Fredrick v. Secretary, Department of Corrections et al
Filing
20
ORDER denying the Petition and dismissing the action with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 10/11/2011. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DERRICK FREDRICK,
Petitioner,
v.
Case No. 3:09-cv-340-J-34TEM
SECRETARY OF THE FLORIDA
DEPARTMENT OF CORRECTIONS,1
et al.,
Respondents.
ORDER
I. Status
Petitioner Fredrick initiated this action by filing a pro se
Petition for Writ of Habeas Corpus (Petition) (Doc. #1) under 28
U.S.C. § 2254 on March 31, 2009, pursuant to the mailbox rule.
He
challenges a 2007 state court (Duval County, Florida) judgment of
conviction for aggravated battery on a pregnant female on two
grounds.
Respondents have submitted a memorandum in opposition to
the Petition.
See Respondents' Answer to Petition for Writ of
Habeas Corpus (Response) (Doc. #16), filed March 4, 2010; Exhibits
(Resp. Ex.).
On May 15, 2009, the Court entered an Order to Show
Cause and Notice to Petitioner (Doc. #7), admonishing Petitioner
1
The Secretary of the Florida Department of Corrections is
the proper Respondent having custody of Petitioner.
regarding his obligations and giving Petitioner a time frame in
which to submit a reply.
Although given sufficient time to do so,
Petitioner has not submitted a brief in reply.
This case is ripe
for review.
II. Procedural History
On October 4, 2007, the State of Florida charged Derrick Demon
Fredrick with aggravated battery upon a pregnant female (domestic)
(count one) and felony battery (domestic) (count two).
A, Amended Information.
Resp. Ex.
On December 3, 2007, Fredrick entered a
negotiated plea of guilty to the charge of aggravated battery upon
a pregnant female in exchange for a sentence of seven years of
imprisonment and the State's agreeing to drop count two and not
file additional charges on separate allegations. Resp. Ex. B, Plea
of Guilty and Negotiated Sentence; Resp. Ex. D, Transcript of the
Plea Proceeding (Plea Tr.).
That same day, the trial court
sentenced Petitioner, as a habitual felony offender, to a term of
seven years of imprisonment.
Resp. Ex. C, Judgment.
Petitioner
did not appeal.
On May 18, 2008, Fredrick filed a pro se motion for post
conviction relief pursuant to Florida Rule of Criminal Procedure
3.850 (Rule 3.850 motion).
Resp. Ex. E.
In his request for post
conviction relief, Fredrick asserted that his defense counsel
(Jonathan Zisser and Justin Rost) were ineffective because they
failed to adequately investigate the facts, particularly relating
2
to whether the victim was pregnant and Fredrick's knowledge of the
victim's pregnancy at the time of the offense (ground one) and that
the trial court erred in accepting the plea without a sufficient
factual basis (ground two).
The State responded, see Resp. Ex. F,
and Petitioner replied, see Resp. Ex. G.
On September 12, 2008,
the circuit court denied Fredrick's Rule 3.850 motion for the
reasons set forth in the State's response.
Resp. Ex. H.
Fredrick appealed the circuit court's denial.2
Resp. Ex. I.
The State filed its Notice that it did not intend to file an answer
brief.
brief.
Resp. Ex. J.
Resp. Ex. K.
Petitioner then filed a pro se typewritten
On March 6, 2009, the appellate court
affirmed the denial per curiam, see Fredrick v. State, 4 So.3d 1224
(Fla. 1st DCA 2009); Resp. Ex. L, and the mandate issued on April
1, 2009, see Resp. Ex. M.
III. One-Year Limitations Period
The Petition is timely filed within the one-year period of
limitations.
See 28 U.S.C. § 2244(d); Response at 4-6.
IV. Evidentiary Hearing
"In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
2
The appellate court's online docket reflects that the court
did not receive Fredrick's handwritten pro se brief, dated
September 28, 2008. See Online docket, Derrick Demon Fredrick v.
State of Florida, Case No. 1D08-5546, website for the First
District Court of Appeal (http://www.1dca.org).
3
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted).
"It follows that if the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing."
Id.
The
pertinent facts of this case are fully developed in the record
before the Court.
[Petitioner's]
Because this Court can "adequately assess
claim[s]
without
further
factual
development,"
Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert.
denied, 541 U.S. 1034 (2004), an evidentiary hearing will not be
conducted.
V.
Standard of Review
The Court will analyze Petitioner's claims under 28 U.S.C. §
2254(d).
