Kropiewnicki v. Secretary, Department of Corrections et al
Filing
26
ORDER denying 10 the amended petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 9/24/2015. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
STANISLAW KROPIEWNICKI,
Petitioner,
vs.
Case No. 3:13-cv-710-J-39MCR
SECRETARY, DOC, et al.,
Respondents.
ORDER
I.
Stanislaw
challenges
a
Kropiewnicki,
2008
(St.
manslaughter (enhanced).
STATUS
the
Johns
Petitioner
County)
in
this
conviction
for
case,
DUI
He is proceeding on an Amended Petition
(Doc. 10) and is represented by counsel. He raises four grounds in
his Amended Petition: (1A) an involuntary plea because it was made
on the basis of a promise by trial counsel that Petitioner would be
sentenced by Judge Wolfe, who was represented by counsel to be a
more lenient sentencing judge; (1B) trial counsel interfered with
Petitioner's right to choose to withdraw his plea by refusing to
honor Petitioner's written instruction to withdraw the plea because
Petitioner would not be sentenced by Judge Wolfe, the more lenient
judge; (2A) the ineffective assistance of counsel because counsel
failed to move to dismiss the information or otherwise challenge
the introduction of evidence derived directly or indirectly from
statements made by the defendant during the traffic accident
investigation
phase
of
the
case;
and
(2B)
the
ineffective
assistance of counsel for failure to raise the Fifth Amendment and
Florida statutory immunity issue, resulting in an involuntary plea.
The four grounds will be addressed by the Court.
960 F.2d 925, 936 (11th Cir. 1992).
Clisby v. Jones,
The Court notes that the state
court conducted an evidentiary hearing on the claims raised in the
third and fourth grounds.
The Court concludes that no further
evidentiary proceedings are required in this Court.
Respondents filed a Response to Petition (Response) (Doc. 11),
asserting the Amended Petition should not be granted.
submitted an Appendix (Doc. 12).1
Petitioner filed an Amended
Reply to Respondents' Response (Doc. 20).
22).
They also
See Orders (Docs. 8 &
Respondents do not contend that the Petition is untimely
filed.
Response at 6.
They also recognize that all four grounds
are apparently exhausted.
II.
Id. at 8.
STANDARD OF REVIEW
Recently, the Eleventh Circuit set forth the appropriate
analysis
when
undertaking
habeas
review
pursuant
to
the
Antiterrorism and Effective Death Penalty Act (AEDPA):
review of the state habeas court's decision is
constrained by § 2254(d) of the Antiterrorism
and Effective Death Penalty Act of 1996
("AEDPA"), which "imposes a highly deferential
standard for evaluating state court rulings
1
The Court hereinafter refers to the exhibits contained in
the Appendix as "Ex." Where provided, the page numbers referenced
in this opinion are the Bates stamp numbers at the bottom of each
page of the Appendix. Otherwise, the page number on the particular
document will be referenced.
- 2 -
and demands that state-court decisions be
given the benefit of the doubt." Bishop v.
Warden, GDCP, 726 F.3d 1243, 1253 (11th Cir.
2013), cert. denied, ––– U.S. ––––, 135 S.Ct.
67 (2014) (internal quotation omitted).
Pursuant to the AEDPA, this Court is
prohibited from granting relief if a state
court has adjudicated a claim on the merits
unless the state court's decision "was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States," 28 U .S.C. § 2254(d)(1), or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceedings," id. §
2254(d)(2).
This
Court
will
analyze
Petitioner's claims pursuant to 28 U.S.C. §
2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act (AEDPA).
French v. Warden, Wilcox State Prison, No. 12-15385, 2015 WL
3857639, at * 3 (11th Cir. June 23, 2015).
See Harrington v.
Richter, 562 U.S. 86, 98 (2011) (setting forth the same three
exceptions to the bar to relitigation of any claim adjudicated on
the merits in state court).
The parameters for deferential review under AEDPA are set
forth as follows:
A state-court decision represents an
unreasonable
application
of
clearly
established federal law if the state court
correctly identifies the governing legal rule
from Supreme Court cases but unreasonably
applies the established law to the facts of
the case. Lockyer v. Andrade, 538 U.S. 63, 75,
123 S.Ct. 1166, 1174, 155 L.Ed.2d 144 (2003).
The Supreme Court has repeatedly emphasized
that "an unreasonable application of federal
law is different from an incorrect application
of federal law." Cullen v. Pinholster, –––
- 3 -
U.S. ––––, ––––, 131 S.Ct. 1388, 1411, 179
L.Ed.2d 557 (2011) (quotation marks omitted).
A
state court's determination of the
facts is unreasonable only if no fairminded
jurist could agree with the determination. Lee
v. Comm'r, Ala. Dep't of Corr., 726 F.3d 1172,
1192 (11th Cir. 2013), cert. denied, ––– U.S.
