Williams v. Secretary, Department of Corrections et al
Filing
45
ORDER denying the amended petition 37 , 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 7/19/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LONNIE C. WILLIAMS,
Petitioner,
vs.
Case No. 3:14-cv-64-J-39PDB
SECRETARY, DOC, et al.,
Respondents.
ORDER
I.
STATUS
Petitioner Lonnie C. Williams, an inmate of the Florida penal
system, challenges a 2009 (Duval County) conviction for two counts
of sale or delivery of cocaine.
He filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
proceeding on an Amended Petition (Doc. 37).
grounds in the Amended Petition.
He is
He raises three
The Court previously determined
that it will not consider ground two of the Amended Petition.
Order (Doc. 36 ¶ 1).
See
In light of its previous ruling, the Court
will address the remaining two grounds, see Long v. United States,
626 F.3d 1167, 1169 (11th Cir. 2010) ("The district court must
resolve
all
claims
for
relief
raised
on
collateral
review,
regardless of whether relief is granted or denied.") (citing Clisby
v. Jones,
960 F.2d 925, 936 (11th Cir. 1992) and Rhode v. United
States, 583 F.3d 1289, 1291 (11th Cir. 2009)), but no evidentiary
proceedings are required in this Court.
Respondents filed a Response to Amended Petition for Habeas
Corpus (Response) (Doc. 40).
In support of their Response, they
refer to an Appendix (Doc. 40).1
Petitioner filed a Reply to the
State's Answer to Petitioner's 2254 Petition for Writ of Habeas
Corpus (Reply) (Doc. 42) and a Supplemental Reply to State's Answer
(Doc.
44).
See
Order
(Doc.
5).
Respondents
provide
a
comprehensive rendition of the procedural history of the case, and
it will not be repeated here.
II.
Response at 1-7.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs this Court's review of the Amended Petition; therefore,
this Court's review is highly deferential and certainly greatly
circumscribed.
Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir.
2011), cert. denied, 132 S.Ct. 2727 (2012).
U.S.C. § 2254.
See generally 28
Since AEDPA governs the petition and limits the
scope of this Court's review, the state-court decisions must be
given the benefit of the doubt:
Under
AEDPA,
when
a
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
1
The Court hereinafter refers to the exhibits in the Appendix
as "Ex."
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 -
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). A state court's factual findings
are presumed correct unless rebutted by clear
and convincing evidence.[2] Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th
Cir. 2011). . . .
"It bears repeating that even a strong case
for relief does not mean the state court's
contrary
conclusion
was
unreasonable."
[Harrington v. Richter, 562 U.S. 86, 102
(2011)] (citing Lockyer v. Andrade, 538 U.S.
63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144
(2003)). The Supreme Court has repeatedly
instructed lower federal courts that an
unreasonable application of law requires more
than mere error or even clear error. See,
e.g., Mitchell v. Esparza, 540 U.S. 12, 18,
124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer,
538 U.S. at 75, 123 S.Ct. 1166 ("The gloss of
clear error fails to give proper deference to
state courts by conflating error (even clear
error) with unreasonableness."); Williams v.
Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146
L.Ed.2d
389
(2000)
("[A]n
unreasonable
application of federal law is different from
an incorrect application of federal law.").
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253–54 (11th Cir. 2013),
cert. denied, 135 S.Ct. 67 (2014).
The first step in applying AEDPA deference is to identify the
last state court decision that evaluated the claim on its merits.
Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
2
"This presumption of correctness applies equally to factual
determinations made by the state trial and appellate courts." Pope
v. Sec'y for the Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir.
2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)),
cert. denied, 133 S.Ct. 1625 (2013).
- 3 -
Cir. 2016).3
Regardless of whether the last state court provided
a reasoned opinion, "it may be presumed that the state court
adjudicated
the
claim
on
the
merits
in
the
absence
of
any
indication or state-law procedural principles to the contrary."
Harrington v. Richter, 562 U.S. 86, 99 (2011).
If there is reason
to believe some other explanation for the state court's decision is
more likely, the presumption, in limited circumstances, may be
rebutted.