This standard is described as follows:
As explained by the Supreme Court, the
phrase
"'clearly
established
Federal
law' . . . refers to the holdings . . . of
[the Supreme Court's] decisions as of the time
of
the
relevant
state-court
decision."
Williams v. Taylor, 529 U.S. 362, 412, 120
S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We
have held that to be "contrary to" clearly
established federal law, the state court must
either (1) apply a rule "that contradicts the
governing law set forth by Supreme Court case
law," or (2) reach a different result from the
Supreme Court "when faced with materially
indistinguishable facts." Putman v. Head, 268
F.3d 1223, 1241 (11th Cir. 2003).
As regards the "unreasonable application"
prong of § 2254(d)(1), we have held as
follows:
4
A state court decision is an
unreasonable application of clearly
established law if the state court
unreasonably extends or fails to
extend a clearly established legal
principle to a new context.
An
application of federal law cannot be
considered
unreasonable
merely
because it is, in our judgment,
incorrect or erroneous; a state
court
decision
must
also
be
unreasonable. Questions of law and
mixed questions of law and fact are
reviewed de novo, as is the district
court's conclusion regarding the
reasonableness of the state court's
application of federal law.
Jennings v. McDonough, 490 F.3d 1230, 1236
(11th
Cir.
2007)
(quotation
marks
and
citations omitted). In sum, "a federal habeas
court making the 'unreasonable application'
inquiry should ask whether the state court's
application of clearly established federal law
was objectively unreasonable." Williams, 529
U.S. at 409, 120 S.Ct. at 1521. Finally, 28
U.S.C. § 2254(e)(1) commands that for a writ
to issue because the state court made an
"unreasonable determination of the facts," the
petitioner must rebut "the presumption of
correctness [of a state court's factual
findings] by clear and convincing evidence."[3]
28 U.S.C. § 2254(e)(1).
Ward v. Hall, 592 F.3d 1144, 1155-56 (11th Cir.), cert. denied, 131
S.Ct. 647 (2010).
Finally, for a state court's resolution of a claim to be an
adjudication on the merits, so that the state court's determination
3
This presumption of correctness applies equally to factual
determinations made by state trial and appellate courts." Bui v.
Haley, 321 F.3d 1304, 1312 (11th Cir. 2003) (footnote omitted)
(citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
5
will be entitled to deference for purposes of federal habeas corpus
review under AEDPA, all that is required is a rejection of the
claim on the merits, not an opinion that explains the state court's
rationale for such a ruling. Harrington v. Richter, 131 S.Ct. 770,
785 (2011) (holding that § 2254(d) does not require a state court
to give reasons before its decision can be deemed to have been
adjudicated on the merits); Wright v. Sec'y for the Dep't of Corr.,
278 F.3d 1245, 1255 (11th Cir. 2002), cert. denied, 538 U.S. 906
(2003).
Thus,
to
the
extent
that
Petitioner's
claims
were
adjudicated on the merits in the state courts, they must be
evaluated under § 2254(d).
VI. Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants effective
assistance of counsel.
counsel's
performance
That right is denied when a defense
falls
below
an
objective
reasonableness and thereby prejudices the defense."
standard
of
Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
6
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment."
Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different.[4] A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding."
Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.
Harrington, 131 S.Ct. at 787-88.
The two-part Strickland test applies to ineffective assistance
claims concerning both the decision to accept a guilty plea offer
and the decision to forgo a plea offer and stand trial.
Hill v.
Lockhart, 474 U.S. 52, 58-59 (1985). Since both prongs of the twopart Strickland test must be satisfied to show a Sixth Amendment
violation, "a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa." Ward,
592 F.3d at 1163 (citation omitted).
4
"Surmounting Strickland's
In the context of an ineffective assistance challenge to the
voluntariness of a guilty or no contest plea, Petitioner must show
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).
7
high bar is never an easy task."
Harrington, 131 S.Ct. at 788
(quoting Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010)).
A state court's adjudication of an ineffectiveness claim is
accorded great deference. "The standards created by Strickland and
§ 2254(d) are both 'highly deferential,' [Strickland], at 689, 104
S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem,
review is 'doubly' so, Knowles[5], 556 U.S., at ----, 129 S.Ct. at
1420."
Harrington, 131 S.Ct. at 788.
The question "is not whether a federal
court
believes
the
state
court's
determination" under the Strickland standard
"was incorrect but whether that determination
was unreasonable - a substantially higher
threshold." Schriro, supra, at 473, 127 S.Ct.
