McCullough v. Secretary, Department of Corrections et al
Filing
15
ORDER denying 1 petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instuctions to the Clerk. Signed by Judge Brian J. Davis on 11/13/2015. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LITTLE BOOKER T. MCCULLOUGH,
Petitioner,
vs.
Case No. 3:13-cv-408-J-39JRK
SECRETARY, DOC, et al.,
Respondents.
ORDER
I. STATUS
Petitioner Little Booker T. McCullough is proceeding on a
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a
Person
in
State
Custody
(Petition)
(Doc.
1).
The
Petition
challenges a 2009 state court (Duval County) conviction for sale or
delivery of cocaine. Id. at 1. Petitioner raises three grounds of
ineffective assistance of counsel.
Upon review, no evidentiary
proceedings are required in this Court.
Respondents, on October 16, 2013, filed an Answer to Petition
for Writ of Habeas Corpus (Response) (Doc. 10) and Appendix (Doc.
10).1
Petitioner filed a Response to Order (Doc. 14) stating that
1
With respect to the Petition, the Court will reference the
page numbers assigned through the electronic docketing system. The
Court will refer to the exhibits in the Appendix (Doc. 10) as "Ex."
Where provided, the page numbers referenced in this opinion are the
Bates stamp numbers at the bottom of each page of the exhibit.
Otherwise, the page number on the particular document will be
referenced.
he
does
not
intend
to
file
a
reply,
but
will
rely
on
the
allegations and claims stated in the Petition. See Order (Doc. 6).
II. STANDARD OF REVIEW
The Court will analyze Petitioner's claims under 28 U.S.C. §
2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act (AEDPA).
"By its terms [28 U.S.C.] § 2254(d) bars
relitigation of any claim 'adjudicated on the merits' in state
court, subject only to th[re]e exceptions." Harrington v. Richter,
562 U.S. 86, 98 (2011).
The exceptions are: (1) the state court's
decision was contrary to clearly established federal law; or (2)
there
was
an
unreasonable
application
of
clearly
established
federal law; or (3) the decision was based on an unreasonable
determination of the facts.
Id. at 100.
While analyzing Petitioner's claims pursuant to 2254(d) as
amended by AEDPA, the Court recognizes that there is a presumption
of correctness of state courts' factual findings unless rebutted
with clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
This
presumption of correctness applies to the factual determinations of
both trial and appellate courts.
See Bui v. Haley, 321 F.3d 1304,
1312 (11th Cir. 2003).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims he received the ineffective assistance of
counsel in violation of the Sixth Amendment to the United States
Constitution.
In order to prevail on this Sixth Amendment claim,
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he must satisfy the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 688 (1984), requiring that he show both
deficient performance (counsel's representation fell below an
objective standard of reasonableness) and prejudice (there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different).
In the context of an ineffective assistance challenge to the
voluntariness of a guilty or no contest plea, a 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).
This high hurdle is not easily surmountable:
in a post conviction challenge to a guilty
plea:
[T]he
representations
of
the
defendant, his lawyer, and the
prosecutor at [the plea] hearing, as
well as any findings made by the
judge accepting the plea, constitute
a
formidable
barrier
in
any
subsequent collateral proceedings.
Solemn declarations in open court
carry a strong presumption of
verity. The subsequent presentation
of
conclusory
allegations
unsupported by specifics is subject
to
summary
dismissal,
as
are
contentions that in the face of the
record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73–74, 97
S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)
(citations omitted); see also United States v.
Gonzalez–Mercado, 808 F.2d 796, 799–800 and n.
8 (11th Cir. 1987) (while not insurmountable,
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there is a strong presumption that statements
made during a plea colloquy are true, citing
Blackledge and other cases).
Bryant v. McNeil, No. 4:09CV22-SPM/WCS, 2011 WL 2446370, at *2
(N.D. Fla. May 17, 2011) (Report and Recommendation) (Not Reported
in F.Supp.2d), report and recommendation adopted by Bryant v.
McNeil, No. 4:09CV22-SPM/WCS, 2011 WL 2434087 (N.D. Fla. June 16,
2011).
IV.
PROCEDURAL HISTORY
The Court provides a brief history of the case to provide
context for the three grounds raised in the Petition.
Petitioner
was charged by information with sale or delivery of cocaine and
resisting an officer without violence.
Ex. A, Information.
The
state filed a Notice of Intent to Classify Defendant as an Habitual
Felony Offender.
of Guilty.
Ex. C.
Ex. B.
On May 12, 2009, Petitioner signed a Plea
Petitioner pled straight up to the court on the
charge of sale or delivery of cocaine.2
(Exhibit "I") at 67.