Richter, 562 U.S. at 99-100 (citing Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991)); see also Johnson v. Williams, 133 S.Ct.
1088, 1096 (2013) (finding the Richter presumption strong, but not
irrebuttable).
If
the
last
state
court's
merit-based
decision
is
unaccompanied by an explanation, the petitioner must show there was
no reasonable basis for the state court to deny relief.
562 U.S. at 98.
Richter,
This is not an easy task; "even a strong case for
relief does not mean the state court's contrary conclusion was
unreasonable."
Id. at 102.
Applying AEDPA deference, it is this
Court's duty to "determine what arguments or theories supported or,
as here, could have supported, the state court's decision;" and
then the Court "must ask whether it is possible fairminded jurists
3
As suggested in Butts v. GDCP Warden, 850 F.3d 1201, 1204
(11th Cir. 2017), in order to avoid any complications if the United
States Supreme Court decides to overturn Eleventh Circuit precedent
as pronounced in Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227 (11th Cir. 2016) (en banc), cert. granted, 137 S.Ct. 1203
(2017), this Court, will employ "the more state-trial-court focused
approach in applying § 2254(d)[,]" where applicable.
- 4 -
could disagree that those arguments or theories are inconsistent
with the holding in a prior decision of this Court." Richter, 562
U.S. at 102.
The § 2254(d) standard is difficult to meet, serving as a
guard against extreme malfunctions in the state criminal process,
but
not
as
a
means
of
error
correction
that
are
adequately
addressed through the state appellate review process.
This high
hurdle to obtain issuance of the writ is overcome if a state
prisoner shows 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."
U.S.
at
103.
See
Ledford
v.
Warden,
Ga.
Richter, 562
Diagnostic
&
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied,
137
S.Ct.
1432
(2017)
(recognizing
the
foundational
principle of the federal system that state courts are considered
adequate
forums
to
seek
vindication
of
federal
rights,
thus
limiting federal habeas relief to extreme malfunctions in the state
system) (quotations and citations omitted).
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.
- 5 -
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,
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
- 6 -
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), report and
recommendation adopted by Bryant v. McNeil, No. 4:09CV22-SPM/WCS,
2011 WL 2434087 (N.D. Fla. June 16, 2011).
IV.
THE PLEA
To provide historical context to Petitioner's remaining two
grounds for habeas relief, the Court provides a brief summary of
the plea proceeding and references the relevant proceedings that
followed. Petitioner was charged by information with two counts of
sale or delivery of cocaine.
Ex. A.
The state filed a Notice of
Intent to Classify Defendant as an Habitual Felony Offender.
B.
Ex.
Petitioner faced a maximum sentence of thirty years as an
habitual offender.
Ex. C.
The week of trial, he tendered an open
plea of guilty to the court.4
Ex. D at 3-4.
4
The state announced
The Plea of Guilty form is signed by the Petitioner, his
counsel, and the judge. Ex. C. It is dated August 17, 2009. Id.
- 7 -
that it was prepared to prove that Petitioner "did sell or deliver
a controlled substance named or described in section 893.13(1)(A)1,
the controlled substance being cocaine."
Id. at 4.
He faced a
minimum sentence of forty months up to fifteen years, and with a
finding of habitual offender status, he faced thirty years in
prison.
Id. at 3.
The state announced that it was seeking the
habitual offender classification.
Id.
This Court first looks to the plea colloquy of August 17,
2009.
was
After being sworn in, Petitioner confirmed that his counsel
prepared
defenses.
for
trial
Id. at 4.
and
they
had
discussed
all
possible
Petitioner acknowledged that his case had
been thoroughly investigated.
Id.
the plea was in his best interest.
He expressed his belief that
Id. at 5.
He stated that no
one had forced him, threatened him, coerced him, or promised him
anything, "other than what's been said on the record," to obtain
the plea.
Id.
Petitioner agreed that he wanted the court to
decide his sentence.
Id.