1933. And, because the Strickland standard is
a general standard, a state court has even
more latitude to reasonably determine that a
defendant has not satisfied that standard.
See Yarborough v. Alvarado, 541 U.S. 652, 664,
124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)
("[E]valuating whether a rule application was
unreasonable requires considering the rule's
specificity. The more general the rule, the
more leeway courts have in reaching outcomes
in case-by-case determinations").
Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009); see also
Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004) ("In
addition to the deference to counsel's performance mandated by
Strickland, the AEDPA adds another layer of deference--this one to
5
Knowles v. Mirzayance, 129 S.Ct. 1411 (2009).
8
a state court's decision--when we are considering whether to grant
federal habeas relief from a state court's decision.").
VII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Fredrick claims that counsel (Jonathan Zisser
and Justin Rost) were ineffective because they failed to properly
investigate the charges and advise him.
He asserts that, if
counsel had informed him that the prosecution would have to prove
the victim was pregnant at the time of the offense, he would not
have entered the plea.
Specifically, he claims that that counsel
failed to: (1) contact staff and physicians at the abortion clinic
to verify the victim's statements that she had an abortion; (2)
interview
individuals
(disclosed
by
the
prosecution
during
discovery) to ascertain whether or not the victim was in fact
pregnant at the time of the incident; (3) move to compel disclosure
of the deposition of Dr. Scott Brady, who had stated under oath
that he had no knowledge of the victim or any pregnancy; (4) move
to dismiss the charges against Fredrick due to the substantial
inconsistencies in the police reports, probable cause affidavit,
victim's statement, and victim's deposition; and (5) secure the
testimony of several key witnesses whose testimony would have
changed the outcome of the proceeding.
Additionally, Fredrick
states that, at the time of the incident, he had no reason to
believe the victim was pregnant, that the victim had personally
9
informed him that she had an abortion and was no longer pregnant
with his child, and that he informed counsel (Jonathan Zisser), at
their initial meeting, that the victim had an abortion prior to the
May 20, 2007 incident.
As acknowledged by the parties, Petitioner raised this ground
in his Rule 3.850 motion.
In responding, the State asserted, in
pertinent part:
Defendant
makes
several
allegations
regarding deficiencies in counsel and the
facts of the case.
Specifically, the Defendant alleges that
he had no personal knowledge of the victim's
pregnancy at the time of the offense and
argues that defense counsel was deficient in
his investigation of that issue. However, the
transcript of the proceedings is clear as to
what the Defendant actually believed.
The State provided a factual basis as
requested by the Court and specifically noted
"and at the time of committing the battery
knew or should have known that she was
pregnant.["]
(T.10. 9-11).
The Court
inquired of the defendant in the following
dialogue:
THE COURT: Mr. Frederick, is
Mr. Gaynor describing the incident
that you are pleading guilty to?
THE
DEFENDANT:
(T.10. 16-19).
Yes,
sir.
Additionally, the Court made a lengthy
inquiry of the Defendant's feelings regarding
the plea and the defense counsel's assistance
of the Defendant during the course of his
case.
10
THE COURT: Is this what Mr.
Rost wants you to do or what you
feel like you want to do yourself?
THE DEFENDANT: What I feel like
I want to do myself. (T.5. 22-25).
The Court further inquired of this
Defendant whether defense counsel had provided
him with appropriate representation. (T.8-9).
THE COURT: Have you had enough
time to discuss all of the facts and
circumstances of your case (T.8. 2425) fully with Mr. Rost, including
any possible defenses that you might
use if you went to trial? (T.9. 12).
THE DEFENDANT: Yes, sir.
THE COURT: Has he answered your
questions?
THE DEFENDANT: Yes, sir.
THE COURT: Are there any
witnesses
you
want
him
to
investigate that he hasn't already
done?
THE DEFENDANT: No, sir.
THE COURT: Are there any
motions you want him to file that he
hasn't already done?
THE DEFENDANT: No, sir.
THE COURT: Are you satisfied
with his representation of you?
THE DEFENDANT: Yes, sir. (T.9.
3-14).
Each of this Defendant's claims is
substantively refuted by the transcript of his
plea.
11
Resp. Ex. F at 29-31.
In denying the Rule 3.850 motion as to this
claim "for the reasons set forth" in the State's response, the
circuit court attached the State's response, as exhibit A, and made
it a part of the court's order.
Resp. Ex. H.
Upon Fredrick's
appeal, the appellate court affirmed the trial court's denial per
curiam.