––––, 134 S.Ct. 1542, 188 L.Ed.2d 557 (2014).
Findings of fact by a state court are presumed
to be correct, and a habeas petitioner must
rebut that presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Pope v.
Sec'y for Dep't of Corr., 680 F.3d 1271, 1284
(11th Cir. 2012). In determining how the state
courts resolved a habeas petitioner's claims,
we look to the last state court that rendered
a judgment in the case. Pope, 680 F.3d at
1284–85.
Stoddard v. Sec'y, Dep't of Corr., 600 F. App'x 696, 703 (11th Cir.
2015) (per curiam), petition for cert. docketed, (U.S. June 12,
2015) (No. 14-10198).
In
this
opinion,
the
Court
will
give
a
presumption
of
correctness of the state courts' factual findings unless rebutted
with clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and,
the Court will apply this presumption 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
In his Amended Petition, Petitioner claims he received the
ineffective
assistance
of
counsel
in
violation
Amendment to the United States Constitution.
of
the
Sixth
In order to prevail
on this Sixth Amendment claim, he must satisfy the two-pronged test
- 4 -
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).
Ineffective assistance of counsel may also require that a plea be
set
aside
on
the
ground
that
it
was
involuntary
because
voluntariness implicates not only threats and inducements but also
ignorance and incomprehension.
See id. at 56 (quoting North
Carolina v. Alford, 400 U.S. 25, 31 (1970)) (noting that the
"longstanding test for determining the validity of a guilty plea is
'whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.'").
IV.
PROCEDURAL HISTORY
To provide historical context to Petitioner's grounds for
relief, the Court presents a brief summary of the case.
The
Florida Highway Patrol Traffic Homicide Investigation, prepared by
Peter G. Young, Cpl, found that Petitioner was under the influence
- 5 -
of alcoholic beverages, and his normal faculties were impaired with
a finding 0.238 grams of ethyl alcohol per 100 milliliters based on
the blood specimen.
Ex. 12, Exhibit B at 46-47.
He also concluded
that Petitioner sustained non-incapacitating injuries, including a
small cut on his nose from striking the steering column, and red
marks on his stomach caused by airbag deployment.
Id. at 47.
stated that the motorcycle driver sustained fatal injuries.
He
Id.
The narrative in the Charging Affidavit similarly stated that
Petitioner was under the influence of alcoholic beverages, his
normal faculties were impaired, his blood alcohol level was .20 or
above, and Petitioner did cause or contribute to the cause of death
of the victim.
Id. at 87.
A Felony Warrant issued based on the
oath of Cpl. Young before Investigator R. Hardwick.
Id. at 88.
On August 28, 2007, Petitioner was charged by information with
DUI manslaughter (enhanced).
Ex. 1.
On April 21, 2008, the trial
judge, the Honorable Wendy Berger, conducted a plea colloquy and
accepted Petitioner's plea of no contest.
Ex. 3.
At the outset of
the proceeding, the court swore in the Polish interpreter (English
to Polish and from Polish to English) for Petitioner.
13.
Id. at 212-
Bryan L. Shorstein, Petitioner's counsel, announced that his
client was withdrawing his previously entered plea and pleading no
contest to one count of DUI manslaughter with an enhancement for
the blood alcohol level.
a second degree felony.
Id. at 213.
Id.
The court noted that it was
Petitioner was sworn and assured the
court that he could understand most of what was being said without
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the aid of an interpreter.
Id. at 214.
The court advised him to
let her know if he needed the interpreter or if he was having
difficulty understanding anything that was being said.
Id.
Petitioner confirmed that he wanted to plead no contest.
Id.
The court advised him that the punishment for a second degree
felony is up to fifteen years in prison and/or a $10,000 fine or
both.2
Id.
Petitioner informed the court that he had a high
school education and two years of vocational classes in engineering
construction.
Id. at 216.
He assured the court that with the
assistance of the interpreter, he understood everything. Id. Upon
inquiry, he told the court that he had not been treated for any
mental or emotional disability and he did not suffer from any
mental illness.
Id. at 217.
He told the court that he had not
consumed any drugs or alcohol within the last twenty-four hours.
Id.
The court went over Petitioner's constitutional rights with
the aid of the interpreter.
Id. at 217-19.
The court explained, "[p]leas of guilty or no contest admit
the truth of the charge.
charge."
Id. at 219.
Pleas of not guilty would deny the
Petitioner responded that he understood.
Petitioner confirmed that he believed the plea of no contest
Id.
was in his best interest.
Id. at 220.
forced or pressured or intimidated.
2
Id.
Petitioner denied being
He stated that no one had
The Criminal Punishment Code Scoresheet sentence computation
showed a lowest permissible prison sentence as 124.6 months, and a
maximum sentence of fifteen years. Ex. 4.
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promised
him
anything
to
get
him
to
enter
the
plea.