The court explained that the sentence
could be anything from forty months to thirty years, if the court
determined Petitioner is an habitual offender.
acknowledged this fact.
Id.
Id.
Petitioner
He agreed with the statement that no
one had promised him that a particular sentence would be imposed by
the court.
anything
Id.
that
proceeding.
Petitioner said he was not under the influence of
would
affect
his
Id. at 4-5.
- 8 -
ability
to
understand
the
During the course of the plea colloquy, Petitioner said he
went over the plea form and understood what he read, he could read
and write the English language, he went to the twelfth grade in
school, and he signed the form.
Id. at 6.
The court informed
Petitioner he was giving up certain rights by entered the plea, and
Petitioner acknowledged this fact.
Id.
The court continued: "If
you had wanted to file any motions to dismiss, or motions to
suppress, or if you wanted to do anything at trial to keep
testimony out, once you enter this plea, all that goes out the
window[.]"
Id. at 7.
The court further explained the consequences of entering the
plea: "Mr. Williams, do you realize that after the sentencing
hearing, if I impose a sentence that you don't like, it's more than
you thought you should have gotten, that is not a legal basis to
set aside your plea, do you realize that?"
responded in the affirmative.
Id. at 7.
Petitioner
Id.
After an extended plea colloquy, the court found a factual
basis for the plea.
Id.
The court accepted the plea, finding the
plea freely and voluntarily rendered.
Id. at 4-7.
At the close of
the proceeding, the court reiterated that Petitioner pled straight
up to the court on counts one and two.
confirmed that he pled to both counts.
Id. at 8.
Petitioner
Id.
On September 30, 2009, the court sentenced Petitioner as an
habitual felony offender to concurrent, fifteen-year terms of
- 9 -
imprisonment.
counts.
Ex. E at 4-7.
The court entered judgment on both
Id. at 1-2.
On October 2, 2009 (filed with the clerk on October 5, 2009),
Petitioner filed a pro se Motion to Withdraw Plea.
Ex. F.
He
based the motion on his lack of understanding of the proceedings
and the ineffectiveness of counsel.
Id.
The circuit court
construed the motion to be a Rule 3.850 motion for post conviction
relief and denied it.
Ex. G.
The court relied on Strickland in
rejecting Petitioner's ineffective assistance of counsel claim, and
the court found that the record of the plea dialogue refuted
Petitioner's allegations concerning the plea.
Id. at 1-2.
More
specifically, the court noted that during the plea dialogue,
Petitioner "acknowledged his reasoning for entering the plea,
understood the consequences of his plea and he was satisfied with
his attorney."
Id. at 2.
The court concluded that Petitioner
could "not seek to go behind his sworn testimony[.]" Id.
the court found
Finally,
Petitioner failed to establish error on the part
of counsel or prejudice as required by Strickland.
Id.
The court
notified Petitioner that he had thirty days to take an appeal by
filing a notice of appeal with the clerk.
Id. at 3.
Petitioner
moved for rehearing, and the court denied rehearing on November 24,
2009.
Ex. H; Ex. I. No appeal was taken of the denial of the Rule
3.850 motion.
On March 5, 2010, Petitioner filed a Petition for Writ of
Mandamus in the circuit court.
Ex. J.
- 10 -
On March 23, 2010, the
court entered an order denying the petition, noting that the Motion
to Withdraw Plea was addressed in the court's October 22, 2009
Order Denying Defendant's Motion for Post Conviction Relief.
K.
Petitioner appealed the denial of the petition for writ of
mandamus.5
Ex. L; Ex. M.
On April 21, 2011, the First District
Court of Appeal (1st DCA) affirmed per curiam.
issued on May 17, 2011.
Ex. O.
The mandate
Ex. P.
On August 3, 2011, Petitioner filed a Rule 3.850 motion.
T.
Ex.
Ex.
He submitted an Addendum to Pending 3.850, adding the claim
that counsel was ineffective for advising Petitioner to reject the
state's seven-year plea offer. Ex. U. He included this same claim
in his Third Amended Rule 3.850 motion.
Ex. V.
