim in his Rule 3.850 motion, and the
post-conviction court rejected it on the ground that a motion to
dismiss would have been futile:
To the extent [this ground] relates to the
performance of counsel, the Court finds that
Defendant has failed to demonstrate any
likelihood that trial counsel would have
succeeded in challenging the sufficiency of
State’s evidence via a motion to dismiss filed
pursuant to Florida Rule of Criminal Procedure
3.190(c)(4).[ 6] As noted in State v. Cadore,
the question of whether a defendant has
“dominion and control” over contraband is
generally a fact issue for the jury. 59 So.
3d 1200, 1203 (Fla. 2d DCA 2011) (citing Isaac
v. State, 730 So. 2d 757, 758 (Fla. 2d DCA
1999)).
The issue of “knowledge” as an
element of constructive possession is an
ultimate question which a jury must decide on
factual inferences.
State v. St. Jean, 658
So. 2d 1056, 1057 (Fla. 5th DCA 1995). “In
considering a (c)(4) motion the trial judge
may not try or determine factual issues nor
consider the weight of conflicting evidence or
the credibility of witnesses[.]” State v.
Lewis, 463 So. 2d 561, 563 (Fla. 2d DCA 1985).
In his reply, Defendant concedes (at least
with respect to the firearm) that the issue of
possession is more appropriately considered by
a trier of fact, which presupposes a trial
that he avoided by entering a plea in this
case. Ultimately, trial counsel cannot be
deemed ineffective for failing to prevail on
a meritless issue. Teffeteller v. Dugger, 734
So. 2d 1009, 1020 (Fla. 1999).
As such,
Defendant cannot demonstrate either deficient
performance or prejudice as a result of
6
This rule allows a defendant to move to dismiss the indictment
or information before arraignment on the ground that “[t]here are no
material disputed facts and the undisputed facts do not establish a
prima facie case of guilt against the defendant.”).
- 24 -
counsel’s failure to file a Rule 3.190(c)(4)
motion
(Ex. 14 at 5).
Florida’s Second District Court of Appeal affirmed
without a written opinion (Ex. 21).
The post-conviction court’s
reasoning could have supported the state appellate court’s silent
affirmance of this claim.
Wilson, 834 F.3d at 1235.
According to the probable cause affidavit describing Fisher’s
March 23, 2008 arrest, Fisher fled when law enforcement attempted
to initiate a traffic stop.
a residence.
He was followed to the rear patio of
When law enforcement caught up to Fisher, they found
a large amount of cash in his pockets, narcotics in a grill on the
patio, and a pistol in the vehicle he was driving (Ex. 24 at 34).
At his evidentiary hearing, Counsel testified that the lanai
on which the drugs were found was very small, and Fisher was close
by.
Fisher was also the only person in the car with the gun (SH
at 47, 95).
Under these facts, Florida law is clear that Counsel
could not have challenged Fisher’s possession of the drugs or gun
on a pre-trial motion to dismiss.
In State v. Cadore, 59 So. 3d 1200 (Fla. 2d DCA 2011), just
as in the instant case, the defendant urged that drugs and a gun
found within her residence (but not within her immediate possession
or control) were not hers, and sought dismissal of her case on the
grounds that the undisputed facts failed to show that she had
dominion and control over the drugs or gun in the residence.
- 25 -
The
Second
District
Court
of
Appeal
rejected
Cadore’s
argument,
holding instead that the issue of constructive possession cannot
be determined in a Rule 3.190(c)(4) motion to dismiss “when the
State’s case is comprised entirely of circumstantial evidence
which requires a determination of factual issues.”
Id. at 1203
(citing Isaac v. State, 730 So.2d 757, 758 (Fla. 2d DCA 1999)
(noting that whether a defendant had “dominion and control” over
contraband is generally a fact issue for the jury); State v. St.
Jean, 658 So.2d 1056, 1057 (Fla. 5th DCA 1995) (the issue of
“knowledge” as an element of constructive possession is an ultimate
question which a jury must decide on factual inferences)).
Given that the trial court would not have been allowed to
determine factual issues or consider the weight of the evidence in
a pre-trial motion to dismiss, reasonable competent counsel could
have decided against filing a motion to dismiss based on Fisher’s
possession of the drugs or gun.