Id.
Petitioner stated he was satisfied with the representation of Mr.
Shorstein and Mr. Lee.
Id. at 220-21.
The state provided a factual basis for the plea to the DUI
manslaughter charge.
Id. at 221.
The defense made no exceptions
or objections to the facts related by the state.
Id. at 222.
The
prosecutor said that at sentencing the state would not have a
specific recommendation for a term of years.
Id.
Mr. Shorstein
announced to the court that counsel had gone over with Petitioner,
in detail, what the possibilities would be at sentencing.
Id.
The court inquired: "Mr. Kropiewnicki, has anybody coached you
or told you to testify falsely based on any promise or on any
understanding that's not been told to me."
Id.
Petitioner
responded in the negative. Id. The court then asked if Petitioner
still wished to enter his plea of no contest.
Petitioner responded in the affirmative.
found
Petitioner
to
be
alert
and
Id. at 222-23.
Id. at 223.
intelligent,
and
The court
that
he
understood the nature and the consequences of entering the plea.
Id.
She further found a factual basis for the plea, and accepted
the entry of the plea.
the
sentencing
sentencing.
Id.
The court then asked about scheduling
proceeding,
and
proceeded
to
schedule
the
Id. at 223-26.
During the sentencing proceeding, Petitioner addressed the
court via interpreter and said: "[t]oday we [are] going to talk
about sentence, if that would help heal, you know, in other words,
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you know, help them out a little bit, I would order for me today a
life sentence."
Ex. 5 at 141.
Mr. Lee implored the court to
sentence Petitioner to the low end of the guidelines.
The state said it was seeking a guideline sentence.
Id. at 146.
Id.
The court
found no reason to depart from the guidelines, but she did not
believe the low-end of the guidelines was appropriate. Id. at 151.
She previously noted that Petitioner had an old DUI case, id. at
150, and no prior felony record.
Id. at 151.
She adjudicated
Petitioner guilty and sentenced him to fourteen years in prison
followed by one year of community control.
Id.
the court entered its judgment and sentence.
On June 5, 2008,
Ex. 6.
On direct appeal, the Assistant Public Defender filed an
Anders brief.3
appeal.
Ex. 9.
Ex. 7.
Petitioner moved to voluntarily dismiss his
On February 5, 2009, the Fifth District Court of
Appeal dismissed the appeal.
Ex. 10.
Petitioner filed a motion
for post conviction relief pursuant to Rule 3.850, Fla. Stat.
11.
Ex.
Attached to the motion were two exhibits, an undated letter
purported to be from Petitioner to attorneys Shorstein and Lee, and
the Florida Highway Patrol Accident Report and Affidavit for Arrest
(Charging Affidavit and Felony Warrant). Id. The state responded.
Ex. 13.
Petitioner replied.
Ex. 14.
Petitioner supplemented his
reply with the Affidavit of Maria Kropiewnicki.
Ex. 15.
The
court, in its Order on Motion to Vacate Judgment and Sentence,
3
Anders v. California, 386 U.S. 738 (1967).
- 9 -
summarily denied grounds 1A and 1B.
Ex. 16 at 208.
The court
scheduled an evidentiary hearing on grounds 2A and 2B.
court conducted an evidentiary hearing on June 15, 2011.
Petitioner testified.
Id. at 7-28.
and attorney Bryan Shorstein.
Ex. 19.
The
Ex. 17.
The state called Petitioner
Id. at 30-61.
the court denied grounds 2A and 2B.
Id.
Ex. 18.
On March 29, 2012,
Petitioner appealed.
The state filed an answer brief, declining to respond to
grounds 1A and 1B, and fully responding to grounds 2A and 2B.
Ex.
20. The Fifth District Court of Appeal per curiam affirmed on June
4, 2013.
Ex. 21.
V.
The mandate issued on July 24, 2013.
Ex. 24.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Grounds 1A and 1B
Grounds 1A and 1B are interrelated and will be addressed
jointly. In ground 1A, Petitioner claims he entered an involuntary
plea because it was made on the basis of a promise by trial counsel
that
Petitioner
would
be
sentenced
by
Judge
Wolfe,
who
represented by counsel to be a more lenient sentencing judge.
ground
1B,
Petitioner
claims
trial
counsel
interfered
was
In
with
Petitioner's right to choose to withdraw his plea by refusing to
honor Petitioner's written instruction to withdraw the plea because
Petitioner would not be sentenced by Judge Wolfe.
Petitioner asserts that he received the ineffective assistance
of counsel in violation of the Sixth Amendment to the United States
Constitution resulting in an involuntary plea. In order to prevail
on this Sixth Amendment claim, he must satisfy the two-pronged test
- 10 -
set forth in Strickland, requiring that he show both deficient
performance and prejudice.
In the context of his ineffective
assistance challenge to the voluntariness of his 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, as set forth in Hill.
