Reinheimer v. Secretary, Department of Corrections et al

Filing 36

ORDER denying 1 petition for writ of habeas corpus and dismissing this case with prejudice, with directions to the Clerk. Signed by Judge Timothy J. Corrigan on 9/13/2017. (LPB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DELMAR REINHEIMER,
Petitioner,
v.

Case No. 3:14-cv-730-J-32MCR

SECRETARY, FLORIDA
DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
ORDER
Petitioner Delmar Reinheimer, an inmate of the Florida penal system,
initiated this action by filing a pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 with attached exhibits. See Doc. 1 (Petition; Pet. Ex.). Reinheimer
challenges both his 2010 state court (Clay County, Florida) conviction for lewd or
lascivious battery of a victim between 12 and 16 years and his 2010 violation of
probation imposed in 1995. Respondents filed a response with attached exhibits.
See Doc. 11 (Response; Resp. Ex.) Reinheimer replied. See Doc. 13 (Reply). With
the Court’s permission, see Doc. 22, Reinheimer later filed a supplement to his
petition and attached exhibits.

See Doc. 23 (Supp. Petition; Supp. Pet. Ex.).

Respondents filed a response to the supplement and attached exhibits. See Doc. 32

(Supp. Response; Supp. Resp. Ex.). Reinheimer replied. See Doc. 33 (Supp. Reply).
This case is ripe for review. 1
I.

Procedural History2

Following a guilty plea (Resp. Ex. L at 214-20), Reinheimer was convicted on
September 16, 2010, of lewd or lascivious battery of a victim between 12 and 16 years
Id. at 221-32. On the same day, Reinheimer also pled guilty to violation of probation
imposed in 1995. 3

Id. at 234.

On the new conviction, the court sentenced

Reinheimer to thirteen years imprisonment to be followed by two years probation.
Id. at 225. For the violation of probation, the court sentenced him to five years for
each of the four counts of attempted sexual battery.

Id. at 233-38.

The court

imposed concurrent sentences in both cases. Id. at 227, 238. Reinheimer did not
take a direct appeal.
Reinheimer filed a motion for postconviction relief pursuant to Florida Rule of
Criminal Procedure 3.850, which he later amended. Resp. Ex. K at 1-11; 101-25.

The pertinent facts of this case are fully developed in the record before the
Court. Because this Court can “adequately assess [Petitioner’s] claim[s] without
further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003),
an evidentiary hearing will not be conducted. See also Schriro v. Landrigan, 550
U.S. 465, 474 (2007) (citation omitted) (“if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to
hold an evidentiary hearing”).
1

Because Respondents set forth a detailed procedural history in their
Response, see Response at 1-7, the Court will provide a limited procedural history in
this Order.
2

In 1995, Reinheimer was convicted after pleading guilty to four counts of
attempted sexual battery of a child under twelve years. Resp. Ex. A at 18-27. He
was sentenced to seventeen years imprisonment followed by ten years of probation.
He was released in 2002.
3

2

The state court held an evidentiary hearing on ground one, at which five witnesses
testified.

Resp. Ex. L at 239-352.

On January 3, 2012, the court denied

Reinheimer’s motion in a twenty-three page order, accompanied by 254 pages of
exhibits. Resp. Ex. K at 190-200; Resp. Ex. L at 201-400; Resp. Ex. M at 401-468.
Following briefing in the appeal, the First DCA affirmed without opinion (Resp. Ex.
S); denied rehearing (Resp. Ex. T); and issued the mandate on June 2, 2014 (Resp.
Ex. U). Reinheimer v. State, 138 So. 3d 443 (Fla. 1st DCA 2014).
II.

Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs
a state prisoner’s federal petition for habeas corpus. See 28.U.S.C. § 2254; Ledford
v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016).
“‘The purpose of AEDPA is to ensure that federal habeas relief functions as a guard
against extreme malfunctions in the state criminal justice systems, and not as a
means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the claim on the merits. See Wilson v. Warden, Ga.
Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc), cert. granted,
Wilson v. Sellers, 137 S. Ct. 1203 (2017). 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); see also
Johnson v. Williams, 568 U.S.289, 301 (2013). Thus, the state court need not issue