The circuit court
denied the motions for post conviction relief as being successive
and procedurally barred.
Ex. AA.
had thirty days to appeal.
Id.
The court advised Petitioner he
Petitioner moved for rehearing.
Ex. BB. The court denied rehearing. Ex. CC. Petitioner appealed,
and on October 30, 2013, the 1st DCA affirmed per curiam.
The mandate issued November 26, 2013.
5
Ex. FF.
Ex. GG.
The Notice of Appeal states that Petitioner is appealing
"the order of this [circuit] court rendered March 23, 2010." Ex.
L.
The March 23, 2010 Order is the Order Denying Defendant's
Petition for Writ of Mandamus. Ex. K. He continues, "[t]he order
appealed from is a final order of writ mandamus for the motion to
withdraw plea filed October 5, 2009[.]" Id. Also of note, with
regard to exhaustion, Petitioner references filing mandamus
petitions and appeals therefrom. Amended Petition at 5.
- 11 -
V.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
Petitioner raises the following claim in ground one: "denial
of right to appeal with counsel and to utilize Rule 3.170(1) motion
to
withdraw
plea
in
violation
of
amendments[.]" Amended Petition at 5.
the
5th,
6th,
and
14th
He provides the following
supporting facts:
Within days of sentencing, I filed a
timely Motion to Withdraw Plea pursuant to
Rule 3.170(1) pointing out counsel was
ineffective for advising me to plea and
requested appointment of counsel. The trial
court recharacterized my motion as brought
pursuant to rule 3.850 and denied it as
insufficient.
Had the trial court not
stripped me of my right to appeal, to file my
Rule 3.170(1) Motion, and appointed counsel
based on my continued indigency, I would have
elected to use and exercise these rights and
not used 3.850 on my own.
Id.
In response to the question as to why he did not exhaust his
state remedies, Petitioner said:
I tried to exhaust state remedies but was
denied to appeal with appointed appellate and
3.170(1) counsel. I filed Mandamus Petitions
and Appeals therefrom as well as 3.850 Motions
trying to get my appellate rights restored and
to file a timely 3.170(1) Motion and raised
other grounds I could find on my own and was
denied relief through no fault of my own
without so much as an evidentiary hearing.
Id.
In their Response, Respondents contend that this ground is
unexhausted and procedurally defaulted. In addressing the question
- 12 -
of exhaustion, this Court must ask whether Petitioner's claim was
fairly raised in the state court proceedings:
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).
The doctrine of procedural default requires the following:
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
necessary to preserve the integrity of legal
- 13 -
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, 566 U.S. 1, 9-10 (2012).
Respondents assert that this Court is procedurally barred from
reviewing ground one.
Response at 17-18.
The Court finds that
ground one is unexhausted because Petitioner failed to fairly raise
his claim in the state court system, thus the trial court never
considered the merits of this claim.
See Castille v. Peoples, 489
U.S. 346, 351 (1989) (raising a claim in a procedural context in
which its merits will not be considered does not constitute fair
presentation).
Procedural
defaults
may
be
excused
under
certain
circumstances; "[a] petitioner who fails to exhaust his claim is
- 14 -
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
than mere "'legal' innocence."
Johnson v. Ala., 256 F.3d 1156,
1171 (11th Cir. 2001) (citations omitted), cert. denied, 535 U.S.
926 (2002).
Petitioner did not fairly and/or properly present this federal
constitutional claim to the state courts.
Any further attempts to
seek post conviction relief in the state courts on this ground will
be
unavailing.
See
Response
at
16-18.
As
such,
he
has
procedurally defaulted this claim.
Although Petitioner attempts to blame the state courts for his
failure
to
properly
exhaust
this
ground,
the
circuit
court
specifically advised Petitioner that he had the right to appeal the
denial of his post conviction motion.
Ex. G.
Instead of heeding
the circuit court's notice that Petitioner "shall have thirty (30)
days from the date this Order is filed to take an appeal, by filing
Notice of Appeal with the Clerk of the Court[,]" Petitioner filed
a petition for writ of mandamus, the denial of which he did appeal.