Petitioner adequately exhausted his claims in the state court
proceedings.
He raised both claims in his Rule 3.850 motion.
The
trial court denied relief, and the Fifth District Court of Appeal
per curiam affirmed.
The trial court thoroughly addressed these grounds and denied
the claims without conducting an evidentiary hearing.
provided the background for the claims:
In Ground 1A of Defendant's Motion,
Defendant claims that his plea was not freely,
voluntarily, knowingly, and intelligently made
because it was made on the basis of a promise
by Defendant's trial counsel that he would be
sentenced by Judge Wolfe, who was represented
by counsel to be a more lenient sentencing
Judge, when in fact, Defendant was sentenced
by Judge Berger to a near statutory maximum
term of imprisonment. In Ground 1B, Defendant
claims that his trial counsel interfered with
his right to choose to withdraw his no contest
plea by refusing to honor Defendant's written
instruction to withdraw Defendant's previously
entered no contest plea when Defendant
explained in writing to his counsel that he
entered his guilty plea on the basis of
counsel's promise that he would be sentenced
by Judge Wolfe, an allegedly more lenient
sentencing Judge.
He also claims he told
counsel he was not comfortable being sentenced
by Judge Berger and instructed counsel to
immediately withdraw his plea because the plea
- 11 -
The court
had
been
entered
on
the
basis
misunderstanding
and
without
a
understanding of its consequences.
of
a
full
Ex. 16 at 205-206.
The court reviewed and referenced the plea colloquy:
Defendant entered a plea before the
undersigned on April 21, 2008.
Prior to
entering his plea, Defendant was informed that
he was pleading to a second degree felony
punishable by up to 15 years in prison. See
Plea Hearing Transcript dated April 21, 2008,
p. 5, attached hereto as Appendix A.
Defendant was asked if anyone had promised him
anything to get him to enter the plea, and he
responded "no, no". Id. at 11. Defendant's
attorney stated that he and his client had
gone over what the possibilities were at
sentencing, what the State intended to say,
and the fact that the defendant and his
witnesses would get to speak at sentencing,
and Defendant's attorney indicated that his
client understood all of that.
Id. at 13.
After this discussion, the Defendant stated he
still wished to enter his plea and the Court
accepted his plea.
Id. at 13-14.
After
entering his plea, there was a discussion
regarding scheduling the sentencing hearing
and the sentencing proceedings. During this
discussion, the defendant never stated any
objection to the undersigned proceeding with
the sentencing. Id. at 14-17.
Id. at 206.
Thereafter, the court addressed the matter of the letter
attached to the Rule 3.850 motion.
The court noted that although
the letter was addressed to the Law Offices of Shorstein and Lee
and signed by Petitioner, it was not dated.
Id.
The court further
noted that Petitioner was sentenced two weeks after entering his
plea.
Id. at 207.
The court pointed out that at the sentencing
- 12 -
hearing Petitioner had "several opportunities to speak and say what
he wanted to say to the Judge; however, Defendant never raised any
objection
to
the
undersigned
sentencing
the
defendant,
and
Defendant never gave any indication that he expected Judge Wolfe to
preside over his sentencing."
Id. at 207 (citation omitted).
Finally, the court recognized that Petitioner actually offered to
serve a life sentence if it would help the victim's family heal.
Id. (citation omitted).
With regard to Petitioner's claims of ineffective assistance
of counsel resulting in an involuntary plea, the court held:
Defendant has failed to demonstrate how
he was prejudiced by his counsel's alleged
deficient performance.
The defendant was
fully aware of the maximum sentence he was
facing, and Defendant had ample opportunity to
express an objection to the undersigned
proceeding with sentencing.
Furthermore,
Defendant has failed to demonstrate that he
would have insisted on going to trial had he
known that he would not be sentenced by Judge
Wolfe.
As stated previously, Defendant
indicated he was willing to take a life
sentence if it would help the family heal.
Defendant's statement does not indicate that
his plea was entered with the expectation of,
or hope for, leniency. Accordingly, Defendant
has failed to state claims sufficient to
warrant an evidentiary hearing as to Grounds
1A and 1B.
Id. at 207.
The record shows that the Petitioner faced a prison sentence
within a very narrow guideline sentencing range of 124.6 months to
fifteen years. Ex. 4. At the post-conviction evidentiary hearing,
Mr. Shorstein testified that, at best, they were hoping for "a
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little bit of a break," like perhaps twelve years in prison rather
than fifteen years.
Ex. 17 at 60.
At sentencing, the court noted
that Petitioner had a prior DUI but no prior felony record.
at 150-51.
Ex. 5
Perhaps of more import, the court found significant
that Petitioner's blood alcohol level was "three times the legal
limit."
Id. at 150.
Petitioner knew that if he proceeded to trial
on the DUI manslaughter (enhanced) charge and lost, he would face
up to fifteen years in prison.
