Nazario v. Secretary, Department of Corrections et al
ORDER denying the Petition 1 and dismissing the case with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 4/29/2016. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 3:13-cv-786-J-34JRK
DEPARTMENT OF CORRECTIONS,
Petitioner Javier Nazario, an inmate of the Florida penal
system, initiated this action on July 3, 2013, by filing a pro se
Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254. In the Petition, Nazario challenges a 2010 state
court (Duval County, Florida) judgment of conviction for aggravated
fleeing or attempting to elude a law enforcement officer, felony
driving under the influence, and driving while license suspended or
revoked. Respondents have submitted a memorandum in opposition to
the Petition. See Respondents' Answer to Petition for Writ of
Habeas Corpus (Response; Doc. 7) with exhibits (Resp. Ex.). On
September 26, 2013, the Court entered an Order to Show Cause and
Notice to Petitioner (Doc. 5), admonishing Nazario regarding his
obligations and giving Nazario a time frame in which to submit a
reply. Nazario submitted a brief in reply. See Response (Doc. 11).
This case is ripe for review.
II. Procedural History
On September 22, 2010, in Case No. 2010-CF-9756, the State of
Florida charged Nazario with aggravated fleeing or attempting to
elude a law enforcement officer (count one), felony driving under
the influence (count two), and driving while license suspended or
revoked (count three). Resp. Ex. A, Information. On November 10,
2010, Nazario entered a plea of guilty and negotiated sentence.
Resp. Exs. B; I, attached Ex. C, Transcript of the Plea Hearing
(Plea Tr.). That same day, the trial court sentenced him to a term
imprisonment of five years for count two, and a jail term of
seventy-three days for count three, such terms to run concurrently
with each other. Resp. Ex. C, Judgment; Plea Tr. at 12. Nazario did
not appeal his judgment and sentence.
Procedure 3.800(a). Resp. Ex. D. That same day, he filed a motion
for post-conviction relief pursuant to Florida Rule of Criminal
Procedure 3.850. Resp. Ex. E. In his request for post-conviction
relief, he asserted that counsel was ineffective because she failed
Petitioner filed a motion to strike his Rule 3.800 and 3.850
motions and sought permission to file an amended Rule 3.850 motion.
Resp. Ex. F.
On November 7, 2011, Nazario filed a pro se amended motion for
post-conviction relief (amended Rule 3.850 motion). Resp. Ex. G. In
his request for post-conviction relief, he asserted that his plea
was involuntarily entered by “illegal inducement” because counsel
lied when she told him that it would be in his best interest to
enter the plea (ground one), and counsel was ineffective because
she told him that “the State had enough evidence to establish a
prima facie case of guilt against him on all charges” (ground two).
Resp. Ex. G. On June 19, 2012, the trial court denied his Rule
3.800 motion and his original and amended Rule 3.850 motions. Resp.
Ex. H. On September 12, 2012, the trial court vacated its June 19,
2012 order, and denied the amended Rule 3.850 motion. Resp. Ex. I.
The court denied Nazario’s motion for rehearing on October 5, 2010.
Resp. Exs. J; K. On Nazario’s appeal, the parties did not file
briefs. On March 11, 2013, the appellate court affirmed the trial
court’s denial per curiam without issuing a written opinion, see
Nazario v. State, 111 So.3d 885 (Fla. 1st DCA 2013); Resp. Ex. L,
and later denied Nazario’s motion for rehearing on April 29, 2013,
see Resp. Exs. M; N. The mandate issued on May 15, 2013. Resp. Ex.
III. One-Year Limitations Period
The Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d); Response at 5-7.
IV. Evidentiary Hearing
“In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition’s factual allegations, which, if
true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted).
“It follows that if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing.” Id. The pertinent
facts of this case are fully developed in the record before the
Court. Because this Court can “adequately assess [Petitioner’s]
claim[s] without further factual development,” Turner v. Crosby,
339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will
not be conducted.
V. Standard of Review
The Court will analyze Nazario’s claims under 28 U.S.C. §
2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Section 2254(d) states:
An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of
the claim (1) resulted in a decision that
was contrary to, or involved an
unreasonable application of, clearly
determined by the Supreme Court of
the United States; or
(2) resulted in a decision that
determination of the facts in light
of the evidence presented in the
State court proceeding.
