Miller v. Secretary, Department of Corrections et al
Filing
16
ORDER denying 1 the 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 11/19/2015. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KEVIN J. MILLER,
Petitioner,
vs.
Case No. 3:13-cv-736-J-39JRK
SECRETARY, DOC, et al.,
Respondents.
ORDER
I. STATUS
Petitioner Kevin J. Miller is proceeding on a pro se Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in
State Custody (Petition) (Doc. 1).
He challenges his 2006 state
court (Duval County) conviction for attempted felony murder and
robbery.1
Id. at 1.
Respondents' filed an Answer in Response to Order to Show
Cause and Petition for Writ of Habeas Corpus (Response) (Doc. 12)
and
Exhibits
(Doc.
12).2
Petitioner
submitted
a
Reply
in
1
After originally sentencing Petitioner to twenty-five years
for both the attempted felony murder and the armed robbery charges,
the court reduced the armed robbery conviction to simple robbery
and resented Petitioner to fifteen years on that count.
2
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 (Doc. 12) as "Ex."
Where
Opposition to Respondents' Answer (Reply) (Doc. 13).
(Doc. 7).
See Order
Upon review, no evidentiary proceedings are required in
this Court.
II. STANDARD OF REVIEW
In this case, the Court will analyze Petitioner's two 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 three exceptions referenced
in Harrington 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.
Of importance to this Court's review, 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).
Also
of import, 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).
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.
- 2 -
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,
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).
With respect to 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).
Of
note, 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.'").
This Court recognizes that,
- 3 -
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,
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.
EXHAUSTION AND PROCEDURAL DEFAULT
In addressing the question of exhaustion, the Court must ask
whether
Petitioner's
claim
was
raised
in
the
state
court
proceedings and whether the state court was alerted to the federal
nature of the claim:
- 4 -
Before seeking § 2254 habeas relief in
federal court, a petitioner must exhaust all
state court remedies available for challenging
his conviction. See 28 U.S.C. § 2254(b), (c).
For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to
the state courts." McNair v. Campbell, 416
F.3d 1291, 1302 (11th Cir. 2005). The Supreme
Court has suggested that a litigant could do
so by including in his claim before the state
appellate court "the federal source of law on
which he relies or a case deciding such a
claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158
L.Ed.2d 64 (2004). The Court's guidance in
Baldwin "must be applied with common sense and
in light of the purpose underlying the
exhaustion requirement"—namely, giving the
state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at
1302. Thus, a petitioner could not satisfy the
exhaustion requirement merely by presenting
the state court with "all the facts necessary
to support the claim," or by making a
"somewhat similar state-law claim." Kelley,
377 F.3d at 1343–44. Rather, he must make his
claims in a manner that provides the state
courts
with
"the
opportunity
to
apply
controlling legal principles to the facts
bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.
2012), cert. denied, 133 S.Ct. 875 (2013).
There are prerequisites to a federal habeas review.
As such,
the Court must also be mindful of the doctrine of procedural
default:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are
accorded
the
finality
and
respect
- 5 -
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman, supra, at 747–748, 111 S.Ct.
2546; Sykes, supra, at 84–85, 97 S.Ct. 2497. A
state court's invocation of a procedural rule
to deny a prisoner's claims precludes federal
review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. ––––, ––––, 131 S.Ct.
1120, 1127–1128, 179 L.Ed.2d 62 (2011); Beard
v. Kindler, 558 U.S. ––––, ––––, 130 S.Ct.
612, 617–618, 175 L.Ed.2d 417 (2009). The
doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012).
Of note, procedural defaults may be excused under certain
circumstances; "[a] petitioner who fails to exhaust his claim is
procedurally barred from pursuing that claim on habeas review in
federal court unless he shows either cause for and actual prejudice
from the default or a fundamental miscarriage of justice from
applying the default."
Lucas, 682 F.3d at 1353 (citing Bailey v.
Nagle, 172 F.3d 1299, 1306 (11th Cir. 1999) (per curiam)).
The
fundamental miscarriage of justice exception is only available in
extraordinary cases upon a showing of "'actual' innocence" rather
- 6 -
than mere "'legal' innocence."
Johnson v. Alabama, 256 F.3d 1156,
1171 (11th Cir. 2001) (citations omitted), cert. denied, 535 U.S.
926 (2002).
V.
