Sellers v. Secretary, Department of Corrections et al
Filing
23
ORDER denying 9 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 7/11/2016. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DANNY V. SELLERS,
Petitioner,
vs.
Case No. 3:13-cv-1497-J-39MCR
SECRETARY, DOC, et al.,
Respondents.
ORDER
I.
STATUS
Petitioner Danny V. Sellers, an inmate of the Florida penal
system, challenges a 2008 (Duval County) conviction for accessory
after the fact and aggravated assault.
He filed a Petition Under
28 U.S.C. § 2254 by a Person in Custody Pursuant to a State Court
Judgement (Petition) (Doc. 1).
He is proceeding on an Amended
Petition (Doc. 9) and is represented by counsel. He also relies on
a Memorandum of Law and Fact Supporting Amended Petition for Writ
of Habeas Corpus and an Appendix of Exhibits (Doc. 10).
three grounds in the Amended Petition.
He raises
The Court will address
these grounds, see Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.
1992), but no evidentiary proceedings are required in this Court.
Respondents filed an Answer in Response to Order to Show Cause
(Response) (Doc. 20).
In support of their Response, they provide
an Index to Appendix (Exhibits) (Doc. 20-1).1
1
Petitioner filed a
The Court hereinafter refers to the documents contained in
the Appendix as "Ex." Where provided, the page numbers referenced
Reply to the State's Response to the Petition for Writ of Habeas
Corpus (Doc. 21).
See Order (Doc. 13).
He also filed a Notice of
Filing Supplemental Authority in Support of the Petition for Writ
of Habeas Corpus (Doc. 22).
II.
STANDARD OF REVIEW
The Court will analyze the claims pursuant to 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 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.
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).
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. Also, the Court will reference the
page numbers assigned by the electronic docketing system where
applicable.
- 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.
PROCEDURAL HISTORY
To provide historical context to Petitioner's three grounds
for habeas relief, the Court provides a summary of the state
criminal case.
Petitioner was charged by an amended information
with accessory after the fact, possession of a firearm by a
- 4 -
convicted
felon,
attempted
first
degree
murder,
shooting
or
throwing deadly missiles, tampering with evidence, and aggravated
assault.
Ex. A at 87-88.
The state filed a Notice of Intent to
Classify Defendant as an Habitual Felony Offender. Id. at 109-110.
On
July
25,
2006,
Negotiated Sentence.
Petitioner
entered
Ex. D at 633-35.
a
Plea
of
Guilty
and
The terms included a plea
of guilty to counts one and six, accessory after the fact and
aggravated assault, with the sentences to run concurrently and not
total more than twenty years in prison, nor less than sixty-two
months in prison.
As
a
Id. at 633.
condition
of
his
plea,
Petitioner
agreed
following:
I agree to give truthful testimony against any
and/or all of the listed co-defendants in the
Picket Fence Homicide case and any and/or all
defendants charged in cases that I provided
substantial assistance on for law enforcement,
at any lawful proceeding, including any
hearing,
statement,
deposition
and/or
trial(s). I further agree to the following as
additional conditions of my plea: If released
from custody I understand that I must make
weekly telephone and/or personal contact with
the lead detective assigned to my case or
cases; I waive my right to withdraw this plea;
I waive the 60 day time limit contained in
Florida
Rules
of
Criminal
Procedure
3.170(g)(2)(A); I agree that all sworn
statements given by me may be used against me
in Court. I further understand that I may be
sentenced up to 30 years FSP should I fail to
give truthful testimony if called by either
the State or Defense. I understand that if I
fail to appear for any required court date
and/or if I am arrested for any new crime that
is supported by a finding of probable cause,
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to
the
my plea stands but the negotiated sentence
does not and I may be sentenced to any lawful
sentence which includes up to 30 years FSP. I
admit that there is a factual basis for the
charges to which I am pleading, and I agree
that the Court may rely on the statements
contained in the record provided during
discovery, including police reports and sworn
statements, in determining this factual basis.
Ex. D at 633 (footnotes omitted).
In addition to Petitioner, the
defense attorney, the prosecutor, and the judge signed the plea
form.
Id. at 635.
On August 9, 2006, the court swore Petitioner in after defense
counsel announced that the state agreed to nol pros four counts,
allowing the Petitioner to plead to counts one and six.
Transcript at 699.
Ex. D,
The agreement was described as allowing
Petitioner to be sentenced "to somewhere between 62 months Florida
Sate Prison, which is the guidelines, low end of the guidelines, up
to 20 years Florida State Prison."
Id. at 700.
The Court noted
that count six is a third degree felony, punishable by up to five
years in prison, and count one is a first degree felony.
Id.
The
prosecutor notified the Court that Petitioner "is actually eligible
as a habitual offender classification for both counts[.]" Id.
Defense counsel stated: "[p]art of the agreement is if Mr.
Sellers does make bond or is ROR'ed, if he is re-arrested or if he
fails to appear, he would be facing 30 years Florida State Prison."
Id. at 700-701. The court proceeded to swear Petitioner in and ask
him a series of questions.
Id. at 701.
The first thing the court
asked Petitioner was whether he was able to hear and understand
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everything his counsel just stated.
affirmatively.
Id.
Id.
Petitioner responded
The court then explained that Petitioner's
counsel had entered guilty pleas on his behalf to two felonies: (1)
accessory after the fact to murder, described as helping dispose of
a body after the victim had been murdered, punishable by a term of
up to thirty years, and (2) aggravated assault with a deadly
weapon, punishable by a term up to five years.
Id. at 701-702.
The court repeated the terms of the plea agreement, noting the
agreement of a term with a minimum of sixty-two months with a range
up to twenty years.
Id. at 702.
Petitioner confirmed that he agreed to plead guilty and the
pleas were entered with his knowledge and consent.
Id.
The court
advised Petitioner of the rights he was giving up by pleading to
the offenses.
understood.
Id. at 702-703.