Assuming the appellate court affirmed the denial of Fredrick's
post conviction motion as to this claim on the merits, there are
qualifying state court decisions.
Therefore, this claim will be
addressed applying the deferential standard for federal court
review of state court adjudications required by AEDPA.
After a
thorough review of the record and the applicable law, the Court
concludes that the state courts' adjudications of this claim were
not contrary to clearly established federal law and did not involve
an unreasonable application of clearly established federal law.
Nor were the adjudications based on an unreasonable determination
of the facts in light of the evidence presented in the state court
proceedings.
Thus, Petitioner is not entitled to relief on the
basis of this ineffectiveness claim.
Alternatively, if the state courts' adjudications of this
claim are not entitled to deference under AEDPA, Petitioner's claim
is, nevertheless, without merit.
court's conclusion.
The record supports the trial
As previously explained, Fredrick entered a
plea of guilty to one count of aggravated battery committed upon a
12
pregnant female.
At the plea hearing, defense counsel (Justin
Rost) announced that Fredrick had authorized him to enter a plea of
guilty to the charge of aggravated battery upon a pregnant female
in exchange for a sentence of seven years of imprisonment and the
State's agreeing to drop count two and not file additional charges
relating to "the allegations made on May 11th and 12th."
at 3-4.
Plea Tr.
Fredrick confirmed that he was entering the guilty plea
with his full knowledge and consent and because it was what he
wanted to do.
Id. at 5.
When the trial judge informed Fredrick
that he did not have to plead guilty, but instead could plead not
guilty and proceed to trial, Fredrick affirmed that he understood
he had that option.
Id. at 6.
Next, when the trial judge advised
Fredrick that the maximum sentence that he could receive for the
charge would be thirty years of imprisonment, Fredrick affirmed
that he understood.
The trial judge then proceeded to advise him of his rights to
proceed to trial, to call and confront witnesses, and to have those
witnesses testify even if they preferred not to testify.
Id.
Fredrick acknowledged that he understood his rights and that, by
pleading guilty, he would give up his rights to call and confront
witnesses and proceed to trial.
Id. at 8.
The trial judge asked
Fredrick about his lawyer's statements relating to the negotiated
sentence and if anyone had promised him anything different or
anything in addition to what was stated by his lawyer to persuade
13
him to plead guilty, and Fredrick answered "[n]o, sir."
Id.
When
the trial judge asked if anyone had threatened, intimidated, or
coerced him into pleading guilty, Fredrick again answered, "[n]o,
sir."
Id.
Next, as noted in the State's response to Fredrick's Rule
3.850
motion,
the
trial
judge
inquired
as
to
counsel's
representation, and the following colloquy ensued.
THE COURT: Have you had enough time to
discuss all of the facts and circumstances of
your case fully with Mr. Rost, including any
possible defenses that you might use if you
went to trial?
THE DEFENDANT: Yes, sir.
THE COURT: Has he answered your questions?
THE DEFENDANT: Yes, sir.
THE COURT: Are there any witnesses you
want him to investigate that he hasn't already
done?
THE DEFENDANT: No, sir.
THE COURT: Are there any motions you want
him to file that he hasn't already done?
THE DEFENDANT: No, sir.
THE COURT: Are you satisfied with his
representation of you?
THE DEFENDANT: Yes, sir.
Id. at 8-9.
Moreover, Fredrick confirmed that he understood that,
by pleading guilty, he was admitting that he, in fact, did commit
the offense.
Id. at 9.
Upon the judge's request, the State
14
briefly recited the factual basis for the aggravated battery
charge.
Had we proceeded to trial, the state would
have shown that Derrick Frederick on May 20th,
2007, in Duval County, Florida, knowingly
committed a battery upon a family member,
Tamika Anitia Frederick, now Tamika Kay, a
pregnant female, by actually and intentionally
touching or striking Ms. Frederick against her
will, and at the time of committing the
battery knew or should have known that she was
pregnant, contrary to Section 784.045(1((b).
Id. at 10.
Defense counsel neither objected nor stated exceptions
to the recited facts, and Fredrick agreed that he was pleading
guilty to those recited facts.
Id.
Accordingly, the court found
"there is a factual basis" for the guilty plea.
Id.
Additionally, Fredrick affirmed that he understood everything
relating to the plea that the trial judge had told him during the
proceeding and did not need additional time to think about his
decision.
Id. at 11.
When the trial judge asked Fredrick if he
had any questions for him or counsel, Fredrick answered, "[n]o,
sir."