PROCEDURAL HISTORY
The Court, in order to provide context for the two grounds at
issue, presents a brief summary of the history of the case.
Petitioner
was
charged
by
a
Third
Amended
Information
with
attempted felony murder, armed robbery, and leaving the scene of a
crash involving injury.
Ex. D at 64-65.
On March 6, 2006,
Petitioner entered a Plea of No Contest and Negotiated Sentence.3
Id. at 78-79.
The terms included a plea of no contest to counts
one and two, straight up to the court, with the state agreeing to
nolle pros count three.
Id. at 78.
In addition to Petitioner, the
defense attorney, the prosecutor, and the judge signed the plea
form.
Underneath the judge's signature, it states:
My signature as Judge of this Court is
certification that I have discussed this plea
agreement with Defendant and Defendant's
attorney in open Court on this date and have
asked
Defendant
questions,
considered
Defendant's
responses,
and
observed
Defendant's demeanor. I find that Defendant
has the intelligence to comprehend these
constitutional rights, the terms of this plea
agreement, the contents of this written
agreement, and these proceedings. I further
find that Defendant has entered this plea
freely and voluntarily and is not under the
influence of any disability, substance, drug,
or condition which would interfere with
3
Although the plea form is dated March 3, 2006, the plea
occurred on March 6, 2006, the filing date of the document.
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Defendant's
ability
to
understand
and
appreciate the terms of this plea agreement
and its consequences.
Id. at 79.
On March 6, 2006, the court swore Petitioner in after defense
counsel announced that the state agreed to nolle pros count three,
allowing the Petitioner to plead straight up to counts one and two.
Ex. E at 14.
The court told Petitioner that his counsel entered a
guilty plea to count one, attempted first degree felony murder,
punishable by life, and to count two, armed robbery with a deadly
weapon (a motor vehicle), also punishable by life imprisonment.
Id. at 15-16.
Petitioner confirmed that he agreed to plead guilty
and the pleas were entered with his knowledge and consent.
Id. at
16-17. The court advised Petitioner of the rights he was giving up
by pleading to the offenses.
Id. at 17.
The court clarified that
even though they were no contest pleas, they would carry the same
consequences. Id. at 18. Petitioner responded that he understood.
Id. at 19. Petitioner responded affirmatively that he was pleading
no contest because he believed it to be in his best interest.
Id.
He also stated that no one forced him to plead no contest against
his will.
Id.
Petitioner confirmed that he read and understood
the form and signed it.
could read and write.
Id.
He said he completed tenth grade and
Id.
The court explained to Petitioner that he did not have a
specific negotiated sentence.
Id. at 20.
- 8 -
The court also informed
Petitioner that the guidelines were nine years to life in prison.
Id.
The court then asked,
[h]as anyone told you that you will receive a
specific sentence? Has anyone told you it is
going to be two years, three years, four
years, 12 years or anything of that nature?
It will be a lawful sentence is the only thing
that can be stated at this point, do you
understand that?
Id.
Petitioner responded yes.
Id.
The court advised Petitioner
that he would have a sentencing hearing in the future and his
sentence would be determined at that time, and Petitioner confirmed
that he understood.
Id. at 20-21.
The court asked Petitioner if he had any questions, and he
responded no. Id. at 21. The court reiterated, "[n]ow Mr. Miller,
you have entered no contest pleas to two felonies punishable by up
to life in prison, do you understand that?"
said yes.
contest
Id.
Petitioner again
The court asked Petitioner if he wanted to enter the no
pleas
as
described,
and
Petitioner
said
yes.
Id.
Petitioner said he had no complaints about his attorneys bearing on
his decision to enter the plea.
Id. at 22.
The prosecutor provided the factual basis for the plea:
If this case had proceed [sic] to trial,
the state would have been prepared to prove
that on July 15, 2004, in the County of Duval
and State of Florida, specifically Mary
Williams, the victim in this case, would have
testified she was walking on the street when
the defendant had driven a vehicle described
as a white Ford Explorer with a tan stripe.
The vehicle pulled up next to her and the
passenger reached out and grabbed her purse.
- 9 -
A struggle began.
And Ms. Williams was –ended up on the ground. The passenger began
to beat and kick Ms. Williams for her purse.
Several
witnesses,
Deborah
Newkirk,
Angela Brazelle and Geraldine Lyons were
outside a house about two or three houses
down. They observed that beating.