Id. at 703.
Petitioner responded that he
Petitioner responded affirmatively that
he was pleading guilty because he believed it to be in his best
interest.
Id.
He also stated that no one forced him to plead
guilty against his will.
Id.
Petitioner confirmed that he read
and understood the form and signed it, and that his attorney
explained the form to him.
Id. at 704.
The prosecutor provided the factual basis for the plea:
The state would be prepared to establish
beyond a reasonable doubt that on or about
September 3, 2004, in Duval County, Florida,
this defendant did engage in conduct which
constituted accessory after the fact to
homicide.
Specifically, in assisting the
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concealment of evidence of that homicide, to
wit, the body.
And the two persons charged with that
homicide are Lavario Ray and Demontreo Glee.
As to the 6th count, Your Honor, the
state would be prepared to establish beyond a
reasonable doubt that on July 5th, 2005, in
Duval County, Florida, this defendant did
threaten Leon Shoeman to do violence with him
by pointing a gun at him.
And that was
confirmed by the deposition testimony of Mr.
Shoeman.
Id. at 704-705.
Defense counsel announced that the defense stipulated as to
count one and had no objection as to count six.
Petitioner
stated
he
had
no
complaints
about
Id. at 705.
his
counsel's
representation, and confirmed that counsel had done everything he
had asked him to do.
Id.
Petitioner also stated his counsel had
not done anything Petitioner considered to be improper.
Id. at
706.
The court found a factual basis for both pleas, found that
Petitioner freely and voluntarily entered his guilty pleas "with a
full understanding of the nature of the charges, the consequences
of the plea and the maximum possible sentence herein"
court accepted the pleas.
Id.
Id.
The
The state confirmed that it was not
seeking habitual offender status.
Id. at 706-707.
Petitioner's counsel presented an oral motion to reduce bond.
Id. at 707.
He explained that Petitioner pled to accessory after
the fact, "which basically consisted of helping another individual
- 8 -
put a body in the trunk."
Id. at 707-708.
Counsel notified the
Court that Petitioner cooperated with the state.
Id. at 708.
Counsel then reiterated that the terms of the plea agreement
included the following: if Petitioner "is rearrested or if he fails
to appear, he is looking at 30 years in Florida State Prison."
Id.
Counsel continued, "[a]nd [Petitioner] has been assured that that
is a likelihood should those things occur."
Id.
Defense counsel
asked the Court to take into consideration the agreement that
Petitioner would be facing substantially more time if he absconded
or re-offended when reviewing Petitioner's request to reduce his
bond.
Id. at 709.
The state announced that it would not take a
formal position on the request to reduce bond.
The
court
denied
the
request
to
reduce
bond,
Id. at 709-710.
but
left
open
consideration of a request for bond with agreement of the state.
Id. at 712-713.
Petitioner was released on bond, and a capias for his arrest
issued.
Ex. D at 36.
The police completed an incident report
concerning an August 20, 2008 stalking incident with a credible
threat to life or injury.
Id. at 639.
When Petitioner was
apprehended, he was found to be in possession of marijuana and pled
guilty in Case No. 16-2008-MM-23029.
Ex. E at 7.
On October 7, 2008, the sentencing judge immediately mentioned
he had seen a general offense report which concerned an arrest for
aggravated stalking, but he had not seen the arrest docket for it.
Ex. E at 6.
The state responded that the arrest docket was
- 9 -
essentially the same as the incident report, and that the arresting
officers were present.
Id.
The court told the prosecutor that he
wanted to hear from the officers. Id. The prosecutor notified the
court that he intended to publish the phone calls which led to the
aggravated stalking charge.
Id.
The prosecutor also notified the
court that Petitioner pled guilty to possession of marijuana the
week prior to his sentencing.
Id. at 7.
A number of witnesses took the stand, including Detective S.
Strawn, who testified that Petitioner was required to report on a
weekly basis, he complied until April 2, 2007, and then he failed
to make his weekly reports.
Id. at 15.
On May 2, 2007, Detective
Strawn contacted the prosecutor to notify him of Petitioner's
failure to report, and then Petitioner called her on May 4, 2007,
July 14, 2007, and over a year later on August 14, 2008.
Id. at
15-16.
In addition, Detective D. Sosnowski testified concerning the
recorded
phone
calls
that
were
the
basis
for
the
arrest
of
Petitioner on the charge of aggravated stalking. Id. at 24. After
Petitioner provided a voice exemplar, the detective identified
Petitioner's voice as the male voice on the recording.
26.
The prosecutor played the tape for the court.
Id. at 25Id.
On the
tape, Petitioner says "[n]ow I seen [sic] you [Ms. Shawntrell
Tinsley, the victim] again."
car here."
Id.
Id. at 33.
He proclaims "I see your
Along with other rather threatening remarks, he
states that he still wants to kill her but he just does not want to
- 10 -
do it.
Id. at 38.
Petitioner asks Ms. Tinsley who is she going to
call, "[a]ll them Ghost Busters[.]" Id. at 39.
Detective Sosnowski further testified that independent of the
capias,
Petitioner
stalking.
was
Id. at 45.
going
to
be
arrested
for
aggravated
The detective then stated that Petitioner
was arrested for aggravated stalking.
Id.
He explained the
finding of marijuana was incident to Petitioner's arrest.
Id. at
45-46.
The judge said he was more concerned about the fact that
Petitioner "was in fact somehow orbiting or cruising around the
woman's place of employment" rather than any particular words that
Petitioner expressed on the tape.
Id. at 119.
After hearing
argument, the court found the following:
You are apparently on intimate terms with
killers.
You are –- if not smoking pot,
you're selling marijuana or you're holding
marijuana for your friends.
I do find probable cause to believe that
you committed the offense of stalking. I do
find more than probable cause to believe that
you committed the offense of possession of
marijuana. I further find that you failed to
report as directed to your controlling
detective.