3

an opinion explaining its rationale in order for the state court’s decision to qualify as
an adjudication on the merits. See Richter, 562 U.S. at 100; Wright v. Sec’y for the
Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002).
If the claim was “adjudicated on the merits” in state court, AEDPA bars
relitigation of the claim, subject only to the exceptions in § 2254(d)(1) and (d)(2).
Richter, 562 U.S. at 98. As the Eleventh Circuit explained:
First, § 2254(d)(1) provides for federal review for claims of
state courts' erroneous legal conclusions. As explained by
the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120
S. Ct. 1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists
of two distinct clauses: a “contrary to” clause and an
“unreasonable application” clause.
The “contrary to”
clause allows for relief only “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court
on a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Id. at 413, 120 S. Ct.
at 1523 (plurality opinion).
The “unreasonable
application” clause allows for relief only “if the state court
identifies the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case.” Id.
Second, § 2254(d)(2) provides for federal review for claims
of state courts' erroneous factual determinations. Section
2254(d)(2) allows federal courts to grant relief only if the
state court's denial of the petitioner's claim “was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2). The Supreme Court has not yet
defined § 2254(d)(2)'s “precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the state
court's factual findings “by clear and convincing evidence.”
See Burt v. Titlow, 571 U.S. ––––, ––––, 134 S. Ct. 10, 15,
187 L.Ed.2d 348 (2013); accord Brumfield v. Cain, 576 U.S.
––––, ––––, 135 S. Ct. 2269, 2282, 192 L.Ed.2d 356 (2015).
Whatever that “precise relationship” may be, “‘a statecourt factual determination is not unreasonable merely

4

because the federal habeas court would have reached a
different conclusion in the first instance.’”[ 4] Titlow, 571
U.S. at ––––, 134 S. Ct. at 15 (quoting Wood v. Allen, 558
U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016); see also Daniel v. Comm’r,
Ala. Dep’t of Corr., 822 F.3d 1248, 1259 (11th Cir. 2016). Also, deferential review
under § 2254(d) is limited to the record that was before the state court that
adjudicated the claim on the merits. See Cullen v. Pinholster, 563 U.S. 170, 181
(2011) (regarding § 2254(d)(1)); Landers v. Warden, Att’y Gen. of Ala., 776 F.3d 1288,
1295 (11th Cir. 2015) (regarding § 2254(d)(2)).
Where the state court’s adjudication on the merits is “‘unaccompanied by an
explanation,’ a petitioner’s burden under section 2254(d) is to ‘show [ ] there was no
reasonable basis for the state court to deny relief.’”
(quoting Richter, 562 U.S. at 98).

Wilson, 834 F.3d at 1235

Thus, “a habeas court must determine what

arguments or theories supported or, as here, could have supported, the state court’s
decision; and then it must ask whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the holding in a prior decision
of [the] Court.” Richter, 562 U.S. at 102; see also Wilson, 834 F.3d at 1235; Marshall,
828 F.3d at 1285.

To determine which theories could have supported the state

appellate court’s decision, the federal habeas court may look to a state trial court’s

4The

Eleventh Circuit has described the interaction between § 2254(d)(2) and
§ 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286
n.3 (11th Cir. 2016); see also Landers v. Warden, Att’y Gen. of Ala., 776 F.3d 1288,
1294, n.4 (11th Cir. 2015); Cave v. Sec’y, Dep’t of Corr., 638 F.3d 739, 744-47 & n.4, 6
(11th Cir. 2011); Jones, 540 F.3d at 1288 n.5.
5

previous opinion as one example of a reasonable application of law or determination
of fact. Wilson, 834 F.3d at 1239; see also Butts v. GDCP Warden, 850 F.3d 1201,
1204 (11th Cir. 2017). However, in Wilson, the en banc Eleventh Circuit stated that
the federal habeas court is not limited to assessing the reasoning of the lower court. 5
834 F.3d at 1239. As such,
even when the opinion of a lower state court contains
flawed reasoning, [AEDPA] requires that [the federal
court] give the last state court to adjudicate the prisoner’s
claim on the merits “the benefit of the doubt,” Renico [v.
Lett, 449 U.S. 766, 733 (2010)] (quoting [Woodford v.
Visciotti, 537 U.S. 19, 24 (2002)]), and presume that it
“follow[ed] the law,” [Woods v. Donald, --- U.S. ---, 135 U.S.
1372, 1376 (2015)] (quoting Visciotti, 537 U.S. at 24).
Id. at 1238; see also Williams, 133 S. Ct. at 1101 (Scalia, J., concurring).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.”

Titlow, 134 S. Ct. at 16.

“[E]ven a strong case for relief does not mean the state court’s contrary conclusion
was unreasonable.” Richter, 562 U.S. at 102; see also Tharpe, 834 F.3d at 1338
(“Federal courts may grant habeas relief only when a state court blundered in a
manner so ‘well understood and comprehended in existing law’ and ‘was so lacking in
justification’ that ‘there is no possibility fairminded jurists could disagree.’”) (quoting
Richter, 562 U.S. at 102-03). “If this standard is difficult to meet, that is because it

Although the Supreme Court has granted Wilson’s petition for certiorari, the
“en banc decision in Wilson remains the law of the [Eleventh Circuit] unless and until
the Supreme Court overrules it. Butts, 850 F.3d at 1205, n.2. Moreover, this
Court’s decision would be the same even under the pre-Wilson AEDPA framework
because this Court is deferring to the state trial court’s well-reasoned post-conviction
opinion.
5

6

was meant to be.” Richter, 562 U.S. at 102.
III.