‘adjudicated on the merits’ in state court, subject only to the
exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562
U.S. 86, 98 (2011). As the United States Supreme Court stated,
“AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt
v. Titlow, 134 S.Ct. 10, 16 (2013). This standard of review is
described as follows:
Under AEDPA, when the state court has
adjudicated the petitioner’s claim on the
merits, a federal court may not grant habeas
relief 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 proceeding,” id. §
2254(d)(2). “Under § 2254(d)(1)’s ‘contrary
to’ clause, we grant relief only ‘if the state
court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question
of law or if the state court decides a case
differently than [the Supreme Court] has on a
set of materially indistinguishable facts.’”
Jones v. GDCP Warden, 753 F.3d 1171, 1182
(11th Cir. 2014) (quoting Williams v. Taylor,
529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d
‘unreasonable application’ clause, we grant
relief only ‘if the state court identifies the
correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the
prisoner's case.’” Id. (quoting Williams, 529
U.S. at 413, 120 S.Ct. 1495).
For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court – not Supreme Court dicta, nor
the opinions of this Court. White v. Woodall,U.S. -, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698
(2014). To clear the § 2254(d) hurdle, “a
state prisoner must show that the state
court’s ruling on the claim being presented in
federal court was so lacking in justification
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington v. Richter, 562 U.S. 86, 131 S.Ct.
770, 786-87, 178 L.Ed.2d 624 (2011). “[A]n
‘unreasonable application of’ [Supreme Court]
holdings must be ‘objectively unreasonable,’
not merely wrong; even ‘clear error’ will not
suffice.” Woodall, 134 S.Ct. at 1702 (quoting
Lockyer v. Andrade, 538 U.S. 63, 75-76, 123
S.Ct. 1166, 155 L.Ed.2d 144 (2003)). A state
court need not cite or even be aware of
Supreme Court cases “so long as neither the
reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer,
537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263
(2002); accord Richter, 131 S.Ct. at 784.
“AEDPA thus imposes a highly deferential
standard for evaluating state-court rulings
and demands that state-court decisions be
given the benefit of the doubt.” Renico v.
Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176
L.Ed.2d 678 (2010) (citations and internal
quotation marks omitted). And when a claim
implicates both AEDPA and Strickland, our
review is doubly deferential. Richter, 131
S.Ct. at 788 (“The standards created by
Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem,
review is doubly so.” (citations and internal
quotation marks omitted)). [A petitioner] must
establish that no fairminded jurist would have
reached the Florida court’s conclusion. See
Richter, 131 S.Ct. at 786-87; Holsey v.
Warden, Ga. Diagnostic Prison, 694 F.3d 1230,
1257-58 (11th Cir. 2012). “If this standard is
difficult to meet, that is because it was
meant to be.” Richter, 131 S.Ct. at 786....
Taylor v. Sec’y, Fla. Dep’t of Corr., 760 F.3d 1284, 1293-94 (11th
Cir. 2014), cert. denied, 135 S.Ct. 2323 (2015); see also Hittson
v. GDCP Warden, 759 F.3d 1210, 1230 (11th Cir. 2014), cert. denied,
135 S.Ct. 2126 (2015).
adjudication on the merits, so that the state court’s determination
will be entitled to deference for purposes of federal habeas corpus
review under AEDPA, all that is required is a rejection of the
claim on the merits, not an opinion that explains the state court’s
rationale for such a ruling. Hittson, 759 F.3d at 1232 (“[T]here is
no AEDPA requirement that a state court explain its reasons for
rejecting a claim[.]”); Richter, 562 U.S. at 100 (holding and
reconfirming that “§ 2254(d) does not require a state court to give
reasons before its decision can be deemed to have been ‘adjudicated
on the merits’”); Wright v. Sec’y for the Dep’t of Corr., 278 F.3d
1245, 1255 (11th Cir. 2002). Thus, to the extent that Nazario’s
claims were adjudicated on the merits in the state courts, they
must be evaluated under § 2254(d).
VI. Ineffective Assistance of Counsel
“The Sixth Amendment guarantees criminal defendants effective
reasonableness and thereby prejudices the defense.” Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
“counsel’s representation fell below an
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a “strong presumption”
that counsel’s representation was within the
“wide range” of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger’s burden is to show “that counsel
made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors,
the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence
in the outcome.” Id., at 694, 104 S.Ct. 2052.
It is not enough “to show that the errors had
some conceivable effect on the outcome of the
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); see
Lynch v. Sec’y, Fla. Dep’t of Corr., 776 F.3d 1209, 1218 (11th Cir.
