Link v. Secretary, DOC et al
Filing
25
OPINION AND ORDER denying 1 Petition for writ of habeas corpus. The Clerk shall enter judgment accordingly and a certificate of appealability is denied. The Clerk shall further terminate all pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 11/6/2020. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOHN GARY RICHARD LINK,
Petitioner,
v.
Case No:
2:17-cv-260-FtM-29MRM
SECRETARY, DOC, WARDEN, BAY
CORRECTIONAL FACILITY, and
FLORIDA ATTORNEY GENERAL,
Respondents.
OPINION AND ORDER
Petitioner John Gary Richard Link (petitioner or Link) filed
a Petition for Writ of Habeas Corpus By a Person in State Custody
Under 28 USC § 2254 (Doc. #1, Petition) on May 12, 2017.
Link, a
Florida prisoner, challenges his convictions and sentences for
burglary
of
an
unoccupied
structure,
criminal
mischief,
and
obstructing an officer without violence entered by the Twentieth
Judicial Circuit Court in and for Lee County in Case No. 11-CF18261.
(Doc. #1, p. 2; Doc. #15, p. 2).
The petition sets forth
a single ground for relief, asserting that the:
Post-conviction court committed reversible error when
denying appellant’s 3.850 motion for post-conviction
relief when making determination with facts that were
not supported by competent, substantial evidence, thus
prevented a proper application of the Strickland
standard.
(Doc. #1, p. 3).
Respondent filed a Response (Doc. #15, Response)
on August 17. 2018, including the state court record.
(Docs. ##
17, 17-1, 17-2).
Link filed a Reply on September 4, 2018. (Doc.
#18).
For the reasons set forth below, the Petition for Writ of Habeas
Corpus is denied.
I.
Applicable Federal Habeas Corpus Principles
The statutory authority of federal courts to issue habeas
corpus relief for persons in state custody is set forth in 28
U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA).
The AEDPA requires a state prisoner
seeking federal habeas relief to first “exhaus[t] the remedies
available in the courts of the State.”
28 U.S.C. § 2254(b)(1)(A).
If the state courts do not adjudicate the prisoner's federal claim
“on the merits,” a de novo standard of review applies in the
federal habeas proceeding; if the state courts do adjudicate the
claim on the merits, then the AEDPA mandates a deferential, rather
than de novo, review.
Kernan v. Hinojosa, 136 S. Ct. 1603, 1604
(2016).
This deferential standard is set forth in § Section 2254(d),
which provides:
“An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings
unless the adjudication of the claim—”
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
- 2 -
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
standard
intentionally difficult to satisfy.
is
both
mandatory
and
Sexton v. Beaudreaux, 585
U.S. ___, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S.
415, 419 (2014).
“Clearly established federal law” consists of the governing
legal principles in the decisions of the United States Supreme
Court when the state court issued its decision.
at 419.
White, 572 U.S.
Habeas relief is appropriate only if the state court
decision was “contrary to, or an unreasonable application of,”
that federal law. 28 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).
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
- 3 -
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
“A state court’s determination that
a claim lacks merit precludes federal habeas relief so long as
fair-minded jurists could disagree on the correctness of the state
court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).
See also Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298,
1301 (11th Cir. 2019) (“To justify federal habeas relief, the state
court’s decision must be so lacking in justification that there
was
an
error
.
.
.
beyond
any
possibility
for
fairminded
disagreement.”)(internal quotation marks omitted).
When reviewing a claim under § 2254(d), 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); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A]
state-court
factual
determination
is
not
unreasonable
merely
because the federal habeas court would have reached a different
conclusion in the first instance.”) (quoting Wood v. Allen, 558
U.S. 290, 293 (2010)). See also Morrow v. Warden, 886 F.3d 1138,
- 4 -
1146 (11th Cir. 2018).
For the deferential § 2254(d) standard to apply there must
have been an “adjudication on the merits” in state court.
An
adjudication on the merits does not require there be an opinion
from the state court explaining the state court's reasoning.