They also observed the defendant, Kevin
Miller, exit the driver's side, come around to
the passenger's side and kick and beat Ms.
Williams as well.
Kevin Miller then returned back into the
driver's seat and drove off. When he drove
off, Ms. Williams still had her purse –- a
hold of her purse due to her purse being over
her shoulder. She was pulled under into [sic]
the vehicle, but her legs were caught in the
wheels and were subsequently run over.
Her injuries were a collapsed lung, a
broken pelvis, left leg fractures in several
places. She was in a comma [sic] for about a
month.
Id. at 22-24.
The prosecutor provided additional facts and stated that
Petitioner's actions were contrary to the Florida Statutes. Id. at
24-25.
Of note, the court inquired as to whether the state was
going to rely on some Williams rule evidence as to the question of
Petitioner's knowledge as to what his passenger was going to do,
and the prosecutor responded that had the case proceeded to trial
and the court granted the admission of the Williams rule evidence,
evidence would have been presented regarding two robberies from
June 8 and July 9, with Petitioner being identified as the robber
of purses by two victims.
Id. at 25.
- 10 -
The court noted, to the extent that it may have some bearing
on the case, he had reviewed the motion and the case law, and he
would have allowed the state to use the Williams rule evidence
because the crimes were sufficiently similar, the evidence would
show the absence of mistake, and it would also show knowledge on
the part of Petitioner with respect to the purse snatching.
Id.
Defense counsel announced no legal exception to the factual basis
for the plea, but stated that the defense disagreed with the facts
as presented by the state.4
Id. at 26.
The court found a factual basis for the pleas as to counts one
and two, found that Petitioner freely and voluntarily entered his
pleas "with a full understanding of the nature of the charges, the
maximum and minimum possible sentences herein and the consequences
of both guilty pleas[.]" Id.
The court accepted the pleas and
deferred the matter for sentencing.
Id.
On April 6, 2006, the Court briefly summarized the state of
the case.
Okay. Let's review where we stand. Mr.
Miller was charged in a third amended
information with the charges of attempted
felony murder, armed robbery and leaving the
scene of a crash involving injuries.
And on March 6, 2006, Mr. Miller entered
pleas of no contest to Counts 1 and 2. And
the state agreed to nol pros or dismiss or
drop Count 3, . . . .
4
Petitioner asserts that his co-defendant "did everything."
Petition at 17.
- 11 -
Ex. D at 181.
The court inquired as to whether both counts were punishable
by life in prison, and the prosecutor confirmed that that was the
case.
Id. at 183.
The court then inquired as to whether there was
an agreement as to a range, and Petitioner's counsel responded no,
and then noted that "the guidelines are nine years."
Id.
The
court asked the prosecutor if the state agreed that the guidelines
are nine years to life, and the prosecutor responded in the
affirmative.
Id.
The court reiterated the range of the possible
sentence: "[n]ine years to life, okay."
Id.
The court allowed Petitioner to present his witnesses in
mitigation, and he did so.
Id. at 184-205.
witnesses, including the victim's husband.
The state presented
He testified about his
wife's injuries, surgeries and condition.
Id. at 217-24.
He
explained that after the incident, she was in a coma and in
critical condition.
on her leg.
Id. at 219-20.
Id. at 221.
She had five or six surgeries
In addition, the victim, Mary Williams,
submitted a letter to the court, which the prosecutor read aloud.
Id. at 225-27.
In her letter, the victim explained that when she
arrived at the hospital she was in a coma with a collapsed lung,
she had a concussion, a pinched nerve in her neck, a broken pelvis,
and contusions over her body.
may live six hours.
hospital.
Id.
Id.
Id. at 225.
The doctors thought she
She survived and spent five months in the
She described her disabilities due to her injuries
and referenced the multiple surgeries she had to have due to her
- 12 -
injuries.
Id. at 226.
Finally, she explained the impact on her
three children who witnessed the incident on July 15, 2004. Id. at
226-27.
The prosecutor argued that Petitioner's act deserved a life
sentence, but "since he pled, the term of years the state feels
that nothing less than 25 years would be acceptable."
Id. at 230.
The prosecutor also reminded the court that Petitioner faced life
in prison.
Id.
The court announced:
Okay.