Ineffective Assistance of Counsel

“The Sixth Amendment guarantees a defendant the effective assistance of
counsel at ‘critical stages of a criminal proceeding,’ including when he enters a guilty
plea.” Lee v. United States, 137 S. Ct. 1958, 1964 (2017) (quoting Lafler v. Cooper,
566 U.S. 156, 165 (2012); Hill v. Lockhart, 474 U.S. 52, 58 (1985)). “To demonstrate
that counsel was constitutionally ineffective, a defendant must show that counsel’s
representation ‘fell below an objective standard of reasonableness’ and that he was
prejudiced as a result.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 688
(1984)). Because a petitioner must satisfy both prongs of the two-part Strickland
test to show a Sixth Amendment violation, “a court need not address the performance
prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Ward v.
Hall, 592 F.3d 1144, 1163 (11th Cir. 2010) (citation omitted).
The Supreme Court has summarized the two-part Strickland standard:
To establish deficient performance, a person challenging a
conviction must show that “counsel’s representation fell
below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. A court considering a claim
of ineffective assistance must apply a “strong presumption”
that counsel’s representation was within the “wide range”
of reasonable professional assistance. Id., at 689. The
challenger’s burden is to show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id.,
at 687.
With respect to prejudice, a challenger must demonstrate
“a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.
A reasonable probability is a

7

probability sufficient to undermine confidence in the
outcome.” Id.
Richter, 562 U.S. at 104 (internal citations modified). In the context of guilty pleas,
the prejudice prong requires the defendant to show “a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill, 474 U.S. at 59; see also Lee, 137 S. Ct. at 1965; Premo v. Moore,
562 U.S. 115, 131–32 (2011). 6
Finally, “the standard for judging counsel’s representation is a most
deferential one.” Richter, 562 U.S. at 105.

“Reviewing courts apply a strong

presumption that counsel’s representation was within the wide range of reasonable
professional assistance.”

Daniel, 822 F.3d at 1262 (quotations omitted).

“When

this presumption is combined with § 2254(d), the result is double deference to the
state court ruling on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105);
see also Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en
banc) (Jordan, J., concurring); cf. Tharpe, 834 F.3d at 1338-39 (explaining that a
federal court may grant relief only if counsel’s representation fell below Strickland’s
highly deferential standard of objectively reasonable performance and the state
court’s contrary decision would be untenable to any fairminded jurist).

“[W]hen the defendant’s decision about going to trial turns on his prospects
of success and those are affected by the attorney’s error[,]” the defendant “must also
show that he would have been better off going to trial.” Lee, 137 S. Ct. at 1965 (citing
Moore, 562 U.S. at 118 (defendant alleged that his lawyer should have but did not
seek to suppress an improperly obtained confession) and comparing Hill, 474 U.S. at
59 (discussing failure to investigate potentially exculpatory evidence)).
6

8

“The question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether that
determination was unreasonable - a substantially higher threshold.” Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)
(quotation marks omitted).

If there is “any reasonable argument that counsel

satisfied Strickland’s deferential standard,” then a federal court may not disturb a
state-court decision denying the claim. Richter, 562 U.S. at 105.

As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371 (2010).
IV.

Findings of Fact and Conclusions of Law
A. AEDPA Deference

With respect to grounds one, two, four, five, and six, the Court presumes that
the First DCA’s per curiam affirmance of the denial of Reinheimer’s Rule 3.850
motion was on the merits. See Williams, 568 U.S. at 301; Richter, 562 U.S. at 99.
As such, the Court applies AEDPA deference in reviewing these claims. 7

See

The Court considered Respondents’ contention that Reinheimer’s pre-plea
ineffective-assistance-of-counsel claims in grounds one, two, four, and five are not
cognizable in federal habeas corpus because Reinheimer fails to assert that his plea
was involuntary or resulted from counsel’s misadvice. See Response at 8-9, 11, 12,
15; see also Tollett v. Henderson, 411 U.S. 258, 267 (1973) (petitioner may only attack
the voluntary and intelligent character of the guilty plea by showing that the advice
he received from counsel was not within the standards set forth in McMann v.
Richardson, 39 U.S. 759, 770 (1970)); Wilson v. United States, 962 F.2d 996, 997 (11th
Cir. 1992) (citation omitted) (“A defendant who enters a plea of guilty waives all
nonjurisdictional challenges to the constitutionality of the conviction, and only an
attack on the voluntary and knowing nature of the plea can be sustained.”). After
considering Reinheimer’s Reply (see Reply at 2, 4, 12, 14; see also Resp. Ex. K at 105,
108, 111, 112) and his pro se status, the Court will afford him the benefit of the doubt
7