In order to avoid that possible
sentence, Petitioner decided to plead no contest.
At sentencing,
Mr. Lee reminded the court that Petitioner did not put the victim's
family through a trial, and requested an appropriate sentence at
the low end of the guidelines followed by some probation to assure
that he was not drinking or driving.
Ex. 5 at 146.
The court
sentenced Petitioner to fourteen years in prison followed by one
year of community control.
Id. at 151.
sentenced
term
Petitioner
to
a
of
In essence, the court
years
slightly
over
the
expressed, best hoped for a break under the circumstances.
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.
shown
Even assuming deficient performance, Petitioner has not
prejudice.
The
evidence
was
overwhelmingly
against
Petitioner, and he hoped that by pleading no contest he would
receive some mercy from the court during sentencing.
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Judge Berger
found that Petitioner "failed to demonstrate that he would have
insisted on going to trial had he known that he would not be
sentenced by Judge Wolfe."
Ex. 16 at 207.
Instead, during the
sentencing proceeding, Petitioner said he was willing to accept a
life sentence if it would help the victim's family.
Petitioner
has
not
shown
that
there
is
Id.
a
reasonable
probability that, but for counsel's alleged errors, Petitioner
would not have pleaded guilty and would have insisted on going to
trial.
As noted by the trial court, Petitioner never objected to
Judge Berger proceeding with sentencing even though he had ample
opportunity to protest.
Instead, it is quite apparent that
Petitioner is simply dissatisfied with the sentence he received
from Judge Berger as he had hoped for more significant leniency but
did not receive it.
With regard to Petitioner's claim of ineffective assistance of
trial counsel resulting in an involuntary plea, the state court's
ruling is supported by controlling case law: Strickland, Hill, and
progeny.
court's
Deference, under AEDPA, should be given to the state
holding.
Petitioner
raised
the
issues
in
his
post
conviction motion, the trial court denied the motion, and the
appellate
court
affirmed.
This
Court
concludes
that
the
adjudication of the claims of ineffective assistance of counsel
leading
to
an
involuntary
plea
is
not
contrary
to
or
an
unreasonable application of Strickland and Hill, or based on an
unreasonable determination of the facts.
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B.
Grounds 2A and 2B
In ground 2A, Petitioner claims he received the ineffective
assistance of counsel because counsel failed to move to dismiss the
information or otherwise challenge the introduction of evidence
derived
directly
or
indirectly
from
statements
made
by
the
defendant during the traffic accident investigation phase of the
case.
In ground 2B, Petitioner raises the related claim of the
ineffective assistance of counsel for failure to raise the Fifth
Amendment and Florida statutory immunity issue, resulting in an
involuntary plea.
Of significance, in its response to the Rule 3.850 motion, the
state said that based on the exhibits provided by Petitioner in
support of his post conviction motion, the only statement given by
Petitioner
referenced
in
the
Florida
Highway
Patrol
Traffic
Homicide Investigation is the tape-recorded statement given to
Officer Peter Young.4
Ex. 13 at 91.
The state argued that based
on the observation by Officer Young that Petitioner carried a
strong odor of alcohol, along with the tape-recorded statements of
4
Upon a thorough review of the Florida Highway Patrol Traffic
Homicide Investigation, the only statement given by Petitioner
mentioned in the report is the tape-recorded statement obtained at
the scene at 12:26 p.m. Ex. 12, Exhibit B at 50. Officer Young
states that he detected a strong odor of alcoholic beverages on
Petitioner's breath, and Petitioner said he had three beers that
morning. Id. Officer Young mentions that when he arrived on the
scene, he conferred with Trooper Howard about her knowledge of the
traffic crash. Id. at 48. No mention is made of a statement by
Petitioner to Howard concerning his alcoholic beverage intake. Id.
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the other witnesses at the scene that Petitioner exited the van
following
the
accident,
there
is
evidence
which
would
have
constituted sufficient probable cause obtained from independent and
legitimate
sources,
even
assuming
Petitioner
statements to the officers about drinking.
had
made
Ex. 13 at 92.
other
In sum,
the state urged the court to find that the officer was able to form
an opinion as to the possible intoxication of Petitioner based on
his own observations and the statements of witnesses of the
accident,
Petitioner.
without
Id.
relying
on
any
pre-Miranda
statements
of
Furthermore, the state asserted that any such
statements given by Petitioner were not relied upon by the officer
in making his decision to arrest Petitioner.
Id.
At the evidentiary hearing, Petitioner testified that Trooper
Howard asked him questions, including whether he had been drinking
alcoholic beverages.
Ex. 17 at 8.
He stated that he responded in
the affirmative. Id. Petitioner further testified that he felt he
was compelled to answer her questions and she did not advise him
otherwise.
Id. at 8-9.
He also testified that Officer Young took
him to the car to be interrogated, and before the officer began to
tape record Petitioner's statement, he asked if Petitioner had been
drinking.5
5
Id. at 11.