See State v. Burrell, 819 So. 2d
181, 182 (Fla. 2d DCA 2002) (“[A] defendant may not be convicted
solely
upon
inconsistent
circumstantial
with
the
evidence
defendant's
unless
the
reasonable
evidence
is
hypothesis
of
innocence. This does not mean, however, that the evidence cannot
establish a prima facie case sufficient to withstand a motion to
dismiss.”).
- 26 -
The state post-conviction court reasonably concluded that
Claim Six fails to satisfy Strickland’s performance prong, and the
claim is denied under 28 U.S.C. § 2254(d).
d.
Claim Six
Fisher asserts that Counsel failed to inform him of a viable
defense
to
his
drug
and
firearm
charges
(Doc.
1
at
16).
Specifically, he claims that Counsel “wholly failed to inform
Fisher that there was a viable defense to the narcotic charges and
the carrying a concealed firearm charge” because “the State would
have been unable to prove that Fisher had knowledge of the presence
of narcotics found hidden inside an outdoor barbeque grill and a
firearm found inside the vehicle belonging to Mr. Caputo.”
Id.
Fisher raised this claim in his Rule 3.850 motion, and an
evidentiary hearing was held.
Specifically finding the testimony
of defense counsel to be more credible than that of Fisher, the
post-conviction court concluded that Fisher had not demonstrated
deficient performance:
[T]rial counsel did discuss the possible
defense of the drug and gun charges with
[Fisher] and that [Fisher] made the decision
to accept the State’s offer based on the
maximum possible penalty faced on all charges
and even the maximum possible sentence on the
fleeing to elude and driving while license
suspended charges alone.
(Ex. 15 at 5).
The post-conviction further found that Fisher
could not show prejudice because “considering the totality of the
- 27 -
circumstances
surrounding
the
plea,
[Fisher]
would
not
have
insisted on going to trial had counsel discussed the possible
defense.”
Id.
Florida’s Second District Court of Appeal affirmed
without a written opinion (Ex. 21).
The post-conviction court’s
reasoning could have supported the state appellate court’s silent
affirmance of this claim.
Wilson, 834 F.3d at 1235.
At the evidentiary hearing, Fisher testified that no defenses
were discussed with Counsel prior to the entry of his plea (EH at
11).
However, when questioned by the state, defense attorney
Christopher O’Keefe testified that he explained the difficulty
with a constructive possession charge to Fisher prior to trial:
Q.
Did you discuss with Mr. Fisher whether
or not the State would be able to prove
that he that he possessed those drugs
that were found in the grill?
A.
Well, yes.
We talked that it’s a
constructive possession case, that the
drugs weren’t found on him, but they were
found in very close proximity.
Mr.
Fisher, I believe, the – I believe the
officer testified at depositions that he
was about four or five feet away from the
barbecue grill when he was apprehended.
So
we
talked
about
it
being
a
constructive possession case as opposed
to an actual possession case.
Q.
What else did you tell him about that
particular
charge
and
the
State’s
evidence?
A.
Well, we told him that although it being
a constructive possession case, there’s
a substantial amount of circumstantial
- 28 -
evidence against him. The totality of the
evidence was great.
First, there was a fleeing and eluding
charge that lasted several miles. Then
upon the vehicle coming to a stop, the
stop occurred in front of his friend’s
house.
Mr. Fisher, according to the
police officer’s version of the events,
immediately exited the vehicle and took
off running. The police officers exited
their – exec – they left their vehicles
and started pursuing Mr. Fisher behind
the home. One officer made entry through
the home, the front door itself, and that
he was caught there – quickly after
exiting the vehicle.
We told him that
the totality might be hard to sell it as
a constructive possession case.
Q.
When you say hard to sell, are you
referring to were you to go to trial and
present it to a jury?
A.
Correct.
Id. at 40-41.
O’Keefe further testified that Fisher agreed that
there was a lot of circumstantial evidence against him and that a
jury could possibly find him guilty if he went to trial.
Id. at
42.
Co-defense counsel Michael Raheb testified that the defense
strategy was to file a lengthy motion to suppress in an attempt to
get a better plea offer from the state (EH at 81).