9

Richter, 562 U.S. at 99. To determine which theories could have supported the First
DCA’s per curiam decision without written opinion, the Court may look to the state
circuit court’s previous opinion as an example of a reasonable application of law or
determination of fact. Wilson, 834 F.3d at 1239; see also Butts, 850 F.3d at 1204.
1. Ground One
Reinheimer asserts that his counsel was constitutionally ineffective by
refusing to interview five witnesses:
Krista Mosley and Debra Crews.

Brandi Mosley, Eric Johnson, Mike Gregg,

He asserts that these witnesses would have

testified that the victim fabricated her allegations and had a general inclination to
lie. Petition at 4. Reinheimer asserted this claim on collateral review in both the
state circuit and appellate courts. See Resp. Ex. K at 102-05; P at 4-13. The state
court held an evidentiary hearing on this claim.

At the evidentiary hearing,

witnesses Michael Gregg, Brandi Mosley, and Eric Johnson testified, as well as
Reinheimer and his former counsel. 8
and liberally construe his pleadings to consider his claims, which ultimately fail as
explained below.
Neither Delora Crews nor Krista Mosley testified at the evidentiary hearing.
As such, Reinheimer failed to substantiate his claims relating to these witnesses, and
the state circuit court did not address the claims involving them. Although
Reinheimer’s testimony was insufficient to maintain his claims, he testified that
Delora Crews (the victim’s mother) would have verified that the victim would lie
when she was in a predicament and that she was a thief, see Resp. Ex. L at 277, and
that Krista Mosley (Brandi’s sister-in-law) would have contradicted the victim’s
allegation of an orgy. At the evidentiary hearing, counsel testified that there was no
reason to interview Delora Crews because she was not listed as a witness and was
never brought up as a witness by anybody. Id. at 317. She did not recall
Reinheimer ever asking her to speak with Delora Crews, and explained that Delora
Crews would have no knowledge of what happened between him and the victim. Id.
8

10

The state court concluded that Reinheimer failed to show Strickland prejudice
from counsel’s failure to contact or depose Brandi Mosely, Mike Gregg, or Eric
Johnson. Id. at 193-96. In sum, the state court found that Brandi would not have
been a credible witness, which could have negatively affected a jury’s perception if
Reinheimer had gone to trial.

Id. at 195.

The state court also found that any

testimony provided by Gregg or Johnson would not have substantially benefitted
Reinheimer nor impacted the trial.

Id. at 195-96.

As such, the state court

concluded that there was no reasonable probability that the outcome of the
proceeding would have been different had these witnesses been deposed or called as
a witness. Id.
With respect to counsel’s performance, counsel testified that the prosecution
could not locate Brandi Mosley at the time. She did not seek to contact Brandi, who
was a minor, because it could have exposed Reinheimer to additional charges. The
state court concluded that “counsel made a reasonable and informed strategic
decision not to contact Brandi [Mosley] and as such, cannot be deemed to have
provided ineffective assistance.” 9 Id. at 193.
Applying deference under AEDPA and Strickland, the Court finds that the
state court’s decision was neither contrary to nor an unreasonable application of
Strickland, and it did not result from an unreasonable determination of the facts as

The state court made no finding but assumed arguendo that counsel should
have investigated Mike Gregg and Eric Johnson. Id. at 195-96. See Ward v. Hall,
592 F.3d 1144, 1163 (11th Cir. 2010) (“a court need not address the performance
prong if the petitioner cannot meet the prejudice prong, and vice-versa”).
9

11

presented to the state court. The claim in ground one is denied.
2. Ground Two
Reinheimer contends that his counsel refused to pursue a defense based on
impeaching the victim’s credibility with an expert opinion regarding his medicationinduced impotence. Petition at 4-5. He further contends that the state court denied
this claim by using an uncharged offense as reason to summarily deny his claim of
ineffective assistance of counsel. Id. at 5. Reinheimer exhausted this claim in state
court by raising it in his amended motion for postconviction relief (Resp. Ex. K at 10608) and on appeal to the First DCA. Resp. Ex. P at 13-19.
The state court denied his claim, concluding that counsel’s performance was
not deficient and that no prejudice resulted.

Resp. Ex. K at 196, 198.