Mr. Miller, based on your
previously entered and accepted guilty pleas
to Counts 1 and 2, at this time, I will
adjudicate you to be guilty of Counts 1 and 2.
It is the judgment and sentence of the
Court that you serve a term of 25 years in the
custody of the Department of Corrections.
Those
sentences
concurrently.
are
to
be
served
Id. at 232.
The court entered the judgment and sentence on April 6, 2006.
Id. at 82-87.
Petitioner appealed.
Id. at 101.
On June 28, 2006,
the First District Court of Appeal dismissed the appeal for failure
to pay the filing fee.
Ex. F; Ex. G.
On April 11, 2006, Plaintiff filed a motion to reduce sentence
pursuant to Rule 3.800(c), Fla. R. Crim. P.
Ex. D at 91-92.
April 12, 2006, the court denied the motion.
On
Id. at 93.
Through counsel, on August 15, 2006, Petitioner filed a motion
to withdraw his plea.
hearing on the motion.
Id. at 102-11.
Id. at 235-305.
- 13 -
The court conducted a
On December 15, 2006, the
court denied the motion.
Petitioner appealed.
Id. at
Petitioner's appellate counsel filed an Anders brief.5
113.
H.
Id. at 112.
Petitioner filed a pro se brief.
Ex. I.
Ex.
Petitioner's
appellate counsel filed an amended initial brief raising one
ground: the trial court erred in denying a pro se motion to correct
an illegal sentence or sentencing error.
Ex. J.
In the amended
brief, counsel referenced Petitioner's pro se Motion to Correct an
Illegal Sentence or Sentencing Error asserting the conviction and
sentence for armed robbery was illegal.
1-9,
Id. at 6-7.
See Ex. I at
Motion to Correct an Illegal Sentence or Sentencing Error.
The trial court failed to rule on the motion to correct and it was
deemed denied by law.
Ex. J at 7.
The appellate court ordered
briefing on the issue, and in response, counsel filed an amended
brief.
Id.
The state responded.
Ex. K.
Petitioner replied.
Ex.
L.
The
First
District
Court
of
Appeal,
on
July
31,
2008,
reversed, holding the facts failed to support an armed robbery
charge, as conceded to by the state, and citing State v. Burris,
875 So.2d 408 (Fla. 2004) (holding that the use of a motor vehicle
cannot constitute carrying a weapon for purposes of an armed
robbery charge).
2008.
Ex. N.
Ex. M at 1.
The mandate issued on August 18,
On remand, the trial court vacated the sentence as
to count two, and resentenced Petitioner to a concurrent sentence
5
Anders v. California, 386 U.S. 738 (1967).
- 14 -
of fifteen years imprisonment on count two.6
Ex. O; Ex. P.
Petitioner appealed, failed to pay the fee or properly establish
that he was a pauper, and on February 10, 2009, the First District
Court of Appeal dismissed the appeal.
Ex. R; Ex. S; Ex. T; Ex. U.
The appellate court denied rehearing and reinstatement. Ex. V; Ex.
W; Ex. X; Ex. Y; Ex. Z.
On October 25, 2009, pursuant to the mailbox rule, Petitioner
filed a Rule 3.850 post conviction motion in the trial court.
BB at 1-8.
Ex.
On August 4, 2010, the trial court denied the Rule
3.850 motion, but granted relief on a construed motion to correct
sentencing error acknowledging that the re-recorded judgment should
reflect a conviction for simple robbery for count two, not armed
robbery.
Id. at 22-27.
Petitioner appealed.
Id. at 69.
The First District Court of
Appeal, on October 14, 2010, ordered a response as to why the
summary denial of Petitioner's first claim should not be reversed
and remanded.
Ex. CC.
The state responded.
Ex. DD.
On December
28, 2010, the First District Court of Appeal affirmed the denial of
ground two, but reversed and remanded on ground one for the trial
court to either attach portions of the record conclusively refuting
the claim, or hold an evidentiary hearing.
issued on January 25, 2011.
6
Ex. EE.
The mandate
Ex. FF.
It should be noted that in the re-recorded Judgment, the
trial court failed to correct the judgment to reflect a conviction
for simple robbery. Ex. O at 1.
- 15 -
On remand, the circuit court conducted an evidentiary hearing
on May 17, 2011.
Ex. HH at 88-179.