What I find when I place all these things
in context is that despite what you told me
about the result of your term in prison, you
have made no significant effort to change your
life.
At a time when you knew, when you
absolutely knew that you had been given an
amazing blessing and opportunity, that you had
found yourself mixed up in a homicide but the
Government had agreed to give you a chance and
to let you out, when you knew that this was
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your chance to demonstrate the kind of a man
that you can be, you made no serious effort to
turn away from the life of disorder and
violence that you had led up to that point and
you continued in the same vein.
Id. at 137-38.
The court sentenced Petitioner to five years on count six and
thirty years on count one, to run concurrently.
Id. at 139.
court entered the judgment and sentence on October 7, 2008.
at 659-64.
Petitioner moved to withdraw his plea.2
The
Ex. D
Id. at 683-95.
He argued that the trial court breached the plea agreement, the
trial
judge
failed
to
disqualify
himself
after
an
ex
parte
communication, the defense attorney provided ineffective assistance
of counsel by misadvising Petitioner that the court would be
lenient in sentencing him, and defense counsel provided ineffective
assistance
by
coercing
Petitioner
disqualification of the trial judge.
into
waiving
the
issue
of
Id. at 684.
On May, 6, 2009, after conducting a hearing on May 5, 2009,
the circuit court entered an order denying the amended motion to
withdraw the plea after sentencing.
Ex. F at 1-73.
specific findings of fact and conclusions of law.
The court made
Id. at 1-2.
With regard to the alleged breach of the written plea agreement,
the court noted that Petitioner pled guilty to possession of
marijuana and probable cause was found that Petitioner committed
2
The parties did not provide the Court with a copy of the
February 5, 2009, Amended Motion to Withdraw Plea After Sentencing.
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the offense of aggravated stalking.
Id. at 1.
Furthermore, the
circuit court found "Defendant's sentence of 30 years was expressly
contemplated on the first page of the plea agreement should
probable cause for any new charges be found."
Id.
With respect to
the court's failure to disqualify itself, the circuit judge found
the motion moot as it was directed at the judge's predecessor who
was administratively reassigned on January 1, 2009.
Id. at 2.
In addressing the claim of ineffective assistance of counsel,
the
circuit
court
said
that
trial
counsel
produced
an
acknowledgment by Petitioner that he understood and agreed to waive
the filing of a motion seeking disqualification of the previous
judge. Id. The circuit court also found that previous counsel was
very experienced and provided testimony that he fully explained the
content and nature of his advice to Petitioner.
Id.
Finally, the
circuit court related that previous counsel and the assistant state
attorney both advised that the sentencing is the subject of an
appeal.
Id.
The circuit court concluded that Petitioner "failed
to demonstrate manifest injustice would occur if he were not
allowed to withdraw his plea or that previous counsel failed to
provide effective assistance of counsel."
Petitioner appealed.
Petitioner replied.
Ex. G.
Ex. I.
Id.
The state answered, Ex. H, and
On February 17, 2010, the First
District Court of Appeal affirmed per curiam.
Ex. J.
On January 21, 2011, pursuant to the mailbox rule, Petitioner
filed a Petition for Writ of Habeas Corpus alleging ineffective
- 13 -
assistance of appellate counsel.
Ex. K.
In his petition, he
claimed his appellate counsel was ineffective for failing to
supplement the record on appeal with the transcript of the probable
cause hearing for the aggravated stalking charge. Id. On March 4,
2011, the First District Court of Appeal per curiam denied the
petition on its merits.
Ex. L.
Petitioner moved for rehearing,
Ex. M, and the First District Court of Appeal denied rehearing on
April 15, 2011.
Ex. N.
On April 27, 2011, pursuant to the mailbox rule, Petitioner
filed a Rule 3.850 motion in the circuit court.
and supplemented the motion.
motion.
Id. at 132-82.
183-257.
Id.
He amended
The circuit court denied the
Petitioner moved for rehearing.
The court denied rehearing.
appealed.
Ex. O.
Id. at 269; Ex. Q.
would not file an answer.
Id. at 267-68.
Ex. P at
Petitioner
The state filed a notice that it
Ex. R.
The First District Court of
Appeal, on September 10, 2013, per curiam affirmed.
Petitioner moved for rehearing and written opinion.
Ex. S.
Ex. T.
On
October 21, 2013, the First District Court of Appeal denied the
motion.
Ex. U.
V.
The mandate issued on November 6, 2013.
Ex. S.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In his first ground, Petitioner claims that the trial court
violated due process of law in determining that Petitioner had
breached the plea agreement terms, in denying the motion to
withdraw the plea, and in relying on illegal considerations in
- 14 -
making its determination to impose the maximum possible sentence.
Amended
Petition
at
5.
Respondents
concede
that
Petitioner
exhausted these claims by raising them on direct appeal.
Response
at 22.
As
noted
by
Respondents,
there
is
a
requirement
that
competent, substantial evidence must be behind the trial court's
finding that Petitioner breached the terms of his plea agreement.
Response at 23-24.
See Neeld v. State, 977 So.2d 740, 745 (Fla.
2nd DCA Mar. 26, 2008).
state
must
"present
In order to make this type of finding, the
evidence
preponderance of the evidence."
establishing
the
breach
by
the
Id.
At sentencing, the state met its burden.
Not only did the
court hear from the officers, the court listened to the recordings
of the underlying phone calls supporting the aggravating stalking
charge and arrest.
Also of import, the state notified the court
that Petitioner pled guilty to possession of marijuana the week
prior to his sentencing.
Also, the court heard testimony from a
detective that Petitioner failed to report on a weekly basis for
over a year.
After hearing the testimony and listening to the
tapes, the court found probable cause to believe that Petitioner
committed the offense of stalking and the offense of possession of
marijuana, and he failed to report.
Petitioner argues that the marijuana conviction should not be
considered as it was later overturned.