Ex. J, Plea Transcript
The court accepted the plea, finding a
factual basis for the entry of the plea and Petitioner freely and
voluntarily entered the plea with a full understanding of the
nature and consequences of the plea.
2
Id. at 72.
The state decided not to proceed on the resisting count.
Ex. J, Plea Transcript (Exhibit "I") at 68.
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The court sentenced Petitioner to fifteen years imprisonment
as a habitual felony offender, and Judgment and Sentence were
entered on July 2, 2009. Ex. D, Judgment and Sentence. Petitioner
appealed.
Ex. E.
On October 14, 2009, the First District Court of
Appeal dismissed the appeal.
Ex. F.
On October 30, 2009, pursuant to the mailbox rule, Petitioner
filed a Rule 3.850 post conviction motion in the trial court.
G.
Ex.
He moved to withdraw it, Ex. H, and filed a second Rule 3.850
motion.
E. I.
The trial court entered an order granting the
voluntary dismissal of the initial Rule 3.850 motion and denying
the second Rule 3.850 motion, attaching relevant documents and
portions of the proceedings.
Ex. J.
Petitioner appealed, and the
First District Court of Appeal per curiam affirmed on September 24,
2012.
Ex. K.
Petitioner moved for rehearing.
Ex. L.
On November
2, 2012, the First District Court of Appeal denied rehearing.
M.
The mandate issued on November 20, 2012.
V.
Ex.
Ex. N.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Ground one of the Petition is trial counsel's assistance was
rendered
ineffective
based
on
counsel's
misadvice
given
to
Petitioner to plead guilty, resulting in an involuntary plea in
violation of the Sixth and Fourteenth Amendments of the United
States Constitution.
Petition at 5.
In support of this ground,
Petitioner claims his attorney provided him with erroneous advice
that his co-defendant had made incriminating statements and would
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testify against Petitioner at trial.
Id.
Petitioner states that
although his counsel told him it would come down to a question of
credibility, had he been properly advised that the state may have
made it a condition of his co-defendant's plea to testify against
Petitioner at trial, Petitioner would have insisted on going to
trial and have the jury address the question as to whether the
object Petitioner handed to his co-defendant was the drugs in
question.
provide
Id. at 6.
accurate
Petitioner contends that counsel failed to
information
defenses and evidence.
when
advising
Petitioner
about
Id.
In the second ground of the Petition, Petitioner asserts that
his counsel provided ineffective assistance by his failure to
explain to Petitioner that intent is an essential element of the
offense of sale or delivery of cocaine. Petition at 7. Petitioner
claims this failure hindered his ability to make an intelligent
decision as to whether his actions constituted the offense charged
and
ultimately
Petitioner
resulted
contends
proceeded to trial.
that
in
an
with
involuntary
better
plea.
advice,
he
at
Id.
would
7.
have
Id. at 7-8.
In his third and final ground, Petitioner claims his counsel
was ineffective because he induced Petitioner to plead to an
offense when there was no factual basis to support the offense and
counsel improperly stipulated to the existence of the offense.
Petition at 10.
Petitioner states that as a result of counsel's
deficient performance, his plea was rendered involuntary.
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Id. at
11.
To support this contention, Petitioner states that defense
counsel failed to explain the lack of material evidence in his case
and give competent advice in order to enable Petitioner to make an
informed decision.
Id.
Petitioner claims that had he been better
informed, he would have insisted on going to trial.
In
its
Dismissal
Order
and
Granting
Denying
Defendant's
Defendant's
Motion
Motion
for
Id.
for
Post
Voluntary
Conviction
Relief, the court succinctly summarized Petitioner's three grounds:
In the instant Motion filed July 26,
2010, Defendant raises three (3) allegations
of ineffective assistance of trial counsel as
related to his plea of guilty.
First, he
alleges that counsel "induced" him to plead
"mercy to the court" because had he gone to
trial, his co-defendant would testify against
him.
However, Defendant avers, his codefendant was not listed as a State witness
and would not have so testified.
Second,
Defendant contends his plea is involuntary
because trial counsel failed to explain that
the State would have been required to prove
the "intent" element of Sale or Delivery of
Cocaine, which, he alleges, he did not intend
to do.
Finally, Defendant avers that trial
counsel led him to plead guilty despite the
lack of factual basis to sustain such a plea.
Specifically,
he
argues
counsel
was
ineffective for failing to have the substance,
which was alleged to be cocaine, independently
tested.
Ex. J at 24.
It should be noted that the trial court recognized the
appropriate standard for determining ineffective assistance of
counsel and an involuntary plea by referencing both Strickland v.