Petitioner was represented by
counsel at the hearing.
Id. at 89.
In a thorough decision, the
court denied ground one.
Id. at 77-85.
Petitioner appealed.
Id.
at 202. Petitioner filed an appeal brief through counsel. Ex. II.
The state answered.
Ex. JJ.
On May 3, 2013, the First District
Court of Appeal affirmed per curiam.
on May 29,2013.
VI.
Ex. KK.
The mandate issued
Ex. LL.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Ground One
Ground one of the Petition is a denial of effective assistance
of counsel/involuntary plea claim.
Petition at 5.
In support of
this ground, Petitioner claims his attorney was ineffective for
misadvising him that there was no viable defense to armed robbery,
and this misadvice prejudiced Petitioner because counsel also
advised that, if Petitioner proceeded to trial, the jury would
likely return a favorable verdict on the attempted felony murder
count and an unfavorable verdict on the armed robbery count,
resulting in a conviction punishable by life in prison, when such
a sentence was precluded by case law as it was a simple robbery,
not
an
armed
robbery.
Petitioner
claims
that
but
for
this
misadvice, he would not have pleaded no contest and would have
proceeded to trial.
After an evidentiary hearing, the circuit court denied this
claim.
The First District Court of Appeal affirmed.
- 16 -
Certainly of
significance is the fact that the circuit court recognized the twopronged Strickland standard for reviewing claims of ineffective
assistance of counsel.
Ex. HH at 78-79.
Also of import, the court
relied on Hill v. Lockhart, and imparted that to satisfy the
prejudice requirement in a guilty or no contest plea case, the
defendant must show that there is a reasonable probability that,
but for his counsel's errors, he would not have pled and would have
insisted on going to trial.
Ex. HH at 79.
In its decision, the circuit court first found that counsel
did err by telling Petitioner that there was no viable defense to
the charge of armed robbery.
Id. at 80.
The circuit court
concluded that Petitioner satisfied the first prong of Strickland.
Ex. HH at 81.
The court did not, however, find that Petitioner
satisfied the prejudice prong.
The court relied on Petitioner's testimony at the evidentiary
hearing.
At the hearing, the following transpired.
Petitioner's
counsel inquired:
Q
And, in fact, did you ever tell
Williams that you wanted to go to trial?
A
Yes, ma'am.
Q
Mr.
And what was his response?
A
His response was I was going to get a
life sentence against one of those charges.
Q
Now, did Mr. Williams ever tell you that
it was possible that you could get a favorable
verdict on the attempted felony murder charge?
A
No, ma'am.
- 17 -
Id. at 108-109.
The court concluded that this testimony corroborated trial
counsel's testimony that counsel thought the attempted felony
murder charge was the state's best case.
Id. at 82, 100.
The
court found that "both Defendant and Counsel have testified that
Counsel did not advise Defendant, at the time of his plea, that he
would probably be acquitted on the attempted felony murder charge."
Id. at 82.
Thus, at the time of his plea, Petitioner was facing a
life sentence on the attempted felony murder charge, regardless of
whether the second count was simple robbery or armed robbery. Upon
consideration of these factors, the court concluded that the
content
of
Petitioner
and
his
counsel's
testimony
at
the
evidentiary hearing weakened Petitioner's claim, but it did not
completely refute it.
Id.
As a result, the court referred to
other portions of the record in order to make and support its
ruling.
The
Id.
court
Petitioner's
relied
motion
to
on
the
withdraw
post-sentencing
his
plea.
Id.
hearing
A
on
detailed
explanation followed as to why Petitioner "would have still agreed
to the plea agreement had the armed robbery charge been properly
charged as simple robbery."
Id. at 83.
The court provided the
following analysis:
A sample scoresheet, properly charging simple
robbery, reveals that the minimum of the
guidelines sentence range would be reduced to
7.66 years. If Defendant agreed to the actual
plea offer because he would rather serve the
- 18 -
lower end of a sentencing range of 9.375 years
to life than to go to trial and risk a
conviction and life sentence on the armed
robbery charge (assuming an acquittal on the
attempted felony murder charge), he would
surely have agreed to the possibility of
receiving an even lower possible minimum
sentence in a range of 7.66 years to life
rather than to go to trial and risk a
conviction and life sentence on attempted
felony murder and either an acquittal or
conviction on simple robbery, since 7.66 is
less than 9.375.