Harrington v. Richter, 562 U.S. 86, 98 (2011).
“When a federal
claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.”
99.
Richter, 562 U.S. at
“The presumption may be overcome when there is reason to
think some other explanation for the state court's decision is
more likely.” Richter, 562 U.S. at 99–100. This presumption applies
whether the state court fails to discuss the claims or discusses
some claims but not others. Johnson v. Williams, 568 U.S. 289,
293, 298-301 (2013).
While such a decision is an “adjudication on the merits,” the
federal habeas court must still determine the state court's reasons
for its decision in order to apply the deferential standard.
When
the relevant state-court decision on the merits is not accompanied
by its reasons,
the federal court should “look through” the
unexplained decision to the last related
state-court decision that does provide a
relevant rationale. It should then presume
that the unexplained decision adopted the same
- 5 -
reasoning. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on
different grounds than the lower state court's
decision, such as alternative grounds for
affirmance that were briefed or argued to the
state supreme court or obvious in the record
it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
The federal
court “looks through” the silent state court decision “for a
specific and narrow purpose—to identify the grounds for the higher
court's decision, as AEDPA directs us to do.”
Id. 138 S. Ct. at
1196.
II.
Timeliness, Exhaustion, and Evidentiary Hearing
Respondent concedes that the Petition is timely and that the
claim for relief was properly exhausted.
The Court agrees.
(Doc. #15, pp. 4-5).
Petitioner does not request an evidentiary
hearing, and the Court finds the facts are well-developed in the
record, so an evidentiary hearing is not otherwise warranted.
Schriro v. Landrigan, 550 U.S. 465, 474 (2007); 28 U.S.C. §
2254(e)(2).
III. Factual and Procedural Overview
On September 13, 2011, Link was charged by Information with
burglary
of
an
unoccupied
structure,
criminal
mischief,
obstructing an officer without violence (Ex. 1, pp. 2-3). 1
1
and
Link
The Court will refer to exhibits electronically filed by
Respondent on August 21, 2018 (Doc. #17-2) as “Ex. _” followed by
the page number electronically generated by the court upon filing.
- 6 -
also had two violation of probation cases pending, for a total of
three pending cases.
On June 26, 2013, Link proceeded to a jury
trial before Lee County Circuit Judge Bruce E. Kyle (Judge Kyle)
as to the charges in the Information.
The jury found Link guilty
as charged on all counts (Ex. 2, p. 5). Link was classified as a
habitual felony offender, and on August 12, 2013, was sentenced to
ten years on the burglary charge and time served on the criminal
mischief and obstructing an officer without violence charges (Ex.
3, pp. 7-16).
Link filed a notice of appeal (Ex. 4, p. 19). Link’s appellate
counsel filed an Anders 2 brief asserting there were no issues of
merits for appeal (Ex. 5, pp. 21-35). Link filed a pro se Notice
of Voluntary Dismissal (Ex. 6, pp. 37-38), and on June 1, 2015,
the Second District Court of Appeals granted Link’s voluntary
dismissal (Ex. 7, p. 40).
On July 8, 2015, Link filed a motion under Florida Rules of
Criminal Procedure Rule 3.850 alleging one ground of ineffective
assistance of counsel (Ex. 8, pp. 42-57).
Judge Kyle, serving as
the
accurately
State
post-conviction
trial
court,
summarized
petitioner’s claim as follows:
8. Defendant filed the present timely postconviction
motion on June 15, 2015.
In his motion, Defendant
raised a single ground of ineffective assistance of
counsel: "allowing a plea offer to lapse without
conveying to the State that Defendant had timely
2
Anders v. California, 386 U.S. 738 (1967).