Washington and Hill v. Lockhart.
Ex. J at 24-25.
Thus, there is
no doubt that the court was aware that in this guilty plea
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scenario, the two-pronged ineffectiveness test was applicable and
Petitioner must not only show deficient performance, he must
demonstrate that there is a reasonable probability that, but for
his counsel's alleged errors, he would not have pleaded guilty but
would have insisted on going to trial.
Id.
The court further
noted that it may rely on the sworn testimony of Petitioner during
his plea colloquy as well as the written plea agreement in making
its determination.
The
court,
Id. at 25-26.
in
denying
the
Rule
3.850
motion,
rejected
Petitioner's claim of ineffective assistance of counsel resulting
in an involuntary plea.
record
demonstrating
The court found abundant evidence in the
that
Petitioner
elements and otherwise advised.
was
fully
aware
of
the
Initially, the court referenced
the plea colloquy during the course of which Petitioner stated that
his attorney went over the plea form with him in detail, answered
all
questions,
representation.
and
provided
Id. at 26.
full
satisfaction
through
his
The court also referenced the portion
of the plea proceeding in which Petitioner informed the court that
he had no questions for his attorney or the court.
Id.
The court attached a copy of the plea form and the transcript
of the plea proceeding to its order as exhibits "E" and "I".
J.
Ex.
In making its decision, the court relied heavily upon the
averments contained in the written plea agreement.
The court
referenced portions of the agreement demonstrating the voluntary
nature of Petitioner's acceptance of the agreement.
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Specifically,
the court referred to the written plea agreement and quoted the
portion of the agreement concerning Petitioner's consultation with
counsel.
Id. at 26-27.
Considering the plea colloquy and the
written plea agreement in combination, the trial court determined
that there was no merit to Petitioner's allegations of ineffective
assistance
of
trial
counsel.
Id.
at
27.
The
court
found
persuasive the content of Petitioner's "sworn testimony during his
plea colloquy with the trial judge and his corresponding plea
agreement." Id. In addition, the court held that Petitioner could
not seek to go behind his sworn testimony; "[t]herefore, his three
(3) complaints contrary to his sworn testimony during his plea
colloquy, alleging ineffective assistance of counsel, are without
merit and denied."
Id.
A federal habeas court reviews a state court guilty plea only
for compliance with constitutional protections.
This court has concluded that "[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, ___ U.S. ___, 112 S.Ct. 116, 116 L.Ed.
2d 85 (1991).
Jones v. White, 992 F.2d 1548, 1556-57 (11th Cir.), cert. denied,
510 U.S. 967 (1993).
Thus, in order for a guilty plea to be
constitutionally valid, it must be made knowingly, intelligently,
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and voluntarily.
Pardue v. Burton, 26 F.3d 1093, 1096 (11th Cir.
1994).
Recognizing that solemn declarations in open court carry such
a strong presumption of verity, the trial court's decision is well
supported by the record.
Indeed, the record shows that Petitioner
pleaded guilty because he wished to do so, fully apprised that he
was facing a maximum penalty of thirty years in prison as a
habitual felony offender.
See United States v. Castro, 736 F.3d
1308, 1314 (11th Cir. 2013) (per curiam) (the court was not
convinced that the defendant would have rejected the plea agreement
as he avoided prosecution of numerous offenses and faced a stiff
sentence if he proceeded to trial), cert. denied, 134 S.Ct. 1331
(2014).
Upon review of the record, at the inception of the plea
proceeding,
defense
counsel
announced
that
authorized him to enter a plea of guilty.
(Exhibit "I") at 67.
his
client
had
Ex. J, Plea Transcript
Counsel also stated the Petitioner knew the
potential consequences of facing a maximum thirty-year penalty.
Id.
Counsel referenced the plea form executed by himself and
Petitioner, noting that Petitioner was tendering a plea of guilty
straight to the court.
After
colloquy.
Petitioner
Id. at 68.
Id.
was
sworn,
the
court
conducted
a
plea
First, the court inquired as to whether
Petitioner wished to enter a plea of guilty to the charge of sale
or
delivery
of
cocaine.
Id.
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Petitioner
responded
in
the
affirmative.
Id.
The court explained Petitioner was pleading to
a second degree felony, and that as Petitioner's status as a
habitual felony offender, the maximum penalty he could receive
would be thirty years in prison. Id. Petitioner responded that he
understood these factors. Id. The court also explained that there
was no agreement by the state as to a sentence.
Id. at 68-69.
The court advised Petitioner of the rights he was waiving by
entering
his
plea.