2015) (citation omitted) (stating that, to succeed on a claim that
counsel was ineffective because he advised petitioner to plead
guilty, petitioner “must prove that: (1) counsel’s advice was
deficient; and (2) ‘but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial’”), cert.
denied, 136 S.Ct. 798 (2016).
proceeding.” Id., at 693, 104 S.Ct. 2052.
Counsel’s errors must be “so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable.” Id., at 687, 104
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the
absence of any iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other.” Ward v. Hall, 592 F.3d at
1163. Since both prongs of the two-part Strickland test must be
satisfied to show a Sixth Amendment violation, “a court need not
address the performance prong if the petitioner cannot meet the
prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley,
209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If
it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be so,
that course should be followed.” Strickland, 466 U.S. at 697.
A state court’s adjudication of an ineffectiveness claim is
accorded great deference.
representation is a most deferential one.”
Richter, - U.S. at -, 131 S.Ct. at 788. But
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so.” Id.
(citations and quotation marks omitted). “The
question is not whether a federal court
believes the state court’s determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold.” Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
1420, 173 L.Ed.2d 251 (2009) (quotation marks
omitted). If there is “any reasonable argument
deferential standard,” then a federal court
may not disturb a state-court decision denying
the claim. Richter, - U.S. at -, 131 S.Ct. at
Hittson, 759 F.3d at 1248; Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). “In addition to the deference to counsel’s performance
deference--this one to a state court’s decision--when we are
considering whether to grant federal habeas relief from a state
court's decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004). As such, “[s]urmounting Strickland’s high bar is never
an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
VII. Findings of Fact and Conclusions of Law
Mechelle Herrington) was ineffective because she coerced him into
entering a guilty plea. See Petition at 5-6. Assuming that Nazario
intends to raise the same ineffectiveness claim here that he raised
in his amended Rule 3.850 motion in state court, see Resp. Ex. G,
his ineffectiveness claim is sufficiently exhausted. Identifying
the two-prong Strickland ineffectiveness test and Hill v. Lockhart
as the controlling law, see Resp. Ex. I at 1-2, the post-conviction
court denied the amended Rule 3.850 motion with respect to the
claim, stating in pertinent part:
Both of Defendant’s grounds essentially
state the same claim, therefore, they will be
considered together. In his first ground for
relief, Defendant avers that his plea was
involuntary. He states that counsel lied to
him when explaining that a plea would be in
his best interest because counsel overstated
the strength of the State’s case against him.
Defendant alleges that this falsehood, along
investigate the case, resulted in a coerced
plea for which there was no factual basis
because there was insufficient evidence to
support a conviction for Counts One and Two.
Defendant again alleges that counsel lied and
provided misadvice when she told Defendant
that “the State had enough evidence against
him to establish a prima facie case of guilt
on all charges.” (Def.’s Mot. at 3.) This
time, however, Defendant states that counsel’s
deficient performance (lying to him about the
facts and law of the case, as stated in Ground
One) induced him to take a plea instead of
going to trial on Counts One and Two.
Regarding the sufficiency of Defendant’s
plea, the Court finds that the plea was
supported by a factual basis and was
knowingly, intelligently, and voluntarily
made. During Defendant’s plea colloquy,
Defendant stipulated to a factual basis for
the plea. (Ex. C at 6.) The Court found that
based on the stipulation and the sworn arrest
and booking report, a factual basis existed
for Defendant’s plea. (Ex. C at 8; D.) Koenig
1992)(finding stipulation to a factual basis
is acceptable provided that a factual basis
exists in the record.) Following a detailed
colloquy, the Court accepted Defendant’s plea
as knowingly and voluntarily made. (Ex. C at
11.) A defendant may not seek to go behind his
sworn testimony at a plea hearing in a
postconviction motion. Stano v. State, 520
So.2d 278 (Fla. 1988); Bir v. State, 493 So.2d
55 (Fla. 1st DCA 1986); Dean v. State, 580
So.2d 808 (Fla. 3d DCA 1991).
Further, during the colloquy, the Court
explained to Defendant that he had the right
to go to trial and challenge the evidence
against him. (Exhibit C at 9-10). At no time
did Defendant indicate to the Court that he
felt there was insufficient evidence to
sustain the charges against him and that he
wished to go to trial. (Ex. C).
The Court also ascertained that Defendant
had not been forced, threatened, or promised
anything to induce a plea. (Ex. C at 7.)
Defendant admitted to the Court that he was
pleading guilty to the charges against him
because he was, in fact, guilty. (Ex. C at
6-11.) As indicated supra, a defendant may not
seek to go behind his sworn testimony at a
plea hearing in a postconviction motion.