Petitioner said he told the officer that he
Mr. Shorstein testified that [o]ur undertanding was that the
statements were made post Miranda." Ex. 17 at 46. Nevertheless,
even if that were not the case, he concluded it did not make any
difference in their assessment of the situation because at least
three eyewitnesses saw Petitioner and provided damaging statements.
Id. at 47.
- 17 -
did drink last night.
Id.
Again, Petitioner testified that he
felt compelled to answer the officer's questions.
Id.
Finally,
Petitioner testified that Mr. Shorstein never discussed the traffic
accident report privilege with him.
Id. at 26.
After the state called Petitioner as a witness, on cross, his
counsel asked Petitioner if he would not have pled guilty but
"would have insisted on your lawyer presenting these arguments to
the Court first, wouldn't you?"
yes.
Id. at 33.
Id. at 32.
Petitioner responded
Petitioner was then asked, "[a]nd you would have
insisted on these arguments being preserved for appeal, wouldn't
you, if the Judge had denied them?"
responded yes.
Id.
Petitioner again
Id.
The state called Mr. Shorstein as a witness.
confirms
that
he
is
very
experienced
criminal
His testimony
counsel.
He
testified that he was employed with the State Attorney's Office
from 1996 to 2003.
about two years.
cases.
Id. at 35.
Id.
Id. at 36.
He said he did DUI death cases for
He handled seven to eight DUI manslaughter
He testified that he then went into private
practice in criminal defense. Id. He had been in private practice
for eight years.
Id.
Specifically with regard to his representation of Petitioner,
Mr. Shorstein testified that he spoke with him in terms that he
would understand.
Id. at 39.
He explained to the court that there
was no communication barrier at all.
Id.
Mr. Shorstein attested
that he analyzed the case to determine whether there were any
- 18 -
suppression issues.
Id. at 41.
He testified that they discussed
all the statements that were made, including the statements made in
the patrol car.
Id. at 42.
He said that Petitioner never told him
that he did not understand the Miranda warnings.
Id.
Mr.
Shorstein said that his assessment of the suppression issues was:
We
didn't
believe
there
were
any
suppressible issues.
I guess the issue at
hand that seems to be talked about, if I can
understand what's being said, although we go
over that in any case the accident privilege
or however it's called, although I will say I
don't –- I probably didn't use the terms
Kastigar6 or immunity, due to the fact that
there were multiple witnesses, you know, we
explained to him that we could do certain
things, the likelihood of those things
winning, and the outcome ultimately in the
case based on the overall strength of the
case.
Id. at 43-44.
He said he explained that with the accident
privilege other things may be "knocked out after it[.]" Id. at 54.
He reiterated that fact.
Id. at 55-56.
The following question was asked:
Q
And was it his decision not to file
any pretrial motions?
A
It was a group decision. I mean, it
was his decision as it's always the client's
decision, but everyone talks about it.
6
Kastigar v. United States, 406 U.S. 441, 459-60 (1972)
(recognizing that the Fifth Amendment prohibits the use of evidence
derived from compelled immunized testimony, "barring the use of
compelled testimony as an 'investigatory lead,'" and imposing on
the prosecution the burden to demonstrate that the evidence relied
upon is derived from a source independent of that of the compelled
testimony) (footnote omitted).
- 19 -
Id. at 44.
Mr. Shorstein explained that they discussed going to trial
because there was going to be plea "straight up" and there "was a
possibility that he could get the maximum or close to it, so
because being that close to that we discussed trial a lot."
44.
Mr. Shorstein testified that he did not promise a particular
outcome regarding the plea and sentencing proceedings.
45.
Id. at
Id. at 44-
He also said that the morning of the plea he spent forty-five
minutes with his client discussing the consequences of pleading no
contest.
Id. at 45.
With regard to the accident privilege, Mr. Shorstein says he
covers it in every DUI case.
Id. at 47.
In this case, however,
his assessment was that it would not have mattered because of the
at least three eyewitnesses to the accident.
Id.
In particular
Mr. Driscoll, one of the witnesses, testified that he watched the
entire event and saw Petitioner stumble out of the vehicle and say
he was not the driver.
Id. at 48.
Also, counsel believed that the
high blood alcohol results were significant.
Id. at 47.
After the evidentiary hearing, the trial court addressed
Petitioner's
remaining
two
grounds.
The
court
noted
that
Petitioner "claims that his answers to questions asked during the
traffic accident investigation phase were expressly relied upon to
proceed to the criminal investigation phase of the case, and in
turn, led to further self-incriminating statements and the blood
draw evidence." Ex. 18 at 294 (emphasis added). Of import, before
- 20 -
addressing the merits of Petitioner's claims, the trial court set
forth the Strickland standard which must be met to prevail on a
claim of ineffective assistance of counsel, and recognized that in
order to satisfy the prejudice prong in plea cases, the petitioner
must show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded no contest and would
have insisted on going to trial, referencing Hill v. Lockhart. Ex.