- 7 -
accepted the offer prior to [its] expiration." In his
motion, Defendant alleges that prior to his trial, he
was offered a plea, that would resolve all three of his
pending cases "in exchange for 48 months in DOC." He
pleads that his attorney advised him that the State had
an "overwhelming" amount of evidence against him, and
that even if he prevailed at trial in case number 11CF-18261, he would still be subject to sentences in his
VOP cases that were greater than the prison term offered
in the deal. Defendant pleads that the plea offer was
open "until April 3, 2013." Defendant pleads that his
attorney said he had to notify him either by phone or in
writing before that date if he were to choose to accept
the State's offer. Defendant goes on to explain that
on March 31, 2013 - the Sunday before the Wednesday on
which the offer would lapse - he drafted a letter asking
his attorney to "accept the 48 months or try to get them
down to 36 months." He gave the letter to jail officials
for mailing on the following day, Monday, April 1, 2013.
Defendant then claims that "counsel was deficient . . .
by failing to convey to the State that [Defendant] had
timely accepted the 48 month offer, even if the State
again were to reject the 36 month counteroffer."
He
claims that the offer lapsed and was withdrawn "due to
counsel's deficient performance."
(Ex. 10, p. 238).
On
December
3,
2015,
the
post-conviction
court
held
an
evidentiary hearing at which Link was represented by appointed
counsel
(Ex.
9).
Three
witnesses
testified
on
behalf
of
Defendant: two friends, Jamie Dontas and Michael Dontas, and
Defendant himself.
The State called defendant's trial counsel,
K. J. Myllynen, and the State prosecutor assigned to Defendant's
case, Abraham Thornburg.
The post-conviction court set forth his
relevant findings:
12. . . . Rather, the facts relevant to this motion are
those surrounding Defendant's attempt to accept the plea
offer and the actions of defense counsel that followed.
- 8 -
13. Defendant testified at the hearing that he was
appointed a private attorney from the registry after his
prior two attorneys conflicted off due to Nelson
motions. He claimed that their first and only face-toface meeting was about thirty minutes long. He claimed
that his attorney told him that he did not care about
his case and was more concerned about getting his death
penalty license and about the fees he would earn by doing
Defendant's case.
Defendant also claimed that his
attorney never came to see him again at the jail and
they only spoke for a few minutes at a time at his
subsequent court dates. He testified that a 48 month
offer was extended to him at one of his court dates and
that he had two weeks to accept it. Defendant testified
that he wrote a letter to his attorney on Sunday, March
31 and gave it to jail officials for mailing on Monday,
April 1; the deadline to accept the plea was Wednesday,
April 3.
In his letter, he told his attorney to
negotiate a better deal, but if a better deal could not
be negotiated, he would accept the 48 month offer. He
testified that he did not get a response or find out
that the offer was gone until his next court date, when
his attorney told him that his only options now were to
enter an open plea or go to trial.
14. On cross-examination, Defendant claimed that it was
"always" his intention to enter a plea in his cases.
Despite this claim, he later confirmed that he rejected
two prior offers in his case: one for two years in prison
followed by three years of probation, and another for
four years in prison followed by four years of probation.
Defendant confirmed that he had the ability to call his
attorney from the jail, although his attorney would have
little to no ability to call him back.
Defendant
admitted that he did not know what his attorney's
schedule or workload was like and did not know when the
letter was actually mailed after he gave it to jail
officials.
15. Defendant's trial attorney K. J. Myllynen also
testified at the hearing. He has been a member of the
Florida Bar since 2008 and his practice focuses on
criminal defense and personal injury. He has an office
in Boca Raton, Florida and Ft. Lauderdale, Florida. In
contrast
to
Defendant's
testimony,
Mr.
Myllynen
testified that their initial meeting at the jail was
- 9 -
over three hours long. He remembers that Defendant was
very frustrated and had many concerns that he wanted to
discuss with him. Mr. Myllynen denied using vulgarity
during this meeting and said that Defendant asked him
about his credentials, which is how his death penalty
certification and fees came up.
Mr. Myllynen also
testified that he spoke with Defendant for "countless
hours" in the small interview room next to the
undersigned judge's courtroom, the purpose of which is
to allow attorneys and inmates to discuss their cases in
private before and after court dates.
16. Mr. Myllynen's description of the case leading up to
the four year plea offer was informative. At one point,
questions of Defendant's competency arose and a
competency evaluation was permitted by the Court. Mr.