Ex. J; Ex. K; Ex. L; Ex. M; Ex. N; Ex. O; Ex. P.
The appeal of a
denial of petition for writ of mandamus does not constitute
- 15 -
exhaustion of the denial of a post conviction motion.
Indeed,
exhaustion requires that an appeal be taken from the denial of a
post conviction motion.
Leonard v. Wainwright, 601 F.2d 807, 808
(5th Cir. 1979) (per curiam).
Therefore, Petitioner must demonstrate cause and prejudice.
First, Petitioner must demonstrate cause for his default.
This
cause has to result from an objective factor external to the
defense, and that factor had to prevent Petitioner from raising his
constitutional claim which cannot be fairly attributable to his own
conduct.
Johnson v. Ala., 256 F.3d at 1171; Wright v. Hopper, 169
F.3d 695, 706 (11th Cir.), cert. denied, 528 U.S. 934 (1999).
In
order for Petitioner to establish prejudice, he must show that the
alleged errors actually and substantially disadvantaged his defense
resulting in a denial of fundamental fairness.
Johnson v. Ala.,
256 F.3d at 1171 (citation omitted).
Upon consideration, the Court finds that Petitioner has not
shown cause and prejudice.
His failure to comply with the circuit
court's directive to file his notice of appeal of the denial of his
post conviction motion is fairly attributable to his own conduct.
Also, he has failed to show prejudice.
Petitioner accepted the
plea bargain, and as noted by the trial court, he "acknowledged his
reasoning for entering the plea, understood the consequences of his
plea and he was satisfied with his attorney."
Ex. G at 2.
He was
facing a maximum sentence of thirty years as an habitual offender
in prison, and although the defense was prepared to go to trial,
- 16 -
Petitioner decided to make an open plea to the court.
Finally,
Petitioner has failed to show that failure to address this claim on
its merits would result in a fundamental miscarriage of justice.
This is not an extraordinary case as Petitioner has not made a
showing of actual innocence.
In conclusion, the Court finds that ground one is unexhausted
and procedurally defaulted.
Also of import, the fundamental
miscarriage of justice exception is inapplicable to the case at
bar. As a result, Petitioner is barred from pursuing ground one in
federal court.
Alternatively, Respondents assert that the claim raised in
ground one is without merit because "the denial of the motion was
nevertheless correct."
Response at 18.
In considering this
ground, the Court's scope of review is quite restricted because of
the finality of the plea proceeding:
The Supreme Court has given finality to guilty
pleas by precluding claims of constitutional
deprivations occurring prior to entry of the
plea. See Tollett v. Henderson, 411 U.S. 258,
267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
Following the entering of a guilty plea on the
advice of counsel, the scope of a federal
habeas corpus inquiry is limited to whether
the plea was voluntarily and intelligently
made; an independent inquiry as to the
existence
as
such
of
any
antecedent
constitutional
infirmity
is
improper.
Tollett, supra at 266. Only an attack on the
voluntary and knowing nature of the plea can
be sustained.
United States v. Broce, 488
U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927,
(1989) ("when the judgment of conviction upon
a guilty plea has become final and the
offender seeks to reopen the proceeding, the
- 17 -
inquiry is ordinarily confined to whether the
underlying plea was both counseled and
voluntary.)
Middleton v. Sec'y, Dep't of Corr., No. 8:06-cv-217-T-17TBM, 2008
WL 450007, at *4 (M.D. Fla. Feb. 15, 2008) (footnote omitted).
It is axiomatic that, and
[a]ccording to Tollett v. Henderson, 411 U.S.
258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235
(1973),
a
guilty
plea
waives
a[ll]
non-jurisdictional defects:
[A] a guilty plea represents a break
in the chain of events which has
preceded it in the criminal process.
When a criminal defendant has
solemnly admitted in open court that
he is in fact guilty of the offense
with which he is charged, he may not
thereafter raise independent claims
relating to the deprivation of
constitutional rights that occurred
prior to the entry of the guilty
plea.