18 at 294.
In denying ground 2A, the trial court held:
The claim in Ground 2A hinges upon
Defendant's
pre-Miranda
and
pre-criminal
investigation phase statement that he had been
drinking prior to the accident.
Defendant
argues that under section 316.066, Florida
Statutes, he was required to answer the
officer's question about whether he had been
drinking, and therefore, this statement or any
other incriminating statements made during the
traffic crash investigation phase could not be
used to proceed to the criminal investigation
phase or as a basis for probable cause to
request a blood draw.
At the hearing, the
Court heard testimony from the Defendant and
from
Defendant's
trial
attorney,
Brian
Shorstein, Esquire. Defendant did not present
any evidence to prove that his claim is
meritorious.
See Zakzewski v. State, 866
So.2d 688, 694 (Fla. 2003) (holding that the
defendant was required to prove that his claim
was meritorious where the defendant claimed
that his defense counsel failed to litigate a
Fourth Amendment claim competently).
There
was no evidence or testimony to show what
statements or observations Corporal Young
relied upon in forming reasonable suspicion to
move to the DUI phase, and it is not clear
from the record whether he relied upon
statements protected by the accident report
privilege.
- 21 -
Ex. 18 at 295 (emphasis added).
The court noted that the attorneys discussed the traffic
accident privilege with Petitioner, but they did not believe there
were any suppressible issues "due to the multiple eyewitnesses."
Id. at 295.
The court explained:
Mr. Shorstein testified that he discussed
with
the
Defendant
the
strengths
and
weaknesses of the case, explained various
options, and the likelihood of prevailing on
certain pretrial issues.
According to Mr.
Shorstein, although it was a group discussion,
ultimately, it was Defendant's decision not to
file any pretrial motions and instead, enter a
plea.
Id.
The court rendered the following decision with respect to
ground 2A:
Based on the testimony before the Court,
the attachments to Defendant's motion, and the
remainder of the record in this case, the
Court finds that Mr. Shorstein did not act
outside
the
broad
range
of
reasonable
assistance
under
prevailing
professional
standards in failing to file a motion to
dismiss or a motion to suppress.
Defendant
failed to establish that Mr. Shorstein was
deficient for failing to file a motion to
dismiss or a motion to suppress where the
evidence presented did not show that such
claim would be meritorious.
Further, it is
clear from the testimony that Mr. Shorstein
thought a motion to dismiss or a motion to
suppress based on the claimed use of
Defendant's immunized statements would be
futile due to the eyewitnesses['] testimony.
Therefore, Ground 2A will be denied.
Id. at 296.
- 22 -
With regard to ground 2B, the court credited the testimony of
Mr. Shorstein over that of Petitioner.
Id. at 296.
The court
found that based on his testimony, Mr. Shorstein had discussions
with Petitioner about the accident report privilege, and Petitioner
understood the matters discussed.
Id.
The court held that
Petitioner failed to establish that his plea was involuntary.
Id.
The court also found that the claim raised in ground 2B should also
be denied for the reasons provided in ground 2A.
Id.
Petitioner appealed the denial of his Rule 3.850 motion.
19.
In
its
response,
the
state
expressly
pointed
out
Ex.
that
Petitioner failed to satisfy Hill by failing to assert or testify
that he would have rejected the plea and gone to trial, but instead
testified that he would have wanted counsel to proceed with
pretrial motions before entering a plea to preserve his claim for
appellate review.
Ex. 20 at 21.
The state further argued that the
combination of Officer Young's own observations in conjunction with
the
observations
of
the
eyewitnesses
would
have
supported
a
probable cause determination. Id. at 22. The Fifth District Court
of Appeal affirmed per curiam.
Ex. 21.
With regard to Petitioner's claim of ineffective assistance of
trial counsel resulting in an involuntary plea, the state court's
ruling regarding grounds 2A and 2B is supported by controlling case
law:
Strickland, Hill, and progeny.
Deference under AEDPA should
be given to the state court's holding.
Petitioner raised the
issues in his post conviction motion, the trial court denied the
- 23 -
motion, and the appellate court affirmed.
This Court concludes
that the adjudication of these claims of ineffective assistance of
counsel leading to an involuntary plea is not contrary to or an
unreasonable application of Strickland and Hill, or based on an
unreasonable determination of the facts.
As related in State v. Cino, 931 So.2d 164 (Fla. 5th DCA
2006), the state is permitted to use the officer's observations and
statements by persons other than the defendant.
The statute at
issue "only prohibits the State from using as evidence at trial
either the crash report or statements made to law enforcement
during a traffic investigation by persons involved in the crash."
Id. at 167.