Myllynen testified that Defendant absolutely refused the
four year offer leading up to the rise of the competency
issues and wanted the State's older offer of two years
in prison with three years of probation instead. When
Defendant was confirmed as competent to stand trial, the
State again offered him the four year deal at a hearing
on March 19, 2013.
Mr. Myllynen testified that he
advised Defendant to accept the offer, but Defendant "ad
nauseam" rejected the four year offer and insisted on
the prior offer of two years of prison with three months
of probation.
17. Most importantly, Mr. Myllynen testified that he
received Defendant's letter accepting the offer after
the offer had already closed on Wednesday, March [sic]
3, 2013. Although he did not remember the exact day he
received it, he said it was on Thursday, March [sic] 4
or Friday, March [sic] 5. After reading the letter, he
tried to call the assistant state attorney handling
Defendant's case and left at least two messages. Mr.
Myllynen next spoke with Defendant about the letter on
May 6, 2013, the next court date. He testified that a
Nelson hearing was scheduled for that day, but Defendant
chose to withdraw it and go to trial.
Mr. Myllynen
described Defendant as "adamant" that he would prevail
at trial.
18. Abraham Thornburg, the assistant state attorney who
was handling Defendant's cases, testified next.
He
testified that, prior to the competency evaluation, the
four year offer had actually been open for six months
- 10 -
and had lapsed without Defendant accepting it. Because
questions of Defendant's competency had risen, he
decided to re-offer the lapsed deal in an effort to avoid
any postconviction claims that Defendant was incompetent
during the earlier six month period when the offer was
open.
19. On cross-examination, Mr. Thornburg said that if Mr.
Myllynen had called him shortly after the plea offer had
lapsed and said that Defendant wanted to accept the plea,
he would have allowed it and set the case for a plea.
Mr. Thornburg was not asked about the messages left on
his voicemail by Mr. Myllynen.
20. On rebuttal, Defendant denied that he spoke with his
attorney for "countless hours" in the interview room
connected to the courtroom. He also admitted that he
is a five-time convicted felon, two of which were crimes
of dishonesty.
(Ex. 10, pp. 239-42).
The post-conviction court set forth the applicable law
as follows:
21. Under Strickland v. Washington, 466 U.S. 668 (1984),
in order to establish a prima facie case of ineffective
assistance
of
counsel,
a
defendant
must
allege
sufficient facts satisfying a two-pronged test. First,
he must identify particular acts or omissions by counsel
that are outside the broad range of reasonable
assistance under prevailing professional standards.
Id. at 690. Second, he must also demonstrate prejudice,
i.e., that a reasonable probability exists that, but for
counsel's error, the result in the case would have been
different. Id. at 694.
A "reasonable probability" is
that which is sufficient to undermine the confidence in
the outcome of the case. See King v. Strickland, 748
F.2d 1462 (11th Cir. 1984).
Counsel is strongly
presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment as a sound trial strategy.
Strickland, 466 U.S. at 690. Furthermore, "an error by
counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment."
- 11 -
Id. at 691.
22. Alcorn v. State, 121 So.3d 419 (Fla. 2013), sets
forth the necessary facts that must be alleged in order
to make a facially sufficient ineffective assistance of
counsel claim involving failure to convey a plea offer
o[r] misadvice regarding a plea offer.
However,
Defendant does not allege that he was misled or that he
was not adequately explained the consequences of
pleading, nor does he allege that his attorney failed to
convey some or all of the terms of the plea itself; he
confirmed in his motion and his testimony that counsel
advised him numerous times to accept the State's offer.
Moreover, Alcorn considered a case in which the
deficiency of counsel's performance was not in dispute.
Rather, "the question center[ed] on how to apply the
prejudice prong." Id. at 422.
The four requirements
above inform the courts as to "what the defendant must
show in order to demonstrate prejudice." Id.