Assuming
arguendo
that
the
marijuana
- 15 -
Amended Petition at 9.
conviction
may
not
be
considered to be part of this calculation, the state presented
other competent, substantial evidence that Petitioner breached the
terms of his plea agreement at the sentencing proceeding.
See
Ingmire v. State, 9 So.3d 1278, 1281-82 (Fla. 2nd DCA May 6, 2009)
(asking whether there is competent, substantial evidence to support
the finding).
In this instance, the state submitted evidence
establishing the breach by a preponderance of the evidence.
Petitioner is not entitled to habeas relief.
Deference under
AEDPA should be given to the state court's decision.
Petitioner
raised the issue on appeal, and the appellate court affirmed.
The
state court's adjudication of this claim is not contrary to or an
unreasonable application of clearly established federal law, and
was not based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.
Petitioner also claims he was deprived of due process of law
by the trial court's rejection of his motion to withdraw his plea
post sentencing.
Since his sentence had already been imposed, in
order to prevail on his motion, Petitioner had to demonstrate "a
manifest injustice requiring correction."
State v. Partlow, 840
So.2d 1040, 1042 (citing Lopez v. State, 536 So.2d 226, 229 Fla.
1988)).
Upon review of the order denying the amended motion to
withdraw the plea after sentencing, the court addressed the motion,
applied the appropriate standard, and denied the requested relief.
Ex. F at 1-2.
The court first noted the finding of probable cause
for the aggravated stalking offense and the fact that Petitioner
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pled guilty to possession of marijuana.
In addition, the court
recognized that the sentence of thirty years was expressly provided
for and contemplated on the first page of the plea agreement.
Id.
at 1.
In addressing the claim of ineffective assistance of counsel,
the court stated that counsel produced a document showing that
Petitioner agreed to waive the issue of disqualification of the
previous judge, and the court recognized that counsel was very
experienced and provided testimony that he fully explained the
content and nature of his advice to Petitioner.
such,
the
assistance.
court
found
counsel
did
not
Id. at 2.
provide
As
ineffective
Finally, the court held that Petitioner failed to
demonstrate manifest injustice would occur if the court did not
allow him to withdraw his plea.
Id.
Upon review, not only did the plea agreement clearly state
that Petitioner faced a sentence of up to thirty years if he was
arrested for any new crime supported by a finding of probable
cause, he was repeatedly reminded of that fact during the plea
proceeding.
Petitioner signed the written Plea of Guilty and
Negotiated Sentence, testified that he read and understood the
form, and that his attorney explained it to him.
Even during the
request for reduction of bond, defense counsel reiterated that if
Petitioner were rearrested, he would be looking at thirty years in
prison, and argued that this would be a significant factor in
deterring Petitioner from absconding or re-offending.
- 17 -
Simply, Petitioner's thirty-year sentence was not outside the
terms of the plea agreement. The Court finds that Norvil v. State,
No.
SC14-746,
2016
WL
1700529,
at
*3
(Fla.
Apr.
28,
2016)
(establishing a bright line rule for sentencing purposes that a
trial court may not consider a subsequent arrest without conviction
during sentencing), is inapplicable in this situation, where the
terms of the plea agreement itself stated that any subsequent
arrest with a finding of probable cause would be considered by the
court, and the negotiated sentence of a maximum of twenty years
would not stand and the sentencing range would be up to thirty
years in prison if there was an arrest with supporting probable
cause.
Unlike the case at bar, in Norvil, the defendant had
entered an open plea to the court, and before sentencing the state
asked the court to consider a new charge.
Id. at *1.
The open
plea circumstance referenced in Norvil is certainly distinguishable
from a negotiated plea agreement with the condition that the
defendant would face thirty years if specified events occurred upon
release on bond.3
Petitioner concedes that the judge correctly determined that
the motion to disqualify was moot as the predecessor judge was
3
In Florida, a trial court may consider prior arrests not
resulting in convictions at sentencing if the defendant is given
the opportunity to explain or offer evidence concerning these prior
arrests. Williams v. State, No. 1D15-1923, 2016 WL 3151778, at *2
n.4 (Fla. 1st DCA June 7, 2016) (per curiam) (Has Not Been Released
for Publication in the Permanent Law Reports) (relying on Crosby v.
State, 429 So.2d 421, 422 (Fla. 1st DCA 1983)).
- 18 -
administratively reassigned.
Amended Petition at 10.
Therefore,
this issue will not be addressed.
Petitioner's
claim
that
his
counsel
was
ineffective
for
misadvising Petitioner that the court would be lenient was also
rejected by the circuit court.
First District Court of Appeal.
That decision was affirmed by the
At the hearing on the motion to
withdraw the plea, defense counsel Terrell Anderson testified that
he told Petitioner it was possible that Petitioner may get the
bottom of the plea agreement, he never made any guarantees that
Petitioner would get a lenient sentence, and he advised his client
that if he violated the terms of the agreement, the plea would
stand but the agreement to limit the sentence at twenty years would
no longer be in effect.
Ex. F at 37-38.
Counsel reiterated that
he never made any guarantees that there would be leniency by the
court.
Id. at 38.
Counsel testified that he did not believe there
was any manifest injustice in the entry of the plea.
Id. at 43.
Also of note, at the hearing, Petitioner testified that his counsel
told him Judge Merrett "would probably be lenient."
Id. at 58
(emphasis added).
Deference under AEDPA should be given to the state court's
decision.
Petitioner raised the issue, and the appellate court
affirmed.
The state court's adjudication of this claim is not
contrary to or an unreasonable application of constitutional law,
or based on an unreasonable determination of the facts. Therefore,
Petitioner is not entitled to habeas relief on this ground.
- 19 -
Petitioner
also
claims
that
he
was
induced
into
being
sentenced by Judge Merrett because counsel coerced him into not
filing a motion to recuse Judge Merrett, even though his attorney
knew
that
the
judge
had
been
the
recipient
of
an
ex
parte
communication leading to the issuance of a capias for Petitioner's
arrest.