Id.
Finally, the court noted that the state agreed to nolle pros
the aggravated battery charge which reduced the minimum guidelines
sentence to under ten years, making an open plea to the court more
appealing.
Id. at 84.
The same appeal, if not more, would have
existed if the aggravated robbery had been reduced to simple
robbery.
As a result, the circuit court held that, in considering
the totality of the circumstances, Petitioner failed to show
prejudice "because he failed to show that he would not have
accepted the State's plea offer and proceeded to trial."
Id.
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.
The circuit court found that
given the totality of the circumstances, there was no reasonable
probability
under
the
circumstances
presented,
that,
but
for
counsel's misadvice, Petitioner would have insisted on going to
- 19 -
trial.
As
a
result,
the
Court
found
Petitioner
failed
to
demonstrate the required prejudice to meet the prejudice prong.
In order for a no contest plea to be constitutionally valid,
it must be made knowingly, intelligently, and voluntarily.
v. Burton, 26 F.3d 1093, 1096 (11th Cir. 1994).
Pardue
In reviewing
a
state court no contest plea, a federal habeas court looks 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).
In this case, Petitioner has not shown that there is a
reasonable probability that, but for counsel's alleged errors,
Petitioner would not have pleaded no contest and would have
insisted on going to trial. With regard to attempted felony murder
count, Petitioner was facing a life sentence.
Defense counsel
thought the attempted felony murder charge was the state's best
case.
Ex. HH at 100.
He believed that Petitioner's chance of
getting a life sentence if he proceeded to trial "was very, very
significant[.]"
Ex. D at 246.
Counsel attested that he concluded
- 20 -
that it was in his client's best interest to plead straight up to
the court, recognizing that based on the state's case, Petitioner
had, what counsel considered to be a slim chance, defined as less
than ten percent, of prevailing at trial.
Id.
Petitioner has not shown prejudice, as Petitioner was facing
substantial time.
He 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.
Accordingly,
Petitioner's
ineffectiveness claim is without merit since he has not satisfied
the prejudice prong pursuant to Hill.
Petitioner is not entitled to relief on ground one of the
Petition, the claim of ineffective assistance of trial counsel
resulting in an involuntary plea.7
Deference, under AEDPA, should
be given to the state court's decision.
Petitioner raised the
issue in his Rule 3.850 motion, the trial court denied the motion,
and the appellate court affirmed.
Ex. KK.
The state court's
adjudication of this claim is not contrary to or an unreasonable
application of Strickland and Hill, or based on an unreasonable
determination of the facts.
Ground one, Petitioner's claim of
ineffective assistance of counsel resulting in an involuntary plea,
is due to be denied.
7
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. E at
17, 22-26.
- 21 -
Ground Two
In his second ground, Petitioner claims that his attorney was
constitutionally ineffective because he failed to object to the
factual basis for attempted felony murder because it was predicated
on the armed robbery, which was not an independent criminal act.
Petition at 6. Respondents contend that this ground is unexhausted
and procedurally defaulted.
Response at 14.
In order for Petitioner to establish cause,
the procedural default "must result from some
objective factor external to the defense that
prevented [him] from raising the claim and
which cannot be fairly attributable to his own
conduct."
McCoy v. Newsome, 953 F.2d 1252,
1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639).
Under the
prejudice prong, [a petitioner] must show that
"the
errors
at
trial
actually
and
substantially disadvantaged his defense so
that he was denied fundamental fairness." Id.
at 1261 (quoting Carrier, 477 U.S. at 494, 106
S.Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir.), cert. denied, 528
U.S. 934 (1999).
Petitioner was certainly cognizant of the claim as he alleges
that he discussed the issue with his trial attorney prior to the
entry of the plea.
Petition at 17.
Petitioner also contends that
during the plea proceeding, he again raised the matter with his
defense attorney, whispering to his counsel that the causation and
factual
basis
provided
by
the
state
did
not
satisfy
the
requirements for a separate conviction for attempted felony murder.
Id. at 18.
Thus, Petitioner was well-aware of the nature of the
- 22 -
claim and could have included it in his post conviction motion, if
he so desired.
Petitioner is apparently blaming the lack of counsel at the
inception of his post conviction proceeding for his failure to
raise the issue in his Rule 3.850 motion.
Petition at 20-23.