Indeed,
the first requirement, "that [Defendant] would have
accepted the offer had counsel advised the defendant
correctly," assumes a deficiency in performance from the
beginning. Id.
(Ex. 10, pp. 242-43).
On January 8, 2016, the postconviction court denied Mr. Link’s
3.850 motion in a written order with attached exhibits.
(Ex. 10.)
The post-conviction court set forth its findings as follows:
23. Alcorn is not on point with the postconviction claim
here. Here, the prejudice caused by counsel's actions,
if deficient, is clear. Rather, the issue is whether
counsel's actions constituted ineffective assistance of
counsel in the first place. After reviewing the record
and hearing the testimony presented at the hearing, the
Court concludes that defense counsel's actions were not
ineffective, and therefore Defendant's postconviction
motion must be denied.
24. First of all, it is clear that Defendant was unable
to accept the plea offer because he mailed his letter
accepting the offer too close to the deadline, not
because of any action or inaction on the part of counsel.
Mr. Myllynen testified that he received the letter after
- 12 -
the offer had already lapsed, which is uncontroverted by
any other testimony or evidence presented at the
hearing. Because Mr. Myllynen had no control over when
Defendant mailed his letter, how quickly it arrived at
his office, or whether it would arrive before or after
the offer lapsed, it cannot reasonably be said that the
offer's expiration was due to any deficient performance
on the part of counsel.
25. Second, the Court is not persuaded by Defendant's
argument that defense counsel should have taken
additional unspecified actions after receiving the
letter and that his failure to do so is what caused the
plea offer to lapse.
Mr. Myllynen testified that he
called Mr. Thornburg to tell him about the letter
immediately after receiving it. When Mr. Thornburg did
not answer, he left a voicemail instead. Mr. Myllynen
left at least two such voicemails in an effort to speak
with Mr. Thornburg after receiving the letter.
The
Court finds this a reasonable action of a competent
attorney and rejects Defendant's position that defense
attorneys
must
barrage
the
State
with
multiple
repetitive phone calls and voicemails in such a
situation.
Moreover, the fact that Mr. Thornburg may
have been willing to entertain a late acceptance of the
offer cannot be a factor in the Court's consideration of
whether defense counsel's actions were ineffective,
unless counsel was aware of such willingness. There is
nothing in the record indicating that counsel was aware
of Mr. Thornburg's willingness to ignore the deadline he
had set for the plea offer, nor is it logical in general
to base the effectiveness standard of defense counsel on
discretional decisions of the State.
26. Third, the Court finds that Defendant's March 1 [sic]
letter was not a clear acceptance of the plea offer. In
the letter, which is attached to this order as exhibit
0, Defendant instructs his attorney to either try to
negotiate a better plea offer or accept the four year
offer.
Thus, in order for defense counsel to comply
with what was actually written in the letter, he would
have needed to speak with the State first in order to
make a final attempt at securing a better deal for his
client - without divulging that Defendant was willing to
accept
the
offer
if
further
negotiations
were
unsuccessful, because the State would have no reason to
strike a better deal if it knew Defendant would accept
- 13 -
the four year offer anyway. Therefore, Mr. Myllynen's
two messages in which he tells Mr. Thornburg about
receiving the letter, without explicitly saying that
Defendant wanted to accept the plea, complied fully with
the instructions Defendant had given to his attorney.
27. The Court understands that Defendant attempted to
accept the plea offer within the time limit. However,
he was deprived of the offer's benefits not because of
any action on the part of his attorney, but because he
attempted to accept the offer by mailing a letter at the
"last minute," in which he authorized his lawyer to
accept only if a better deal could not be achieved first.
Defendant was fully informed and aware of the deadline
set by the State, he was aware of the consequences of
the offer lapsing because an identical offer had been
extended to him previously, and his attorney had advised
him to accept the offer multiple times in the months
leading up to April 1, 2013. Counsel's actions were not
deficient.
Defendant has failed to prove at an
evidentiary hearing the ineffective assistance of
counsel alleged in his motion; therefore, his motion
must be denied.
(Ex. 10, pp. 243-45).