United States v. Winslow, Nos. 8:05-cr-377-T-23EAJ, 8:07-cv-683-T23EAJ, 2007 WL 2302277, at *2 (M.D. Fla. Aug. 8, 2007).
The trial court found Petitioner's claim refuted by the record
of the plea proceeding.
Petitioner's
Petitioner
solemn
has
not
G.
There is a strong presumption that
declarations
overcome
this
in
open
court
presumption.
are
As
true.
noted
by
Respondents, "Petitioner's claims of an involuntary plea based on
alleged misadvice were without merit based on his sworn statements
to the contrary."
Response at 19.
The circuit court held just
that, finding the record of the sworn plea dialogue clearly refutes
Petitioner's allegations.
- 18 -
Petitioner relies on his pro se Motion to Withdraw Plea.
F.
Upon
review,
the
motion
contains
a
broad,
general
Ex.
and
conclusory allegation of the ineffectiveness of counsel, resulting
in Petitioner's involuntary plea.
In Florida, "broad, general
allegations of ineffectiveness of ... counsel do not indicate
misadvice, coercion, or misrepresentation that would require a
hearing[.]" Echeverria v. State, 33 So.3d 802, 804 (Fla. 1st DCA
2010)
(citing
(employing
a
Sheppard
v.
State,
harmless
error
17
analysis
So.3d
when
275
(Fla.
2009)
allegations
are
conclusively refuted by the record)).
Assuming for the purposes of this opinion that the appeal,
Ex. L, Ex. M, constituted an appeal of the denial of Motion to
Withdraw
Plea
(construed
to
be
a
Rule
3.850
motion),
it
is
Petitioner's burden to show there was no reasonable basis for the
state court to deny relief.
He has not accomplished that task.
As
noted by Respondents, the denial of the motion was objectively
reasonable and entitled to deference.
The state court's decision
is not inconsistent with Supreme Court precedent.
The state
court's adjudication of this claim, Ex. O, is not contrary to or an
unreasonable application of clearly established federal law, or
based on an unreasonable determination of the facts.
Thus,
Petitioner is not entitled to habeas relief on ground one.
B.
Ground Three
In ground three of the Amended Petition, Petitioner asserts
that he received the ineffective assistance of counsel because his
- 19 -
counsel advised Petitioner to reject a seven-year plea offer,
assuring Petitioner that he would receive a lesser sentence by
entering an open plea to the court.
Amended Petition at 8.
Petitioner claims that but for this ineffectiveness, he would have
accepted the seven-year plea offer and "not made an open plea
believing I could obtain drug treatment and probation and no more
than 40 months in prison[.]"
Id.
Petitioner did not present this same claim of ineffectiveness
in his Motion to Withdraw his Plea, construed as a Rule 3.850
motion by the circuit court.
Ex. F.
Even if he had, he did not
appeal the denial of the motion. Moreover, he did not present this
claim of ineffective assistance of counsel in his Petition for Writ
of Mandamus.
Ex. J.
The first time he made this contention was on
appeal of the denial of the Petition for Writ of Mandamus.
Thus, he did not properly exhaust this ground.
Ex. M.
An explanation
follows.
Petitioner is required to fairly present his claim in each
appropriate state court. Baldwin v. Reese, 541 U.S. 27, 29 (2004).
In order to give the state courts one full opportunity to resolve
a constitutional issue, a prisoner is required to invoke one
complete round of the state's established appellate review process.
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Here, Petitioner
did not raise the issue in his initial Rule 3.850 motion, and he
only raised it on appeal of the denial of the mandamus petition,
certainly not the appropriate avenue to raise a constitutional
- 20 -
challenge
concerning
the
effectiveness
of
counsel.
Although
Petitioner raised this ground in his subsequent Rule 3.850 motions,
Ex. T, Ex. U & Ex. V, the circuit court found these motions to be
successive and procedurally barred.
affirmed.
Ex. FF.
Ex. AA.
The First DCA
Thus, this claim of ineffective assistance of
counsel is unexhausted and procedurally defaulted. See Response at
22-23.