After

reviewing the facts as asserted in the victim’s deposition, the state court concluded
that “expert testimony regarding Defendant’s alleged impotency could have been
found to corroborate the victim’s testimony.” Id. at 197. Furthermore, the state
court found that the victim’s deposition testimony revealed that at the very least,
Reinheimer committed a lewd and lascivious battery by digital penetration. Thus,
Reinheimer failed to demonstrate a reasonable probability that, but for counsel’s
failure to contact an expert, the result of the proceeding would have been different.
Id. at 198.
Applying AEDPA deference, the state court’s decision was neither contrary to
nor an unreasonable application of Strickland, and it did not result from an
unreasonable determination of the facts as presented to the state court. The claim

12

in ground two is denied.
3. Ground Four
Reinheimer contends that counsel never informed him that the victim could be
impeached for making several inconsistent statements.

Petition at 5.

He

complains that counsel never tried to use the victim’s inconsistent statements to
attempt to get the charges dismissed or a more favorable plea. Id. Reinheimer
exhausted this claim by raising it as ground four in his amended motion for
postconviction relief in state court, Resp. Ex. K at 111-13, and as issue three on appeal
to the First DCA. Resp. Ex. P at 19-26.
Without reaching the issue of deficient performance, the state circuit court
found that Reinheimer suffered no prejudice under Strickland because there was no
“reasonable probability that Defendant would have insisted on going to trial.” Resp.
Ex. L at 202. The state circuit court further explained:
[B]ased on the plea colloquy, Defendant’s signed Plea of
Guilty and Negotiated Sentence, the substantial amount of
evidence against Defendant, and the difference between
the sentence imposed under the plea and the maximum
possible sentence, Defendant cannot show there is a
reasonable probability that he would have proceeded to
trial but for counsel’s alleged omissions.
Id. at 210-11.

Applying deference under AEDPA, the state court’s decision was

neither contrary to nor an unreasonable application of Strickland, and it did not
result from an unreasonable determination of the facts as presented to the state
court. The claim in ground four is denied.

13

4. Ground Five
Reinheimer asserts that counsel refused to pursue an investigation of Matt
Brown for filing a fraudulent affidavit for arrest warrant in order to violate
Reinheimer’s probation. He contends that absent the fraudulent affidavit, there was
a very high probability that he never would have been violated on his probation nor
charged with lewd and lascivious battery.

He also contends that counsel’s error

denied him dismissal of the charges, or at the least, suppression of any damaging
statements he made. Petition at 6. Reinheimer exhausted this claim by raising it
as ground three in his amended motion for postconviction relief in state court, see
Resp. Ex. K at 108-11, and as issue five on appeal to the First DCA. Resp. Ex. P at
31-37. The state circuit court concluded:
The Court does not need to reach the issue of whether
counsel performed deficiently by failing to challenge the
affidavit for arrest on the charge of Sheltering and
Providing Aid to a Minor Runaway, as the affidavit did not
result in prejudice with regard to Defendant’s charge of
Lewd and Lascivious Battery. The affidavit for arrest
warrant as to the charges of Lewd and Lascivious Battery
substantially relied on the victim’s statements that
Defendant performed sexual activities with the minor
victim. (Exhibit “G.”) Therefore, the Court finds the
issue of Officer Brown’s alleged perjured affidavit filed in
support of the charge of Sheltering and Providing Aid to a
Minor Runaway, does not undermine that Court’s
confidence in Defendant’s conviction for Lewd and
Lascivious Battery.
Accordingly, Defendant’s third
ground for relief is denied.
Resp. Ex. K at 198-99.
Applying AEDPA deference, the state court’s decision was neither contrary to
nor an unreasonable application of Strickland, and it did not result from an

14

unreasonable determination of the facts as presented to the state court. The claim
in ground five is denied.
5. Ground Six
Reinheimer contends that counsel was ineffective for failing to ensure that he
was credited for all previous actual time served on his violation of probation. He
submits that he had over three years actually served in prison and jail and should
have received this credit to run coterminous with his new sentence. He contends
that the state court denied this ground based on an altered plea form. Petition at 6.
Reinheimer exhausted this claim by raising it as ground five in his amended
motion for postconviction relief in state court, see Resp. Ex. K at 113-14, and as issue
six on appeal to the First DCA.

Resp. Ex. P at 37-42.