On January 28, 2016, Link filed a notice of appeal (Ex. 11).
After briefing, on November 16, 2016, the Second District Court of
Appeals affirmed the post-conviction court’s order denying Link’s
3.850 Motion without written opinion (Ex. 15). See also Link v.
State, 212 So. 3d 365 (Fla. 2d DCA 2016) (2D16-386). Mandate issued
on March 6, 2017 (Ex. 16).
IV.
§ 2254 Issues and Analysis
Petitioner argues that the post-conviction court committed
reversible error when it denied petitioner’s Rule 3.850 motion.
Petitioner
asserts
that
the
post-conviction
court
made
determinations of facts that were not supported by competent,
- 14 -
substantial evidence, which caused an improper application of the
Strickland standard.
Petitioner asserts that the rejection of his
claim that counsel was ineffective for failing to convey his timely
acceptance of the state’s 48-month plea offer was unreasonable
based upon the evidence and was contrary to Strickland.
For
the
reasons
set
forth
below,
the
Court
finds
that
petitioner is not entitled to relief under § 2254.
It is well-established that
[t]o prevail on a Sixth Amendment claim
alleging ineffective assistance of counsel, a
defendant must show that his counsel's
performance was deficient and that his
counsel's deficient performance prejudiced
him. To show deficiency, a defendant must show
that “counsel's representation fell below an
objective standard of reasonableness.” And to
establish prejudice, a defendant must show
“that there is a reasonable probability that,
but for counsel's unprofessional errors, the
result of the proceeding would have been
different.
Andrus v. Texas, 140 S. Ct. 1875, 1881 (2020) (internal citations
to Strickland omitted).
The state post-conviction court clearly
followed the correct law by applying the Strickland two-part
standard to claims of ineffective assistance of counsel arising
out of the plea-bargaining process.
See Missouri v. Frye, 566
U.S. 1134 (2012); Lafler v. Cooper, 566 U.S. 156 (2012).
In these
cases, the Supreme Court clarified that the Sixth Amendment right
to effective assistance of counsel extends specifically “to the
negotiation and consideration of plea offers that lapse or are
- 15 -
rejected.”
curiam).
In re Perez, 682 F.3d 930, 932 (11th Cir. 2012) (per
See also McKathan v. United States, 969 F.3d 1213, 1222
(11th Cir. 2020).
Link contends his letter was timely because it was delivered
to correctional officials for mailing before the expiration date
of the State’s offer.
This appears to be an argument that
Florida’s “mailbox rule” should apply to his correspondence to his
counsel.
In Florida, courts presume a legal document
from an incarcerated person was timely served
and filed if “it contained a certificate of
service showing that the document was placed
into the hands of prison officials for mailing
on a specific date and if the document would
have been timely filed or served had it been
received by the court on that date.” Wimbush
v. Pasco Cnty. Sheriff's Office, 829 So.2d
296, 297 (Fla. 2d DCA 2002) (citing Thompson
v. State, 761 So.2d 324, 326 (Fla. 2000)).
This “mailbox rule” applies to documents from
inmates in both civil and criminal cases. Id.
(citing Griffin v. Sistuenck, 816 So.2d 600
(Fla. 2002)).
Ross v. Ross, 93 So. 3d 495, 496 (Fla. 2d DCA 2012).
Houston v. Lack, 487 U.S. 266 (1988).
See also
A letter to defense counsel,
however, is not a legal document that is filed in court, but a
document protected by the attorney-client privilege.
Therefore,
the mailbox rule did not apply to Link’s correspondence with his
counsel.
Additionally, as discussed later, the correspondence was
not an unconditional acceptance of the State’s offer.
Link takes issue with several of the factual findings made by
- 16 -
the post-conviction court.
Link argues the evidence demonstrates
that he “accepted” the state plea offer “in a timely manner” and
that defense counsel “ignored” his acceptance and “failed to make
contact with the state” to inform the state of his acceptance of
the 48-month plea.
(Doc. #1, p. 6).
Link also argues that Mr.