Stano, 520 So.2d at 278; Bir, 493 So.2d at 55;
Dean, 580 So.2d at 808.
As for satisfaction with counsel’s
representation, Defendant affirmed that his
counsel had satisfactorily answered all of his
questions, that she “had not failed him in any
aspect of the representation,” and that he was
completely satisfied with her services. (Ex. C
at 11.) Despite the opportunity, at no time
did Defendant tell the Court that counsel
failed to investigate his case or lied to him
about the strength of the State’s case. Again,
defendant may not seek to go behind his sworn
postconviction motion. Stano, 520 So.2d 278;
Bir, 493 So.2d 55; Dean, 580 So.2d 808.
The record, including the sworn arrest
report and transcript of Defendant’s plea
colloquy and sentencing hearing, refutes the
claims raised in the instant Motion. See
Johnson v. State, 22 So.3d 840, 844 (Fla. 1st
DCA 2009)(“When determining ‘whether an
allegation is conclusively refuted by the
record, [a trial court] may rely on the sworn
testimony the defendant has given in the plea
colloquy. Any allegations that contradict
those answers should not be entertained.’”)
(citing Smith v. State, 21 So.3d 72, 76 (Fla.
1st DCA 2009)[)]. Instead, the record supports
knowingly, intelligently, and voluntarily
made. Therefore, Defendant has not met his
burden under Strickland. He has demonstrated
neither deficient performance by counsel nor
resulting prejudice. Accordingly, for the
above[-]stated reasons, Defendant’s Motion is
Resp. Ex. I at 3-5 (footnotes omitted). On Nazario’s appeal, the
appellate court affirmed the trial court’s denial per curiam, see
Nazario, 111 So.3d 885; Resp. Ex. L, and later denied Nazario’s
motion for rehearing, see Resp. Exs. M; N.
Given the record in the instant action, the appellate court
conviction relief on the merits. If the appellate court addressed
the merits, Nazario would not be entitled to relief because the
state courts’ adjudications of this claim are entitled to deference
under AEDPA. After a review of the record and the applicable law,
the Court concludes that the state courts’ adjudications of this
claim were not contrary to clearly established federal law and did
not involve an unreasonable application of clearly established
federal law. Nor were the state court adjudications based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Thus, Nazario is not
entitled to relief on the basis of this claim.
Even assuming that the appellate court did not affirm the
denial of the post-conviction motion on the merits or that the
state courts’ adjudications of the claim are not entitled to
deference under AEDPA, Nazario’s ineffectiveness claim is still
without merit. The record supports the trial court’s conclusion. In
evaluating the performance prong of the Strickland ineffectiveness
inquiry, there is a strong presumption in favor of competence. See
Anderson v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 881, 904 (11th
Cir. 2014), cert. denied, 135 S.Ct. 1483 (2015). The inquiry is
“whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent
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).
Thus, Nazario must establish that no competent attorney would have
taken the action that counsel, here, chose.
Moreover, the test for ineffectiveness is neither whether
counsel could have done more nor whether the best criminal defense
attorneys might have done more; in retrospect, one may always
identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514 (11th
Cir. 1995) (stating that “perfection is not the standard of
effective assistance”) (quotations omitted). Instead, the test is
whether what counsel did was within the wide range of reasonable
professional assistance. Ward, 592 F.3d at 1164 (quotations and
citation omitted); Dingle v. Sec’y for Dep’t of Corr., 480 F.3d
reasonable lawyer at the trial could have acted as defense counsel
acted in the trial at issue and not what ‘most good lawyers’ would
have done.”) (citation omitted).
The United States Supreme Court has determined that “the
representations of the defendant . . . [at a plea proceeding] as
proceedings. Solemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73-74
(1977). Moreover, “[a] reviewing federal court may set aside a
state court guilty plea only for failure to satisfy due process: If
a defendant understands the charges against him, understands the
consequences of a guilty plea, and voluntarily chooses to plead
guilty, without being coerced to do so, the guilty plea . . . will
be upheld on federal review.” Stano v. Dugger, 921 F.2d 1125, 1141
(11th Cir. 1991). On this record, Nazario has failed to carry his
burden of showing that his counsel’s representation fell outside
that range of reasonably professional assistance.
At the plea and sentencing hearing, the following colloquy
THE COURT: Have you had enough time
to discuss this with your attorney?
THE DEFENDANT: Yes, sir.
THE COURT: Has she answered all of
your questions you have had to your
THE DEFENDANT: Yes, sir.