The state circuit court

addressed the claim as follows:
As a practical matter, based on the State’s unwillingness
to negotiate a plea with Defendant for anything less than
thirteen years imprisonment (Exhibit “D,” page 62, 67.),
the Court finds it unlikely Defendant would be offered
seven years credit to the new sentence imposed in the
instant case. Furthermore, the Court specifically finds
[counsel’s] testimony both more credible and more
persuasive than the Defendant’s testimony and
allegations. Laramore v. State, 699 So. 2d 846 (Fla. 4th
DCA 1997).
At the evidentiary hearing, [counsel]
explained that Defendant agreed to the following sentence:
A. He entered a plea for 13 years Department of
Corrections, then two years probation on a lewd
and lascivious case, the 2010.
And the
agreement was that he would serve five years
concurrent for the violation of probation,
waiving any past credit except for what he
received for his current incarceration.

15

(Exhibit “D,” page 61. The Court accepts the testimony of
[counsel] and finds that she was not ineffective in advising
Defendant as to the terms of his plea. Accordingly,
Defendant’s fifth ground for relief is denied.
Resp. Ex. K at 199-200.
Applying AEDPA deference, the state court’s decision was neither contrary to
nor an unreasonable application of Strickland, and it did not result from an
unreasonable determination of the facts as presented to the state court. The claim
in ground six is denied.
B. Procedural Default
1. Ground Three
Reinheimer asserts that counsel misinformed him prior to entering his guilty
plea that he did not qualify for civil commitment under the Jimmy Ryce Act. He
contends that he would have gone to trial had he known that he would be subject to
the Jimmy Ryce Act.

He also asserts that the sentencing court allowed him to

believe and discouraged him from questioning his attorney’s misadvice. Petition at
5.
Reinheimer did not raise any issue involving the Jimmy Ryce Act in the
amended motion for postconviction relief he filed in state court on January 3, 2012.
Resp. Ex. K at 101-125.

However, after the conclusion of testimony at the

evidentiary hearing in state court, the following exchange between postconviction
counsel (Ms. Papa) and the court occurred:
MS. PAPA: Your Honor, another issue that was brought
up, and I know that we are just addressing the two
issues from Judge Lester, is before my client got here

16

and after – before he got to you, he had filed an
amended petition.[ 10]
And in that petition was that he had failed to be
advised of the Jimmy Ryce Act. So neither
Judge Lester nor yourself has made a ruling about
whether we can investigate that.
Your Honor, there is a plea form in the file that does
have the Jimmy Ryce information and that does
have my client’s initials on it; however, it – and this
is why at the beginning of the case I had asked for
the transcripts of the plea. And in those transcripts
of the plea, although it isn’t a plea form, it’s actually
– there’s no warning of that given on the record, and
that was another reason my client had added, but it
hasn’t been litigated and I just wanted to state that
for the record.
THE COURT:
I don’t think it ought to be sufficient to
set aside the plea in that your client has not yet been
civilly detained by the Jimmy Ryce Act, and we don’t
know whether he ever would be, and the record does
reflect that he initialed that paragraph on the plea
form.
MS. PAPA: Yes, sir. Your Honor, may I have a moment,
please?
THE COURT:

Yes.

MS. PAPA: Thank you.
(Counsel conferred briefly with the defendant.)
MS. PAPA: Your Honor, we would not have any other
witnesses to call.
Resp. Ex. L at 341-42 (emphases added). The parties then continued and presented

The record does not include any written amended petition in which
Reinheimer raised a claim that counsel was ineffective for either failing to advise or
misadvising him of the potential implications of the Jimmy Ryce Act.
10

17

closing arguments, but no one mentioned the Jimmy Ryce Act again.

Notably,

despite conferring with counsel and having the opportunity to correct her description
of his claim if he so desired, Reinheimer did not correct his postconviction counsel’s
characterization of his claim as a “failure-to-advise” claim.
In the state court’s order denying postconviction relief, the court summarized
by stating:
[A]t the evidentiary hearing, Defendant informed the
Court that he had filed another amended petition in which
he alleged error in that counsel and this Court failed to
advise him as to the Jimmy Ryce Act.
Id. at 211 (emphasis added). Before denying the claim, the court initially noted that
Reinheimer wrote his initials next to the standard “Jimmy Ryce Warning” paragraph
in the written plea of guilty and negotiated sentence form. The court then explained
that civil commitment under the Jimmy Ryce Act constitutes a collateral consequence
of a plea and found that the “failure to advise a defendant about a collateral
consequence cannot be the basis for post-conviction relief to set aside the plea
bargain.” Id. at 211-12 (emphasis added).
Reinheimer appealed the denial of postconviction relief to the First DCA,
where he asserted in his initial pro se brief that “[t]he court committed reversible
error when denying defendant the right to timely submit a new amended ground
pertaining to counsel’s misadvice regarding the civil commitment pursuant to the
Jimmy Ryce Act[ ] and the trial court’s failure to inform defendant to this possibility.”
See Resp. Ex. P at 26. He argued further that “[d]efense counsel’s misadvise (sic)
about Defendant not qualifying for the Ryce Act caused Defendant to enter a plea of