Amended Petition at 10.
At the hearing on the motion to
withdraw the plea, Mr. Anderson testified that this assertion "is
completely incorrect."
Petitioner
that
he
Ex. F at 29.
believed
there
He explained that he told
had
been
an
improper
communication between an officer and the trial judge, and that
Petitioner had the "absolute choice and right to either let Judge
Merrett handle the case for sentencing or to have [counsel] file a
motion to recuse." Id. Counsel stated that he further advised his
client that if he did file the motion to recuse, Judge Merrett
would be required to grant it.
Id.
Counsel told Petitioner he did
not know who Petitioner would get for a replacement judge.
Id.
Counsel testified that he created a document, allowing Petitioner
to either choose for counsel to file a motion to recuse, or not.
Id. at 17.
Counsel attested that he never makes this type of
decision for a defendant.
Id.
this for almost thirty years.
He explained that he had been doing
Id.
In his Amended Petition, Petitioner suggests it is unclear why
his attorney failed to file to motion to recuse given the gravity
of the consequences.
Amended Petition at 11.
At the motion to
withdraw plea hearing, Petitioner stated he believed he should not
- 20 -
have been directed by his counsel to make a choice to file the
motion
to
recuse
or
not,
and
automatically recused himself.
Judge
Merrett
Id. at 64.
should
have
Of course, in this
instance, Judge Merrett did not "automatically" recuse himself, and
counsel asked Petitioner to decide whether or not he wanted to
continue with Judge Merrett.
Counsel explained that based on his
experience of almost thirty years, if he had filed the motion to
recuse the judge without his client's authorization, his client
would have complained that he never wanted the motion to recuse the
judge filed.
The court, in denying the motion to withdraw the plea,
recognized counsel's experience, found that counsel fully explained
the choices, and produced the document that Petitioner signed
stating he understood and agreed to waive moving to disqualify the
trial judge.
Ex. F at 2.
The First District Court of Appeal
affirmed the decision of the trial court.
The state court's
adjudication of this claim is not contrary to or an unreasonable
application
of
federal
constitutional
law,
or
based
on
an
unreasonable determination of the facts.
Finally,
Petitioner
claims
the
court
relied
on
illegal
considerations in making its determination to impose the maximum
possible sentence.
Again, Petitioner argues that the sentence of
thirty years in prison was outside the parameters set forth in the
plea agreement.
circuit
judge
Amended Petition at 12.
found
that
the sentence
- 21 -
As noted previously, the
of
thirty
years
"was
expressly contemplated on the first page of the plea agreement
should probable cause for any new charges be found."
Ex. F at 1.
Upon review of the written plea agreement, it clearly stated that
Petitioner may face a sentence of up to thirty years if he does not
comply with the terms of the plea agreement.
As previously noted, the state submitted evidence establishing
the breach by a preponderance of the evidence.
Although the
sentencing court mentioned the fact that Petitioner was being
brought down for moving a body, described as not the worst thing
Petitioner ever did, there was a wealth of information that
Petitioner had continued to lead a life of crime and disorder after
he was released from prison. However, the impact of this testimony
was tempered by the testimony of Petitioner's sister, his son, and
his mother, describing Petitioner as a good family man, sincerely
loved and cherished by his family.
The
sentencing
court,
recognizing
the
dichotomy
between
Petitioner, the family man, and Petitioner, the man of the world,
said:
Mr. Sellers, I received substantial and
credible evidence that you are a wonderful
family man, that you are in many circumstances
kind, that you have been at times selfsacrificing in the interest of others who
depend on you.
But the problem with that
evidence is that a man's character is best
defined as what he does when the people he
respects are not looking.
Now, I've reviewed your record, and I
believe that unfortunately the prosecutor was
too kind to you by half. I find an ongoing
- 22 -
history of violence, a few convictions for
misdemeanor violence, almost all of them
broken down from offenses involving gunplay.
I find probable cause and then some to
believe that you have a history of and an
inclination toward the abuse of firearms, a
disregard for the dignity of other human
beings, and a disregard for the safety of
other human beings.[4]
. . . .
But when I consider all of this evidence
and when I place it into context with your
record, I see that you have a wife and
children but you're spending your time
You're
shacking up with your godsister.[5]
threatening her. You are stalking her.
You are not just hanging out in clubs.
You're hanging out back in the same club where
you pointed a pistol at a police officer[6] and
were found with a pistol in your pocket.
. . . .
4
Of note, the state filed a Notice of Intent to Classify
Defendant as an Habitual Felony Offender, referencing felony
convictions for aggravated assault and sale or delivery of cocaine.
Ex. A at 109-10.
5
The aggravated stalking charge arose from the tapes of the
phone calls between Petitioner and his godsister, Shawntrell
Tinsley, with whom Petitioner had an off-and-on relationship for
years.
6
More accurately, Petitioner pointed a gun at someone else in
a club, but refused to comply with the officer's command to drop
his weapon. Ex. E at 126-27. Apparently the court referenced the
statement made by the prosecutor that Petitioner "drew a gun on a
police officer[,]" Ex. E at 126, but the court actually brought the
prosecutor's inaccurate statement to his attention, and the
prosecutor responded by clarifying his statement and imparted that
Petitioner pulled a gun on another patron, which prompted the
officer to shoot Petitioner. Id. at 127.
- 23 -
You are apparently on intimate terms with
killers.
You are –- if not smoking pot,
you're selling marijuana or you're holding
marijuana for your friends.
Ex. E at 136-37.
With respect to the breach of the plea agreement, the court
found the following:
I do find probable cause to believe that
you committed the offense of stalking. I do
find more than probable cause to believe that
you committed the offense of possession of
marijuana. I further find that you failed to
report as directed to your controlling
detective.
Id. at 137-38.
In preparing to announce sentence, the court opined:
Now, based on what I have learned about
you, this case might be likened to the case of
Al Capone.