Id.
understood these rights.
at
Id.
69.
Petitioner
agreed
that
he
The court inquired as to whether
anyone had threatened or coerced Petitioner into accepting the plea
or made any promises.
negative.
Id.
Id. at 70.
Petitioner responded in the
The court asked whether Petitioner was under the
influence of any substance or mental condition that would impair
his ability to understand the plea proceedings, and Petitioner said
no.
Id.
The court continued:
THE COURT: By entering your plea of
guilty you're acknowledging you are in fact
guilty of the charge, is that correct?
THE DEFENDANT: Yes, ma'am.
THE COURT: What is the highest grade you
completed in school?
THE DEFENDANT: 10th.
. . . .
THE
write?
COURT:
Are
you
able
THE DEFENDANT: Yes, ma'am.
- 11 -
to
read
and
THE COURT: Is this your signature on the
plea form?
THE DEFENDANT: Yes, ma'am.
THE COURT: Did your attorney go over this
form with you in detail.
THE DEFENDANT: Yes, ma'am.
THE COURT: Did he answer all of your
questions?
THE DEFENDANT: Yes, ma'am.
THE COURT: You have any other questions
you need to ask your attorney or the Court?
THE DEFENDANT: No, ma'am.
THE COURT: Are you fully satisfied with
his representation?
THE DEFENDANT: Yes, ma'am.
Id. at 70-71.
The court asked the state to present a factual basis for the
plea, and the state responded by providing the factual basis for
the plea:
The State is prepared to prove Little Booker
T[.] McCullough on December 30th, 2008, in the
county of Duval, State of Florida, did
unlawfully sale [sic] or deliver a controlled
substance named or described in section
893.03(2)(a)(4) of the Florida Statutes which
was cocaine which is contrary to provision of
section
893.13(1)(a)(1)
of
the
Florida
Statutes.
Id.
at
71-72.
Upon
inquiry,
defense
counsel
exception or objection for purposes of the plea.
- 12 -
made
no
legal
Id. at 72.
In short, Petitioner stated that he was completely satisfied
with counsel's performance. He confirmed that he had gone over the
plea form in its entirety with his counsel and that counsel had
answered all of his questions.
Petitioner had no questions
concerning the maximum penalty he faced.
He stated that he had a
tenth grade education and signed the plea form.
Id.
He also said
that he was not under the influence of any substance or impaired in
any way. He confirmed that he was not threatened or made promises.
Finally, with regard to the underlying basis for the charge, no
exceptions or objections were made to the factual basis for the
plea.
Under the circumstances presented, Petitioner has failed to
show that his counsel's performance was deficient. Again, in order
to satisfy the prejudice prong of the two-part Strickland test in
a plea case, Petitioner must show that there is a reasonable
probability that, but for his counsel's error, he would not have
pleaded guilty and would have insisted on proceeding to trial. See
Hill v. Lockhart.
Even assuming deficient performance, Petitioner
has not shown prejudice, as Petitioner was facing substantial time,
thirty years in prison as a habitual felony offender.
Ex. D,
Criminal Punishment Scoresheet.
Thus, Petitioner has not shown that a reasonable probability
exists that the outcome of the proceeding would have been different
if his lawyer had given the assistance that Petitioner has alleged
should have been provided.
Petitioner received a fifteen-year
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sentence,
half
of
the
maximum
prison
time
he
was
facing.
Accordingly, Petitioner's ineffectiveness claim is without merit
since he has neither shown deficient performance nor resulting
prejudice.
As such, Petitioner is not entitled to relief on grounds one,
two and three of the Petition, claims of ineffective assistance of
trial counsel resulting in an involuntary plea.3
Deference, under
AEDPA, should be given to the state court's decision.
Petitioner
raised these issues in his Rule 3.850 motion, the trial court
denied the motion, and the appellate court affirmed.
Ex. K.
The
state court's adjudication of these claims is not contrary to or an
unreasonable application of Strickland and Hill, or based on an
unreasonable determination of the facts.
three are due to be denied.
Grounds one, two and
Petitioner is not entitled to habeas
relief.
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 accordingly
and close this case.
3
Petitioner waived any claims regarding the merits of his
defense or prosecution when he entered his plea and any complaints
he may have had about the state's underlying evidence. Ex. J, Plea
Transcript (Exhibit "I") at 69, 72.
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3.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.4
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.
DONE AND ORDERED at Jacksonville, Florida, this 13th day of
November, 2015.
sa 11/5
c:
Little Booker T. McCullough
Counsel of Record
4
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
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 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)).
Upon due consideration, this Court will deny a
certificate of appealability.
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