As noted by this Court,
Pursuant to Section 316.1933(1)(a), Florida
Statutes,
[i]f a law enforcement officer has
probable cause to believe that a
motor vehicle driven by or in the
actual physical control of a person
under the influence of alcoholic
beverages, ... has caused the death
or serious bodily injury of a human
being, a law enforcement officer
shall require the person driving or
in actual physical control of the
motor vehicle to submit to a test of
the person's blood....
Fla. Stat. § 316.1933(1)(a) (2002). Section
316.066(4), Florida Statutes mandates that
statements made to investigative officers by a
person involved in an accident in order to
complete a crash report as required by the
statute are not admissible as evidence in any
criminal trial. Evans v. Hamilton, 885 So.2d
- 24 -
950, 950 (Fla. 4th DCA 2004). However,
"section 316.066(4) only prohibits the State
from using as evidence at trial either the
crash report or statements made to law
enforcement during a traffic investigation by
persons involved in the crash." State v. Cino,
931 So.2d 164, 167 (Fla. 5th DCA 2006). The
statute provides immunity only to "'such
statements and communications as the driver,
owner, or occupant of a vehicle is compelled
to make in order to comply with his or her
statutory duty under section 316.066(1) and
(2) [to report an accident]' so as to avoid a
Fifth Amendment violation." Evans, 885 So.2d
at 950 (quoting Brackin v. Boles, 452 So.2d
540, 544 (Fla. 1984)). "The test to be applied
in determining whether the accident report
privilege is applicable is whether the
privilege
against
self-incrimination
was
violated by requiring the person involved in
the accident to answer the questions posed."
Id. at 950–51.
Park v. Sec'y, Dep't of Corr., No. 6:10-cv-1031-Orl-37KRS, 2013 WL
375473, at *5 (M.D. Fla. Jan. 31, 2013).
In Park, this Court
concluded that even in the absence of any statements of the
petitioner, based on the officer's observations at the scene,
probable cause existed to believe that the petitioner was the
driver and was inebriated, leading to the conclusion that the blood
draw was permissible and a motion to suppress would have been
unsuccessful.
Id.
In the case at bar, there were several eyewitnesses, and as
related by defense counsel, the evidence against Petitioner was
significant.
Witnesses
observed
that
Petitioner
was
driving
improperly or erratically immediately prior to the accident, and he
exited the vehicle after the crash.
- 25 -
Similar to the circumstances
in Park, an officer personally observed Petitioner and detected the
odor of alcohol.
Thus, even in the absence of any statements by
Petitioner, a motion to dismiss the information or motion to
suppress would not have been successful.
The
trial
court
relied
on
the
applicable
two-pronged
Strickland standard and recognized that in a no contest plea case,
a petitioner has the burden to show that there is a reasonable
probability that, but for counsel's errors, he would not have pled
no contest and would have insisted on going to trial.
In this
instance, the court held that counsel's performance was reasonably
effective because, even if counsel had filed a motion to dismiss or
a motion to suppress, the motion would not have been granted due to
the eyewitnesses' testimony.
The report does not reflect that
Officer Young relied upon immunized statements protected by the
accident report privilege.
Furthermore, the court credited Mr.
Shorstein's testimony that he informed Petitioner of the immunity
or traffic report privilege, and Petitioner decided to go through
with
the
plea
proceeding
and
not
pursue
pretrial
motions.
Ultimately, the trial court concluded that Petitioner failed to
show
deficient
involuntary.
performance
by
counsel
or
that
the
plea
was
Ex. 18 at 294-96.
Petitioner has failed to advance a persuasive argument that
counsel's actions can be construed as conduct outside the wide
range of professional representation.
Further, Petitioner has not
shown prejudice because he has not established that, if counsel had
- 26 -
filed pretrial motions, there is a reasonable probability that the
outcome of the proceedings would have been different.
Indeed, in
this instance, the trial court said that a motion to dismiss or a
motion to suppress would not have been meritorious.
Thus, in the
present case, the Court concludes that there has been no showing of
prejudice since Petitioner has failed to establish that the filing
of pretrial motions would have produced a different result.
In
conclusion,
not
only
has
Petitioner
failed
to
show
deficient performance, he has failed to show that he was prejudiced
by counsel's performance.
Also, he has failed to establish that
his plea was involuntary.
Petitioner is not entitled to relief on
grounds 2A and 2B of the Amended Petition.
The state court's
ruling is well-supported by the record and by controlling case law.
Deference under AEDPA should be given to the state court's decision
to deny grounds 2A and 2B.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Amended Petition (Doc. 10) is DENIED, and this action
is DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment accordingly
and close this case.
- 27 -
3.
If Petitioner appeals the denial of his Amended Petition,
the Court denies a certificate of appealability.7
Because this
Court has determined that a certificate of 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 24th day of
September, 2015.
sa 9/18
c:
Counsel of Record
7
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.
- 28 -
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