Al Capone was responsible for
certainly dozens, maybe even hundreds of
murders, but Al Capone was finally brought
down and packed away to prison for tax
evasion.
You are being brought down
permanently for moving a body, which is not
the worst thing you ever did.
Id. at 139.
With respect to his first ground, Petitioner has not shown
that the circuit court abused its discretion.
Moreover, in
determining that Petitioner breached the plea agreement, denying
the amended motion to withdraw the plea, and in imposing the
thirty-year prison sentence, the circuit court's decisions were not
so arbitrary and fundamentally unfair that they violated the
constitutional
principle
of
due
process.
- 24 -
Most
importantly,
Petitioner has not established that the state court's decision
denying this claim was contrary to or an unreasonable application
of
federal
constitutional
determination of the facts.
B.
law,
or
based
on
an
unreasonable
Ground one is due to be denied.
Ground Two
In his second ground, Petitioner claims he received the
ineffective assistance of appellate counsel because his attorney
failed
to
obtain
the
preliminary
hearing
transcript
for
the
aggravated stalking charge and supplement the record with that
transcript.
Amended Petition at 14.
claim in his state habeas petition.
Petitioner exhausted this
Ex. K.
The First District
Court of Appeal denied the petition alleging ineffective assistance
of appellate counsel.
Ex. L.
Respondents concede that Petitioner
exhausted his state court remedies on this ground. Response at 48.
Petitioner has failed to show that the presence of the
transcript on direct appeal would have changed the outcome of the
appeal.
Indeed, the record shows that after hearing the tape
recordings and testimony, the trial court made its own findings at
the sentencing proceeding that there was probable cause to believe
that Petitioner committed the crimes of possession of marijuana and
stalking.
Additionally, the court found Petitioner failed to
report. Furthermore, the state submitted evidence establishing the
breach by a preponderance of the evidence.
In addressing the claim of ineffective assistance of appellate
counsel, this Court must apply the Strickland test.
- 25 -
Appellate
counsel raised three substantial grounds on direct appeal: (1) the
trial
court
erred
in
finding
Petitioner
violated
the
plea
agreement; (2) the trial court erred in denying the motion to
withdraw the plea; and (3) the sentencing court relied on illegal
considerations in determining the length of sentence.
As noted by
Respondents, appellate counsel need not raise every conceivable
issue on direct appeal.
Appellate
supplement
the
See Response at 52.
counsel
record
was
on
not
appeal
ineffective
with
the
preliminary hearing from the stalking charge.
for
failing
transcript
of
to
the
Her performance was
not so deficient that it fell below the objective standard of
reasonableness, and Petitioner has failed to satisfy the first
prong of Strickland.
Also, under the circumstances at bar,
Petitioner has not shown that there is a reasonable probability
sufficient
to
undermine
confidence
in
the
outcome.
Thus,
Petitioner has failed to satisfy the second prong of the Strickland
test by showing that there is a reasonable probability that, but
for appellate counsel's deficient performance, the outcome of the
appeal would have been different. As such, the prejudice prong has
not been met.
Ground two is due to be denied.
C.
In
his
third
ground,
Ground Three
Petitioner
claims
he
received
the
ineffective assistance of counsel during the plea and sentencing
proceedings when counsel allowed a partial judge to impose sentence
that exceeded the range in the plea agreement and/or misadvised
- 26 -
Petitioner as to the consequences of his guilty plea, resulting in
an involuntary plea.
Amended Petition at 16-17.
In support of
this ground, Petitioner claims his attorney was ineffective for
misadvising him as to the maximum sentencing exposure, for failing
to advise him of the elements of the offense of accessory after the
fact, and for failing to advise him that he could and should move
to recuse the sentencing judge from the case.
Id. at 18-19.
Petitioner claims that but for this misadvice, he would not have
pleaded guilty and would have proceeded to trial.
Id. at 19.
Respondents concede that Petitioner exhausted his state court
remedies.
Response at 53.
The two-pronged Strickland standard for reviewing claims of
ineffective assistance of counsel is applicable to this ground. 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.
Although the grounds were more expressly couched in terms of
claims of ineffective assistance of counsel in the Rule 3.850
motion, in denying the post conviction motion, the circuit court
- 27 -
found that the grounds had been addressed on direct appeal.7
The
court explained:
Defendant previously challenged the validity
and voluntariness of his plea via timely filed
Motions to Withdraw Plea After Sentencing,
which were ultimately denied by this Court.
(Exs. D-F.)
Therefore, the First District
Court of Appeal's affirmance of Defendant's
judgments and sentences included a review of
the
legality
and
the
voluntariness
of
Defendant's
plea,
plea
agreement,
and
sentence.
(Ex. G.) Fla. R. App. P.
9.140(b)(2)(A)(ii).
As such, the issues
raised in the instant Motions have already
been addressed on appeal and the instant
Motions are, accordingly, denied.
Ex. O at 134.
curiam.
The First District Court of Appeal affirmed per
Ex. S.
In order for a guilty plea to be constitutionally valid, it
must be made knowingly, intelligently, and voluntarily.
Burton, 26 F.3d 1093, 1096 (11th Cir. 1994).
Pardue v.
In reviewing
a state
court guilty 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.
7
The Court notes that Petitioner, in his motions to withdraw
his plea, claimed his counsel improperly advised him and provided
ineffective assistance, but the circuit court denied the claim of
ineffective assistance of counsel. See Ex. F at 2.
- 28 -
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 guilty and would have insisted on
going to trial.
With regard to these offenses, the state filed a
notice of intent to classify Petitioner as an habitual felony
offender. As the state court noted, the Petitioner received a very
generous plea offer in exchange for his agreement to testify
truthfully against his co-defendants in the Picket Fence Homicide
case.
The
state
agreed
not
to
pursue
an
habitual
offender
sentence, to nol pros four counts and seek convictions on only two
counts, and to a sentencing range of not more than twenty years and
not less than sixty-two months, if the plea agreement was not
breeched.