Id
After Fredrick acknowledged that he still wished to
enter the plea, see id. at 12, the trial judge stated:
Let the record reflect that I find that
Mr. Fredrick has entered his plea freely,
intelligently, and voluntarily with a full and
complete understanding of the nature of the
offense, the maximum sentence, and the
consequences of his plea. I therefore accept
his plea of guilty.
Id. at 12.
As agreed in the plea agreement, see Resp. Ex. B, the
State entered a nolle prosequi with respect to the charge for
15
felony battery (domestic) (count two).
Plea Tr. at 14.
The trial
court then sentenced Fredrick, as a habitual felony offender, to a
term of seven years of imprisonment.
In
evaluating
the
performance
prong
of
the
Strickland
ineffectiveness inquiry, there is a strong presumption in favor of
competence.
The
inquiry
is
"whether,
in
light
of
all
the
circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance."
Strickland,
466 U.S. at 690. "[H]indsight is discounted by pegging adequacy to
'counsel's perspective at the time' . . . and by giving a 'heavy
measure of deference to counsel's judgments.'"
545 U.S. 374, 381 (2005) (citations omitted).
Rompilla v. Beard,
Thus, Petitioner
must establish that no competent attorney would have taken the
action that counsel, here, chose.
United States v. Freixas, 332
F.3d 1314, 1319-20 (11th Cir. 2003).
At the plea hearing, Fredrick affirmed that counsel had
answered all of his questions and had discussed all the facts and
circumstances of his case, including any possible defenses that he
might use if he proceeded to trial.
Plea Tr. at 8-9.
Moreover,
Fredrick acknowledged that there were not any additional witnesses
that he wanted counsel to investigate.
Id. at 9.
The United
States Supreme Court has determined that "the representations of
the defendant . . . [at a plea proceeding] as well as any findings
made by the judge accepting the plea, constitute a formidable
16
barrier
in
any
subsequent
collateral
proceedings.
Solemn
declarations in open court carry a strong presumption of verity."
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Moreover, "[a]
reviewing federal court may set aside a state court guilty plea
only for failure to satisfy due process: If a defendant understands
the charges against him, understands the consequences of a guilty
plea, and voluntarily chooses to plead guilty, without being
coerced to do so, the guilty plea . . . will be upheld on federal
review." Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir.) (en
banc), cert. denied, 502 U.S. 835 (1991).
Fredrick now asserts that counsel (Zisser and Rost) should
have contacted the abortion clinic or sought the opinion of an
independent expert to determine whether the victim was pregnant on
the date of the incident.
Fredrick acknowledges that counsel
deposed Dr. James L. Jones, on November 9, 2007, prior to the plea
hearing.
On cross-examination, the following colloquy transpired:
[PROSECUTOR]:
Q
Khary
Gaynor
with
the
State
Attorney's Office. Doctor, in reviewing these
records, given the residents' notes of a
pregnancy on both May 12th and May 20th as
well as the facts ultrasound [sic] were done
and show some sort of mass, perhaps a
gestational sack, based on the records alone
and the notations that the residents have
made, do you have any indication from these
records that an abortion would have been
performed on this patient prior to the May
20th date that would suggest that only
hormones would be present to show a pregnancy?
17
A
Well, this ultrasound is not a great
quality, but appears to show the presence of a
gestational sack which would have been removed
if an abortion had been performed.
Q
So based on the ultrasound and the
residents' notes, this woman would have been
pregnant on May 12th?
A
It would be a very safe bet that she
was pregnant. Yes.
Resp. Ex. K, Appendix A, Deposition of Dr. James Jones, at 19-20.
Thus,
given
that
the
medical
records
reflected
the
victim's
intrauterine pregnancy at six weeks on May 20th, id. at 12-13,
counsels' performance was within the wide range of professionally
competent assistance.
Even
assuming
arguendo
deficient
performance
counsel, Petitioner has not shown prejudice.
by
defense
Petitioner has not
shown a "reasonable probability that, but for counsel[s'] errors,
he would not have pleaded guilty and would have insisted on going
to trial."
Hill, 474 U.S. at 59.
Petitioner acknowledged that he
pled guilty because he was guilty and in fact did commit the
offense.
Plea Tr. at 9.
If a jury had found Fredrick guilty of
aggravated battery upon a pregnant female, he would have faced a
maximum of thirty years of imprisonment, as a habitual felony
offender. Additionally, the State likely would have prosecuted him
for felony battery (domestic) (count two) and could have filed
additional charges relating to two other incidents occurring on May
11th and 12th.