THE COURT: Has she failed you in any
respect in her representation of
THE DEFENDANT: No, sir.
THE COURT: Are you completely
satisfied with her services as an
THE DEFENDANT: Yes, sir.
THE COURT: Do you need more time to
speak with her before I accept your
THE DEFENDANT: No, sir.
THE COURT: I'll find that your plea
voluntarily, intelligently, with a
consequences. I'll find there's a
factual basis for entry of the plea.
Did I ask you if there was any DNA
MS. HERRINGTON: Yes, you did, Your
Honor. There is none.
THE COURT: Thank you.
As to -- I will accept the plea
agreement. You will be adjudicated
on all counts.
Plea Tr. at 10-12. In addition to Nazario’s affirmations at the
plea hearing, the signed negotiated plea form states, in pertinent
I understand that by pleading guilty I give up
the following constitutional rights: the right
to trial by judge or jury (including, if I am
charged with a capital offense, the right to a
jury of twelve persons), the right to be
represented by counsel at trial, the right to
have counsel appointed to represent me if I
cannot afford to retain counsel, the right to
present witnesses in my own behalf and to
compel the attendance of those witnesses, the
right to confront the witnesses against me,
the right to require the State to prove its
case against me beyond a reasonable doubt and,
for purposes of this plea hearing, my right
understand that if I am not a citizen of the
United States that this plea may subject me to
deportation. I also understand that by
entering this plea I give up the right to
appeal all matters relating to the judgement,
including the issue of guilt or innocence.
See Resp. Ex. B, Plea of Guilty and Negotiated Sentence. Given the
record, Nazario understood that, if he proceeded to trial, the
State would have been required to prove all the elements of the
offenses beyond a reasonable doubt. Nevertheless, having been
informed of his constitutional rights, he voluntarily waived his
right to require the State to present that proof at trial, and
instead entered a negotiated plea of guilty to the charges.
Moreover, Nazario’s assertion that there was no factual basis for
the guilty plea is unfounded. Upon the parties’ stipulation to the
factual basis, see Plea Tr. at 6, the court found “there’s a
factual basis for entry of the plea,” id. at 11. As noted by the
post-conviction court, see Resp. Ex. I at 3 n.1, “the detailed
narrative” in the arrest and booking report supports counsel’s
alleged statement to Nazario that the State had sufficient evidence
against him to proceed to trial on the three counts, see Resp. Ex.
I, attached Ex. D, Arrest and Booking Report. Moreover, at the plea
hearing, Nazario affirmed that no one had forced him or threatened
him or promised him anything in exchange for his guilty plea. Plea
Tr. at 7. He affirmed that he was entering a plea of guilty because
he was guilty of the charges. Id. at 8.
counsel, Nazario has not shown prejudice. He has not shown a
“reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.”
Hill, 474 U.S. at 59. As part of the plea agreement, the State
agreed to a term of imprisonment of seven years for count one, a
term of imprisonment of five years for count two, and seventy-three
days in the county jail (with time served) for count three, such
terms to run concurrently. Resp. Ex. B; Plea Tr. at 5-6. If Nazario
had proceeded to trial, and the jury had found him guilty of the
offenses, he would have faced a possible term of imprisonment of
fifteen years for count one, a second degree felony.2 As such, the
ineffectiveness claim is without merit since he has shown neither
deficient performance nor resulting prejudice. Accordingly, Nazario
is not entitled to federal habeas relief on this ineffectiveness
See Fla. Stat. § 316.1935(3)(a); Lambert v. State, 170 So.3d
74, 75 n.1 (Fla. 1st DCA 2015) (stating that aggravated fleeing or
attempting to elude a law enforcement officer is a second-degree
felony punishable by up to fifteen years in prison).
relating to the state collateral proceeding, such challenges do not
state a basis for federal habeas relief. The Eleventh Circuit Court
proceedings do not provide a basis for habeas relief.” Carroll v.
Sec’y, Dep’t of Corr., 574 F.3d 1354, 1365 (11th Cir. 2009)
“The reasoning behind this well-established
principle is straightforward: a challenge to a state collateral
proceeding does not undermine the legality of the detention or
imprisonment--i.e., the conviction itself--and thus habeas relief
is not an appropriate remedy.” Id. (citations omitted).
VIII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Nazario seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Nazario “must demonstrate that reasonable
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
demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
If Nazario appeals the denial of the Petition, the Court
denies a certificate of appealability. 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.
The Clerk of the Court is directed to close this case and
terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
Javier Ivan Nazario III, FDOC #304298
Counsel of Record
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