Ex. D at 633.
See Ex. F at 39-40 (a habitual offender
sentence, punishable by life).
Of course, there were conditions to this plea.
Not only did
Petitioner have to provide truthful testimony at trials and other
proceedings,
he
had
to
released from custody.
specifically
set
forth
comply
with
additional
Ex. D at 633.
in
the
agreement
conditions
if
These conditions were
and
included
weekly
reporting to the lead detective and not being arrested for any new
crime supported by a finding of probable cause.
- 29 -
Id.
Petitioner
was clearly notified that if he failed to appear for any required
court date and/or if he were arrested for any new crime supported
by a finding of probable cause, his plea would stand but the
negotiated sentence would not, and he "may be sentenced to any
lawful sentence which includes up to thirty 30 years FSP."
Id.
In denying Petitioner's motion to withdraw his plea, the
circuit
court
found
that
his
sentence
of
thirty
years
"was
expressly contemplated on the first page of the plea agreement
should probable cause for any new charges be found."
Ex. F at 1.
When addressing Petitioner's assertion that his attorney failed to
properly advise him regarding the sentence and coerced Petitioner
into waiving the disqualification of the previous judge, the court,
after
noting
that
counsel
was
a
very
experienced
attorney,8
concluded that counsel fully explained the content and nature of
his advice to Petitioner. Id. at 2. Finally, the court determined
that Petitioner failed to demonstrate that his counsel "failed to
provide effective assistance of counsel."
Id.
At the hearing on the motion to withdraw the plea, with regard
to Petitioner's right to recuse the trial judge, Mr. Anderson
8
"When courts are examining the performance of an experienced
trial counsel, the presumption that his conduct was reasonable is
even stronger." Chandler v. United States, 218 F.3d 1305, 1316
(11th Cir. 2000) (en banc), cert. denied, 531 U.S. 1204 (2001); see
Williams v. Head, 185 F.3d 1223, 1229 (11th Cir. 1999) (noting that
"[i]t matters to our analysis" whether the attorney is an
experienced criminal defense attorney), cert. denied, 530 U.S. 1246
(2000). Here, defense counsel had almost thirty years of legal
experience.
- 30 -
testified he first advised Petitioner that there had been what he
considered to be improper, ex parte communications.
Ex. F at 29.
Mr. Anderson said he told Petitioner "he had the absolute choice
and
right
to
either
let
Judge
Merrett
handle
the
sentencing" or to have counsel file a motion to recuse.
case
for
Id.
Mr.
Anderson further advised Petitioner that if he did file a motion to
recuse, the trial judge would be required to grant it.
Id.
He
told Petitioner he did not know who would be the replacement judge.
Id.
Mr. Anderson also told Petitioner that he believed that Judge
Merrett knew that what he had done might not have been proper, as
the judge suggested to counsel that if he wanted a recusal, he
could file a motion.
Id. at 29-30.
Not only did counsel give all of this information and advice,
he actually created a document for Petitioner to acknowledge his
choice.
Id. at 30.
Counsel produced the acknowledgment form
signed by Petitioner stating that he understood and agreed to waive
seeking disqualification of the trial judge.
Id.; Ex. F at 2.
With respect to the question as to whether counsel misadvised
Petitioner that the Court would be lenient in sentencing him within
the plea agreement, counsel said that when Petitioner originally
entered into the plea agreement, counsel advised Petitioner that he
may or might possibly get a sentence at the bottom of the plea
agreement range.
Ex. F at 37.
However, counsel made no promises
or guarantees that Petitioner would be given a light sentence. Id.
at 37-38. Mr. Anderson attested that he advised Petitioner that if
- 31 -
he violated the terms of the plea agreement, that the plea would be
in and the agreement off.
Id.
Petitioner admitted that the plea agreement states that in the
event he either got arrested or did not come to court and testify
or lied, he could get thirty years.
Id. at 54.
Petitioner said he
understood that he had to stay out of trouble, but he felt his
involvement was not substantial enough to receive a term of
imprisonment for thirty years.
Id. at 56.
He said he was told by
counsel that Judge Merrett "would probably be lenient." Id. at 58.
As background, during the plea proceeding, counsel stated,
"[p]art of the agreement is if Mr. Sellers does make bond or is
ROR'ed, if he is re-arrested or if he fails to appear, he would be
facing
30
years
Florida
State
Prison."
Ex.
D
at
700-701.
Reinforcing this information, the court advised Petitioner that the
accessory after the fact charge was a felony punishable by up to
thirty years in prison.
Id. at 702.
Additionally, Petitioner claims he was never advised of the
elements of the crime of accessory after the fact.
Ex. F at 47.
The prosecutor referenced the plea proceeding where the judge
stated that the felony of being an accessory after the fact to
murder was helping dispose of the body after the victim was
murdered.9
9
Id. at 52.
See Ex. D at 701-702.
Petitioner confirmed
After the plea was accepted, Petitioner's counsel described
Petitioner's actions as "helping another individual put a body in
the trunk." Ex. D at 708. At sentencing, Petitioner apologized to
the victim's family and said he knew he was wrong when he helped
- 32 -
that he understood the judge's description of the crime.
702.
Id. at
The prosecutor provided a factual basis for the plea stating
that the state was prepared to establish that on or about September
3, 2004, Petitioner engaged in conduct which constituted accessory
after the fact to homicide, described as "assisting the concealment
of evidence of that homicide, to wit, the body."
Id. at 704-705.
The prosecutor stated that the two persons charged with the
homicide were Lavario Ray and Demontreo Glee.10
Id. at 705.
Also of import, Petitioner signed the plea agreement. In that
agreement, he states that he was advised of the nature of all the
charges against him, the statutory offenses included within such
charges, the range of maximum allowable punishments for each
charge,
all
the
possible
defenses
to
each
circumstances in mitigation of such charges.
charge,
and
Ex. D at 633.
all
It
further states that "I have been advised of all other facts
essential to a full and complete understanding of all offenses with
which I have been charged, and of all offenses to which I am
entering this plea."