Therefore, the Court will not reach the merits of the claim
unless Petitioner shows cause and prejudice or a fundamental
miscarriage of justice.
Here, Petitioner has not shown cause for
his default because his failure to present the claim in his first
Rule 3.850 motion is fairly attributable to his own conduct.
Wright v. Hopper, 169 F.3d at 706.
His failure to appeal the
denial of that motion is also fairly attributable to his own
conduct.
Also of import, he has not shown the required prejudice.
In a federal habeas proceeding, in order to overcome a
procedural default without a showing of cause and prejudice, a
petitioner must show a fundamental miscarriage of justice would
occur if the underlying claim is not reached.
A fundamental
miscarriage of justice occurs "where a constitutional violation has
probably
resulted
innocent."
in
the
conviction
of
one
who
is
actually
Wright, 169 F.3d at 705 (quoting Schlup v. Delo, 513
U.S. 298, 321 (1995) (citation to internal quotation omitted)).
Petitioner has not shown actual innocence.
F.3d at 1171.
Johnson v. Ala., 256
He has not shown that a fundamental miscarriage of
- 21 -
justice would result if the claim of ineffective assistance of
counsel is not addressed on its merits.
Thus, this is not an
extraordinary case allowing for the fundamental miscarriage of
justice exception. As such, the merits of ground three will not be
reached by the Court.
Alternatively, this ground is due to be denied.
Assuming
arguendo that Petitioner exhausted this ground by raising it on
appeal of the denial of his petition for writ of mandamus, Ex. L &
Ex. M, Petitioner is not entitled to habeas relief.6
Petitioner alleges that trial counsel assured him that in
exchange for an open plea, Petitioner would be sentenced to drug
treatment and probation and a sentence of no more than forty
months.
The written plea form and the plea proceeding record
belies this assertion.
The Plea of Guilty form includes the
statement that Petitioner is pleading guilty in his best interest.
Ex. C.
It also states that Petitioner can receive a minimum
sentence of forty months, and a maximum sentence of fifteen years,
unless he is found to be a habitual offender, and then the maximum
sentence is thirty years.
Id.
No mention is made of a guarantee
of drug treatment, probation, or an agreed sentence of no more than
forty months in prison.
At the outset of the plea proceeding, defense counsel sets
forth the sentencing range: "Mr. Williams understands that his
6
Of note, the 1st DCA per curiam affirmed.
- 22 -
Ex. O; Ex. P.
minimum sentence would be 40 months up to 15 years, with the HO it
could be up to 30 years."
Ex. D at 3.
The record also shows that
the state previously filed a Notice of Intent to Classify Defendant
as an Habitual Felony Offender.
Ex. B.
At the plea proceeding,
the state announced that it would be seeking the habitual offender
classification.
Ex. D at 3.
Petitioner assured the court that he
gave his counsel permission to enter the plea on his behalf.
at 4-5.
Id.
The court again reiterated the range of sentence ("You
understand that your sentence can be anything from 40 months to 30
years, if I determine that you are an habitual offender."). Id. at
5.
Petitioner stated he understood and that no one had promised
"any kind of particular sentence" that the court would impose. Id.
Upon review, the record belies Petitioner's assertion that
counsel promised or advised him that he would get a sentence of no
more than forty months and drug treatment and probation by making
an open plea to the court.
Even if counsel had intimated such, the
record demonstrates that no confusion existed by the time of the
plea proceeding.
Petitioner signed the plea form, which clearly
stated the sentencing range.
Not only was he advised of the
sentencing range in writing, he was repeatedly verbally advised of
the sentencing range.
The record demonstrates that Petitioner was
well informed of the sentencing range.
Furthermore, Petitioner
assured the court that no promises were made as to the sentence he
would receive.
- 23 -
To
the
ineffective
deference.7
extent
the
assistance
state
of
court
trial
rejected
counsel,
it
this
is
claim
of
entitled
to
Upon review of the circuit court's order, it set forth
the applicable two-pronged Strickland standard as a preface to
addressing the claim of ineffective assistance of counsel.