18

guilty where had he known the truth Defendant would have never entered into a plea
of guilty but would have proceeded to trial. Id. at 29. He did not assert in his
appellate brief that his postconviction counsel misrepresented his claim in the trial
court as a failure-to-advise claim; nor did he assert that the trial court misconstrued
his claim as a failure-to-advise claim rather than an affirmative misadvice claim.
In response, the state asserted in it’s appellate brief that it was “unable to
locate an amended petition raising this issue in the record on appeal.” Resp. Ex. Q
at 43. As such, the state contended that the issue was not properly before the trial
court and therefore not preserved for appellate review. Id. Assuming arguendo
that the issue was properly preserved, the state contended that the claim lacked merit
because the plea form bore Reinheimer’s initials in two separate provisions warning
of the potential ramifications of the Jimmy Ryce Act. See id. at 44-46.
Reinheimer replied that the issue was preserved because the court chose to
accept the new claim orally in open court. Resp. Ex. R at 7. Regarding the merits,
Reinheimer contended that the record (plea form) did not refute his claim that counsel
misadvised him regarding application of the Jimmy Ryce Act. Id. The First DCA
affirmed per curiam without written opinion. Resp. Ex. S.
There is a factual distinction between a claim that counsel failed to inform a
defendant of potential collateral consequences and a claim that counsel affirmatively
misadvised a defendant of potential collateral consequences. See Bauder v. Dep't Of
Corr. of Fla., 333 F. App'x 422, 424 (11th Cir. 2009) (reversing and remanding because
the district court analyzed petitioner’s claim as if he only claimed that his counsel

19

failed to advise him of potential civil commitment and failed to analyze the effect of
defense counsel's alleged affirmative misadvice regarding civil commitment). 11 The
two claims are not the same. Even assuming Reinheimer fairly presented a claim to
the state circuit court, he presented it as a failure-to-inform claim, see Resp. Ex. L at
341, and the state circuit court ruled on it as such. See id. at 211-12. However,
Reinheimer presented a different claim -- a claim of affirmative misadvice – on appeal
to the First DCA. See Resp. Ex. P at 26-31; Resp. Ex. R at 7. 12
In his Petition, Reinheimer presents a claim of affirmative misadvice, but he failed

See also Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir.1989)
(reversing and remanding for an evidentiary hearing to determine whether counsel's
affirmative misadvice regarding parole eligibility, a collateral consequence, rendered
the appellant's guilty plea unknowing and involuntary); Slicker v. Wainwright, 809
F.2d 768, 770 (11th Cir.1987) (reversing and remanding for an evidentiary hearing
because the appellant alleged that, had counsel not affirmatively misinformed him
about parole eligibility, he would have insisted on proceeding to trial); Downs-Morgan
v. United States, 765 F.2d 1534, 1540-41 (11th Cir.1985) (distinguishing an attorney's
failure to advise his client regarding a collateral consequence of his plea from an
affirmative misrepresentation, concluding that whether counsel was ineffective based
on a misrepresentation should be determined based on the totality of the
circumstances).
11

The Eleventh Circuit has recognized that counsel’s affirmative misadvice
regarding application of the Jimmy Ryce Act could constitute deficient performance
under Strickland. Bauder v. Dep’t of Corr., 619 F.3d 1272, 1274 (11th Cir. 2010).
Prior to doing so, however, the Eleventh Circuit “distinguished between trial
counsel's failure to inform a defendant of potential collateral consequences and
counsel's affirmative misadvice to a defendant regarding potential collateral
consequences.” Bauder, 333 F. App’x at 424. Since the Eleventh Circuit drew that
distinction, the Supreme Court stated that there was “no relevant difference between
an act of commission and an act of omission in th[e] context” of advice regarding the
risk of deportation. Padilla v. Kentucky, 559 U.S. 356, 370 (2010) (citing Strickland,
466 U.S. at 690). However, the Supreme Court in Padilla limited its opinion to
circumstances involving “the unique nature of deportation.” Id. at 365; see also Kim
v. Dir., Virginia Dep’t of Corr., 103 F. Supp. 3d 749, 755-56 (E.D. Va. 2015).
12