Id.
It also contains an entire section
concerning his consultation with counsel.
put the body in the trunk.
10
Id. at 634.
Ex. E at 99.
The Amended Information, in pertinent part, states that
Petitioner, on September 3, 2004, assisted or gave aid to Lavario
Ray and/or Damontrio Glee "by assisting in removing or concealing
evidence of a crime, knowing that Lavario Ray and/or Damontrio Glee
had committed a felony, to wit: Homicide, with the intent that
Lavario Ray and/or Damontrio Glee shall avoid or escape detection,
arrest, trial, or punishment, contrary to the provisions of Section
777.03, Florida Statutes." Ex. A at 87.
- 33 -
At the plea proceeding, Petitioner confirmed that he read and
understood the form "[v]ery much."
Ex. D at 704.
his counsel explained the form to him.
Id.
He stated that
Of note, counsel
stipulated to the factual basis for count one, the accessory
charge.
Id. at 705.
The Court recognizes that solemn declarations in open court
carry a strong presumption of verity.
Indeed, the record shows
that Petitioner pleaded guilty because he wished to do so, fully
apprised that he was facing a maximum penalty of thirty years in
prison if he failed to comply with the plea agreement upon his
release on bond.11 See United States v. Castro, 736 F.3d 1308, 1314
(11th Cir. 2013) (per curiam) (the court was not convinced that the
defendant would have rejected the plea agreement as he avoided
prosecution of numerous offenses and faced a stiff sentence if he
proceeded to trial), cert. denied, 134 S.Ct. 1331 (2014).
Upon review of the record, at the inception of the plea
proceeding,
defense
counsel
announced
that
authorized him to enter a plea of guilty.
his
client
Ex. D at 699.
had
Counsel
explained that the agreement would be a sentence somewhere between
sixty-two months and twenty years in prison, but if Petitioner made
bond or was released and was re-arrested or failed to appear, he
would be facing thirty years in prison.
11
Id. at 700-701.
Petitioner also avoided the habitual offender classification
by accepting the plea.
- 34 -
After
Petitioner
colloquy.
was
Id. at 701.
sworn,
the
court
conducted
a
plea
First, the court inquired as to whether
Petitioner heard and understood his attorney's statements.
Petitioner responded in the affirmative.
Id.
Id.
The court described
the two felonies to which Petitioner was pleading and referenced
the
plea
agreement.
Id.
at
701-702.
The
court
explained
Petitioner was pleading to a accessory after the fact, a felony
punishable by up to thirty years in prison.
Id. at 702.
The court
stated that Petitioner was entering a plea to aggravated assault
punishable by a sentence up to five years in prison.
Id.
The
court mentioned that Petitioner may be classified as a habitual
felony offender.
Id.
The court reiterated the terms of the plea
agreement and the sentencing range. Id. Petitioner responded that
he understood these factors.
Id.
The court advised Petitioner of the rights he was waiving by
entering his plea.
Id. at 702-703.
understood these rights.
Petitioner agreed that he
Id. at 703.
He stated that he had
determined the plea was in his best interest.
Id.
The court
inquired as to whether anyone had forced Petitioner into accepting
the plea.
Id.
Petitioner responded in the negative.
Id.
The
court asked Petitioner if he signed, read, and understood the plea
form.
Id. at 703-704.
Id. at 704.
to him.
Petitioner confirmed that he had done so.
He also confirmed that his counsel explained the form
Id.
- 35 -
At this point, the prosecutor provided a factual basis for the
plea.
Id. at 704-705.
Defense counsel stipulated as to count one
and made no objection to count six.
Id. at 705.
Petitioner stated
he had no complaints about his counsel's representation.
705-706.
Id. at
The court found a factual basis for the plea and
concluded that Petitioner freely and voluntarily entered his guilty
plea with a full understanding of the nature of the charges, the
consequences of the plea, and the maximum possible sentence.
Id.
at 706.
In short, Petitioner stated that he was completely satisfied
with counsel's performance. He confirmed that he had gone over the
plea form in its entirety with his counsel and that counsel had
answered all of his questions.
Petitioner had no questions
concerning the maximum penalty he faced and he stated he understood
his counsel's statements about the plea agreement.
that he was not coerced into entering the plea.
He confirmed
Finally, with
regard to the underlying basis for the charge, no exceptions or
objections were made to the factual basis for the plea.
Based on all of the above and the record before the Court,
Petitioner has failed to show that his counsel's performance was
deficient. Even assuming deficient performance, Petitioner has not
shown prejudice, as Petitioner was facing substantial time.
Thus,
he has not shown that a reasonable probability exists that the
outcome of the proceeding would have been different if his lawyer
- 36 -
had given the assistance that Petitioner has alleged should have
been provided.
Accordingly, Petitioner's ineffectiveness claim is
without merit since he has neither shown deficient performance or
prejudice.
Petitioner is not entitled to relief on ground three of the
Amended Petition, the claim of ineffective assistance of trial
counsel.
Deference, under AEDPA, should be given to the state
court's decisions.
Petitioner raised these issues in his motions
to withdraw his plea after sentencing.
He claimed he received the
ineffective assistance of trial counsel in his Rule 3.850 motion.
The circuit court denied the motions, and the appellate court
affirmed
the
circuit
court's
decisions.
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.
claim
of
ineffective
In sum, ground three, Petitioner's
assistance
of
counsel
resulting
in
an
involuntary plea, is due to be denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Amended Petition (Doc. 9) is DENIED, and this action
is DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment accordingly
and close this case.
- 37 -
3.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.12
has
determined
that
a
certificate
of
Because this Court
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case.
Such termination shall serve as a denial of
the motion.
DONE AND ORDERED at Jacksonville, Florida, this 11th day of
July, 2016.
sa 6/30
c:
Counsel of Record
12
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
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