The
court
provided
the
following
explanation
for
Ex. G.
denying
Petitioner's claim of ineffective assistance of counsel for giving
Petitioner misadvice:
In his Motion, the Defendant has made a
conclusory statement that he was provided
ineffective counsel and that he was given
"misadvice" yet he does not include any
specifics or allege any other grounds.
In
order to prevail on a claim of ineffective
assistance of counsel, the Defendant must show
that: (1) counsel's performance was outside
the wide range of reasonable professional
assistance, and (2) counsel's deficient
performance prejudiced the defense; that is,
that there is a reasonable probability that
the outcome of the proceeding would have been
different
absent
counsel's
deficient
performance.
Stickland v. Washington, 466
U.S. 668, 687 (1984); Cherry v. State, 659
So.2d 1069, 1072 (Fla. 1995).
Further, the
"standard is reasonably effective counsel, not
perfect or error-free counsel."
Coleman v.
State, 718 So.2d 827, 829 (Fla. 4th DCA 1998).
A claim of ineffective assistance of counsel
will warrant an evidentiary hearing only where
the Defendant alleges "specific facts which
are not conclusively rebutted by the record
and
which
demonstrate
a
deficiency
in
performance that prejudiced the defendant."
Roberts v. State, 568 So.2d 1255, 1259 (Fla.
7
The Court will assume for the limited purpose of reviewing
this ground that Petitioner's appeal to the 1st DCA completed the
exhaustion of his state court remedies with regard to this claim.
Ex. O; Ex. P.
- 24 -
1990). Moreover, "[t]o establish prejudice [a
defendant] 'must show that there is 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.'" Valle v. State, 778 So.2d 960, 96566 (Fla. 2001) (citations omitted).
In the
context of guilty pleas, the prejudice prong
focuses on "whether counsel's constitutionally
ineffective performance affected the outcome
of the plea process. In other words, in order
to satisfy the 'prejudice' requirement, the
defendant must show that there is a reasonable
probability that, but for counsel's error, he
would not have pled guilty and would have
insisted on going to trial."
Hill v.
Lockhart, 474 U.S. 52, 59 (1985); See also
Grosvenor v. State, 874 So.2d 1176, 1179 (Fla.
2004).
All the Defendant's allegations are
refuted by the record of the plea dialogue
which is attached. (Exhibit "B") During the
plea dialogue the defendant acknowledged his
reasoning for entering the plea, understood
the consequences of his plea and he was
satisfied with his attorney. A defendant may
not seek to go behind his sworn testimony at a
plea hearing in a post conviction motion.
Stano v. State, 520 So.2d 278 (Fla. 1988);
Dean v. State, 580 So.2d 808 (Fla. 3d DCA
1991); Bir v. State, 493 So.2d 55 (Fla. 1st
DCA 1986).
Therefore, this Court finds that the
Defendant has failed to establish error on the
part of counsel or prejudice to his case.
Strickland, 466 U.S. 668.
The Defendant's
only ground for relief is denied.
Ex. G at 1-2.
The 1st DCA affirmed.
Ex. O.
It is Petitioner's burden to show there was no reasonable
basis for the state court to deny relief.
that task.
He has not accomplished
Indeed, if there is any reasonable basis for the court
- 25 -
to
deny
deference
relief,
the
under
AEDPA
adjudication.
denial
should
must
be
be
given
given
to
deference.
the
state
Here,
court's
Its decision is not inconsistent with Supreme Court
precedent, including Strickland and its progeny. The state court's
adjudication of this claim is not contrary to or an unreasonable
application
of
Strickland,
determination of the facts.
or
based
on
an
unreasonable
Ground three is due to be denied.
See
Response at 23-30.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Amended Petition (Doc. 37) 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 Amended Petition,
the Court denies a certificate of appealability.8
Because this
Court has determined that a certificate of appealability is not
8
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.
- 26 -
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
July, 2017.
sa 7/10
c:
Lonnie C. Williams
Counsel of Record
- 27 -
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