He asserted
that Fisher agreed with the strategy, and when asked whether
Counsel had explained the state’s evidence against him, Raheb
replied:
- 29 -
It’s – from the very first time he came in, we
explained to him, look, they still have to
show the drugs are yours. The problem is if
you do take the stand, then obviously they get
to ask you who does the drugs belong to. So
if we’re playing devil’s advocate and you said
it wasn’t yours, they could believe you or
they could disbelieve you. The problem with
that is if we went to trial, the jury would
hear uncontroverted evidence that he was
driving, which was a felony, that he was
fleeing, and they they’d hear that he was
running away from the gun. So even if he were
to now say I was running away, he would have
to explain that to a jury. Now they may find
him not guilty, but there’s no automatic you
win. In other words, that would have been a
question for the jury; and given the other
facts we talked about, the fleeing, the
running, the jumping over the fence, and the
location of the drugs, there’s a high
probability the jury might say, well, it’s
yours.
Bur even if they didn’t think it’s
his, he understood that he was facing twenty
years from the point that he ran from the car,
notwithstanding the gun or the drugs.
Id. at 84.
Raheb further stated that he would not have felt
comfortable going to trial “when [Fisher is] driving the car, has
the gun and is found near the drugs and he never once told me it
wasn’t his drugs.
drugs.
He never told the investigator it wasn’t his
Why would I even suggest for a moment to go to trial?”
Id. at 95.
The post-conviction court’s determination that O’Keefe and
Raheb were more credible than Fisher and had actually explained
the possible defenses to him are factual determinations that Fisher
must rebut by clear and convincing evidence before he is entitled
- 30 -
to relief on this claim.
See Freund v. Butterworth, 165 F.3d 839,
862 (11th Cir. 1999) (questions of credibility and demeanor of a
witness
is
a
question
of
fact);
28
U.S.C.
§
2254(e)(1)(a
determination of a factual issue made by a State court shall be
presumed
correct
unless
rebutted
by
clear
and
convincing
evidence); Gore v. Sec’y, Dep’t of Corr., 492 F.3d 1273, 1300 (11th
Cir. 2007) (recognizing that while a reviewing court also gives a
certain amount of deference to credibility determinations, that
deference is heightened on habeas review).
Fisher has offered
nothing to rebut the state court’s factual finding that Counsel
informed him of the available defenses at trial.
Accordingly,
Fisher fails to show Counsel’s deficient performance.
Moreover, Fisher cannot demonstrate prejudice under Hill v.
Lockhart because he has not shown that, but for Counsel’s failure
to explain his available defenses, he would have insisted on going
to trial (and risked a ninety-year sentence) instead of entering
a plea in exchange for a sentence of forty-eight months in prison.
At the evidentiary hearing, Fisher admitted that, had he received
the forty-eight month sentence originally agreed upon, instead of
the
twenty-year
sentence
he
received
after
he
breached
the
agreement, he would not have filed this claim (EH at 22).
In
fact, even in his reply, Fisher does not ask that his conviction
be set aside so that he can proceed to trial (and risk a ninetyyear sentence if convicted); rather, he asks to be re-sentenced to
- 31 -
the forty-eight month sentence agreed upon before he committed
additional crimes during his furlough (Doc. 13 at 8).
Even if
Counsel’s performance was deficient, Fisher cannot demonstrate
prejudice under Hill, and he is not entitled to relief on Claim
Six.
Any of Fisher’ allegations not specifically addressed herein
have been found to be without merit.
Certificate of Appealability 7
IV.
Fisher is not entitled to a certificate of appealability.
prisoner
seeking
a
writ
of
habeas
corpus
has
no
A
absolute
entitlement to appeal a district court’s denial of his petition.
28 U.S.C. § 2253(c)(1).
Rather, a district court must first issue
a certificate of appealability (“COA”).
“A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such
a showing, Fisher must demonstrate that “reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that
7
Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court
must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Id. As this Court has
determined that Gomez is not entitled to habeas corpus relief, it
must now consider whether Gomez is entitled to a certificate of
appealability.
- 32 -
“the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Miller–El, 537 U.S. at 335–36. Fisher has not
made the requisite showing in these circumstances.
Because
Fisher
is
not
entitled
to
a
certificate
of
appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
The Florida Attorney General is DISMISSED from this
action as a named Respondent.
2.
Claim One of the amended 28 U.S.C. § 2254 petition for
habeas corpus relief filed by Luke Fisher (Doc. 1) is dismissed as
procedurally barred.
The remaining claims are denied on the
merits.
3.
Fisher is DENIED a certificate of appealability.
4.
The Clerk of Court is directed to terminate any pending
motions, enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of August, 2017.
SA: OrlP-4
Copies: Luke Fisher
Counsel of Record
- 33 -
31st
day
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