He
urges this Court to find that the narrow exception provided for in
Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012) is applicable to his
situation because "he was unrepresented by counsel during his
initial-review-collateral proceeding[.]" Petition at 23.
Upon review of the record, Petitioner may not have had
representation at the inception of his post conviction proceeding,
but he was represented by Mechelle Herrington, Esquire, and she
appeared as his counsel at the Rule 3.850 evidentiary hearing. Ex.
HH at 89.
As noted by Respondents, since Petitioner had post
conviction counsel, he could have asked her to evaluate and assess
whether additional claims should be made during the post conviction
proceeding.
Response at 17.
Apparently, he did not make this
inquiry as he neither alleges or shows that such an inquiry was
made.
Id.
Petitioner
has
not
alleged
or
demonstrated
that
Ms.
Herrington's performance as post conviction counsel amounted to
ineffective assistance of counsel. See Martinez v. Ryan, 132 S.Ct.
at 1320 ("Where, under state law, claims of ineffective assistance
of trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas
- 23 -
court from hearing a substantial claim of ineffective assistance of
counsel at trial if, in the initial-review collateral proceeding,
there
was
no
counsel
or
counsel
in
that
proceeding
was
ineffective.").
The trial court appointed counsel to represent Petitioner in
his post conviction proceeding; therefore, this Court's 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.'" Rompilla v. Beard, 545 U.S. 374, 381 (2005)
(citations omitted). The standard is reasonably effective counsel,
not the perfect assistance of counsel.
show
that
counsel
Ms.
fell
Herrington's
below
an
Petitioner has failed to
representation
objective
standard
as
of
post
conviction
reasonableness.
Petitioner has also failed to show that there was a reasonable
probability that the results of the post conviction proceeding
would have been different but for the actions and/or omissions of
Ms. Herrington.
This
Court
finds
procedurally defaulted.
that
ground
two
is
unexhausted
and
Petitioner has failed to show cause and
prejudice or that a fundamental miscarriage of justice will result
if the Court does not reach the merits of the claim.
Although
Petitioner claims that his procedural default should be excused,
- 24 -
relying on Martinez, Petitioner has failed to show that he falls
within the narrow parameters of the ruling in Martinez, which
recognized a narrow exception for ineffective assistance of counsel
at initial-review collateral proceedings.
As such, Petitioner has
failed to establish cause for the procedural default of his claim
of ineffective assistance of trial counsel raised in ground two of
the Petition.
In the alternative, Respondents contend that this ground is
moot based on the relief already provided by the state courts.
Response at 14.
Indeed, upon review, Petitioner's conviction for
armed robbery has been reduced to simple robbery.
In count one of
the Third Amended Information, he was charged with, during the
course of perpetrating a robbery, committing, aiding or abetting
"an intentional act that was not an essential element of the
Robbery" and that could but did not cause the death of the victim.
Ex. D at 64.
Upon review, there were intentional acts referenced
in the factual basis for the plea that were not part of the
essential elements of robbery:
the beating of the victim, by both
Petitioner and his co-defendant, and the running over the victim
with a vehicle by the driver, Petitioner.
As such, the state
provided an adequate factual basis for the plea to attempted felony
murder.
Respondents
contend:
"the
First
District
has
cured
any
deficiency by trial counsel when it, as a matter of Florida-law
fundamental error, reversed Petitioner's armed robbery conviction,
- 25 -
for imposition of a lesser-included and legally permissible simple
robbery sentence."8
Response at 18 (citations omitted).
Upon due
consideration, the Court finds that the deficiency has been cured,
the matter is moot, 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.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.9
Because this Court
8
In count two of the Third Amended Information, the armed
robbery count, the state identified the motor vehicle as the deadly
weapon. Ex. D at 64. The trial court, in denying the Rule 3.850
motion, noted that had Petitioner's claim of ineffective assistance
of counsel raised in ground two of the motion not been procedurally
defaulted, the claim "that the same use of force (the use of the
automobile) may not be used to prove both Attempted Felony Murder
and Armed Robbery" would have been dismissed as moot because the
trial court had already reduced the armed robbery count to simple
robbery. Ex. BB at 25-26.
9
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
- 26 -
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 19th day of
November, 2015.
sa 11/17
c:
Kevin J. Miller
Counsel of Record
certificate of appealability.
- 27 -
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