Myllynen “had plenty of time to convey to the state that his client
wanted to accept the 48-month plea offer, but failed to do his
job.”
(Id., p. 7).
Petitioner claims the state post-conviction
court wrongly rejected the testimony of witnesses Jamie Dontas and
Michael
Dontas,
which
demonstrated
petitioner
was
trying
contact his attorney to accept the 48-month plea deal.
to
(Id.).
None of petitioner’s arguments are well-founded.
While it may be possible to accept an offer as of the date of
a mailing, Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1057
(2019) (“As first-year law students learn in their course on
contracts, there is a presumption that a mailed acceptance of an
offer is deemed operative when ‘dispatched’ if it is ‘properly
addressed.’” (citations omitted)), this was not the situation
here.
Link’s letter to counsel did not accept the State’s offer,
let alone in a timely manner.
Rather, it directed counsel to make
a counter-offer, and to accept the State’s offer only if his
counter-offer
was
rejected.
Thus,
the
post-conviction
properly found
that Defendant's March 1 [sic] letter was not a clear
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court
acceptance of the plea offer. In the letter, which is
attached to this order as exhibit 0, Defendant instructs
his attorney to either try to negotiate a better plea
offer or accept the four year offer. Thus, in order for
defense counsel to comply with what was actually written
in the letter, he would have needed to speak with the
State first in order to make a final attempt at securing
a better deal for his client - without divulging that
Defendant was willing to accept the offer if further
negotiations were unsuccessful, because the State would
have no reason to strike a better deal if it knew
Defendant would accept the four year offer anyway.
Therefore, Mr. Myllynen's two messages in which he tells
Mr. Thornburg about receiving the letter, without
explicitly saying that Defendant wanted to accept the
plea, complied fully with the instructions Defendant had
given to his attorney.
(Ex. 10, pp. 244-45.).
The record also establishes that counsel did not “ignore”
petitioner’s correspondence, or fail to make contact with the
State, or have “plenty of time” to do so.
The State renewed its
offer to Link of a 48-month plea at a court hearing held on March
19, 2013, and gave him until April 3, 2013 to accept.
Link wrote
his correspondence to counsel on March 31, 2013, and gave it to
jail personnel on Monday April 1, 2013.
Defense counsel did not
receive the letter until one or two days after the plea offer’s
expiration date and left at least two messages for the state
attorney about receiving the April 1, 2013 letter.
post-conviction
court’s
factual
findings
are
not
The State
unreasonable
under § 2254(d)(2) and are fully supported by the record, and there
has been no unreasonable application of those facts.
- 18 -
Further, the state court’s determination that the testimony
of Jamie Dontas and Michael Dontas was not relevant to the issue
of whether defense counsel failed to convey a timely accepted plea
offer is supported by the record.
Both witnesses could not confirm
the dates they allegedly called defense counsel and testified,
only that they asked him to visit Link in jail.
Neither witness
stated they communicated Link’s acceptance to the 48-month plea
deal to defense counsel.
(Ex. 9, pp. 86-100).
Based upon a thorough review of the record, the Court finds
Link has failed to show that 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).
V.
Certificate of Appealability
A prisoner seeking a writ of habeas corpus has no 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).
- 19 -
To make such
a showing, a petitioner 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 “the issues presented were adequate to deserve encouragement
to proceed further,”
Miller–El v. Cockrell, 537 U.S. 322, 335–36
(2003) (citations omitted).
Petitioner has not made the requisite
showing here and may not have a certificate of appealability on
the ineffective assistance of counsel claim set forth in his
Petition.
Accordingly, it is hereby
ORDERED:
1. Petitioner's Petition for Writ of Habeas Corpus By a Person
in State Custody Under 28 USC § 2254 (Doc. #1) is DENIED.
2. The Clerk shall enter judgment, terminate all deadlines
and motions, and close the case.
DONE and ORDERED at Fort Myers, Florida, this
November, 2020.
SA: FTMP-1
Copies:
Counsel of Record
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6th
day of
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