However, upon entering the guilty plea, the State
18
agreed to enter a nolle prosequi as to count two and not file
additional charges. Therefore, Fredrick's ineffectiveness claim is
without merit since he has shown neither deficient performance nor
resulting prejudice.
B. Ground Two
As ground two, Petitioner claims the trial court improperly
accepted the guilty plea without a sufficient factual basis to
substantiate the essential elements of the offense.
raised this ground in his Rule 3.850 motion.
Petitioner
In responding, the
State argued that the prosecutor had provided a factual basis and
had noted that Fredrick "at the time of committing the battery knew
or should have known that [the victim] was pregnant."
29-30 (quoting Plea Tr. at 10).
Resp. Ex.
The circuit court denied the Rule
3.850 motion with respect to this issue based on the State's
reasoning.
Upon Fredrick's appeal, the appellate court affirmed
the circuit court's denial per curiam.
Assuming the appellate court affirmed the denial of Fredrick's
post conviction motion as to this claim on the merits, there are
qualifying state court decisions.
Thus, this claim will be
addressed applying the deferential standard for federal court
review of state court adjudications.
Following a review of the
record and the applicable law, the Court concludes that the state
courts' adjudications of this claim were not contrary to clearly
established
federal
law,
did
19
not
involve
an
unreasonable
application of clearly established federal law, and were not based
on an unreasonable determination of the facts in light of the
evidence
presented
in
the
state
court
proceedings.
Thus,
Petitioner is not entitled to relief on the basis of this claim.
Additionally,
even
assuming
that
the
state
courts'
adjudications of this claim are not entitled to deference under
AEDPA and assuming that Fredrick has raised a cognizable federal
claim,6
Petitioner's
claim
is
without
merit.
The
Amended
Information, relating to count one, read:
DERRICK DEMON FREDERICK on May 20, 2007,
in the County of Duval and the State of
Florida, knowingly committed a battery upon a
family or household member, Tomeka Anicia
Frederick, a pregnant female, by actually and
intentionally touching or striking Tomeka
Anicia Frederick against her will, and at the
time of committing the battery knew or should
have known that Tomeka Anicia Frederick was
pregnant, contrary to the provisions of
Sections 784.045(1)(b) and 741.28, Florida
Statutes.
Resp. Ex. A (emphasis added).
Thus, as reflected in the Amended
Information, the State was required to prove that (1) Fredrick
actually and intentionally touched or struck the victim against her
will, and (2) at the time of committing the battery, Fredrick knew
or should have known that the victim was pregnant.
As previously
stated, the prosecutor set forth a sufficient factual basis for the
plea, without any exceptions or objections to the facts by defense
6
See Response at 27-29.
20
counsel.
Plea Tr. at 10.
Accordingly, the trial judge found that
there was a factual basis for Fredrick's plea and thereafter
accepted his guilty plea.
Id. at 10, 12.
VIII. Conclusion
Upon consideration of the foregoing, the undersigned finds
that "[u]nder the doubly deferential judicial review that applies
to a Strickland claim evaluated under the § 2254(d)(1) standard,
see Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d
1 (2003) (per curiam)," Petitioner's ineffective assistance claims
fail. Knowles, 129 S.Ct at 1420. In the alternative, Petitioner's
claims are without merit.
Accordingly, for the above-stated
reasons, the Petition will be denied, and this case will be
dismissed with prejudice.
IX. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If
Petitioner
appealability,
appealability
the
is
seeks
issuance
undersigned
not
warranted.
of
opines
This
a
that
certificate
a
Court
certificate
should
issue
of
of
a
certificate of appealability only if the Petitioner makes "a
substantial showing of the denial of a constitutional right."
U.S.C. §2253(c)(2).
28
To make this substantial showing, 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
21
presented
were
'adequate
to
deserve
encouragement
to
proceed
further,'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Where
a
constitutional
district
claims
court
on
the
has
rejected
merits,
the
a petitioner's
petitioner
must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
Slack, 529 U.S. at 484.
See
However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling."
Id.
Upon consideration of the record as a whole, this Court will deny
a certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. #1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
22
3.
If Petitioner appeals the denial of the Petition, the
Court denies a certificate of appealability.
has
determined
that
a
certificate
of
Because this Court
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case.
Such termination shall serve as a denial of
the motion.
4.
The Clerk of the Court shall close this case.
DONE AND ORDERED at Jacksonville, Florida, this 11th day of
October, 2011.
sc 10/11
c:
Derrick Fredrick
Ass't Attorney General (Conley)
23
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