20

to exhaust this claim by fairly presenting it to the state circuit court. As such, the
claim in ground three is unexhausted. See 28 U.S.C. § 2254(b)(1); see also Baldwin
v. Reese, 541 U.S. 27, 29 (2004) (the prisoner must give the state courts the
opportunity to correct alleged constitutional violations by presenting his claims in
each appropriate state court). Because any future attempts at exhaustion would be
futile, Reinheimer’s claims are also procedurally barred. See Owen v. Sec’y, Dep’t of
Corr., 568 F.3d 894, 908 n.9 (11th Cir. 2009); see also O'Sullivan v. Boerckel, 526 U.S.
838, 848 (1999). Federal habeas review is precluded. 13 See Pope v. Sec’y for Dep’t
of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012). As such, the claim in ground three is
denied. 14
2. Grounds Seven and Eight
As ground seven, Reinheimer asserts that counsel was ineffective by neither
filing any pretrial motion to suppress any harmful statements nor informing him that
a suppression motion was available to him. He asserts that he informed his counsel
that he was never given his Miranda rights prior to being interrogated by law
enforcement prior to his polygraph. He contends that the lower court accepted an
altered Miranda warning form that was used for the purpose of Reinheimer
consenting to photographs of his penis, and that the date on the form predated his

Reinheimer makes no effort to show either (1) cause for and actual prejudice
from the default or (2) a fundamental miscarriage of justice. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991); Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir.
2010).
14 Even if not procedurally defaulted, given that Reinheimer’s signed plea form
included Jimmy Ryce warnings, an ineffective-assistance-of-counsel claim on this
ground would not likely prevail.
13

21

arrest by one year. Petition at 7. Reinheimer raised this issue as ground seven in
his amended motion for postconviction relief in state court. 15 The state trial court
denied his claim, finding that Reinheimer could not satisfy the prejudice requirement
under Strickland because he could not show a reasonable probability that he would
have proceeded to trial but for counsel’s alleged omissions. Resp. Ex. L at 202; 21011.
As ground eight, Reinheimer contends that the prosecution was personal and
vindictive.

He asserts that the prosecutor chose to pursue a conviction despite

knowing that Matt Brown had filed a fraudulent affidavit to support the arrest
warrant and that the victim was neither credible nor truthful.

He asserts that

counsel should have moved to have the charges dismissed.

Petition at 8.

Reinheimer raised this issue as ground six in his amended motion for postconviction
relief in state court. The state trial court denied his claim, finding that Reinheimer’s
allegation failed to demonstrate any specific prejudice as required under Florida state
law to disqualify a prosecutor. Accordingly, the state court found that Reinheimer
failed to establish deficient performance or that the outcome of the proceedings would
have been different absent counsel’s alleged omission. Resp. Ex. K at 200.
Although Reinheimer raised these claims in the state circuit court, he failed to
include them in the pro se brief he filed in the First DCA. As such, the claims in
grounds seven and eight are unexhausted. See 28 U.S.C. § 2254(b)(1); Boerckel, 526

“In his seventh ground for relief, Defendant alleges that he was not provided
his Miranda warnings prior to his interview with a private polygraph administrator.”
Resp. Ex. L at 201-02, n. 1.
15

22

U.S. 838 at 845 (“[S]tate prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State's
established appellate review process.”); Pope, 680 F.3d at 1284 (failure to present
every issue to the state’s highest court, either on direct appeal or collateral review,
constitutes a failure to exhaust state remedies); Doorbal v. Dep’t of Corr., 572 F.3d
1222, 1229 (11th Cir. 2009) (failure to appeal the denial of an ineffective-assistanceof-counsel claim constitutes a failure to exhaust state court remedies); see also
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (the prisoner must give the state courts the
opportunity to correct alleged constitutional violations by presenting his claims in
each appropriate state court). Because any future attempts at exhaustion would be
futile, Reinheimer’s claims are also procedurally barred. See Owen, 568 F.3d at 908
n.9. Thus, federal habeas review is precluded, unless Reinheimer can show either
(1) cause for and actual prejudice from the default;
miscarriage of justice. 17

16

or (2) a fundamental

See Davila v. Davis, 137 S. Ct. 2058, 2064-65 (2017);

“To establish ‘cause’. . . the prisoner must ‘show that some objective factor
external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.’” Davila, 137 S. Ct. at 2065 (quoting Murray v. Carrier, 477 U.S.
478, 488 (1986)). “[T]o show prejudice, a petitioner must demonstrate that ‘the
errors at trial actually and substantially disadvantaged his defense so that he was
denied fundamental fairness.’” Ward, 592 F.3d at 1157 (quoting McCoy v. Newsome,
953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam)).
16

This exception is “exceedingly narrow in scope as it concerns a petitioner’s
‘actual’ innocence rather than his ‘legal’ innocence.” Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995), cert.
denied, 535 U.S. 926 (2002)). “To meet this standard, a petitioner must ‘show that
it is more likely than not that no reasonable juror would have convicted him’ of the
underlying offense.” Id. In addition, “’[t]o be credible,’ a claim of actual innocence
must be based on reliable evidence not presented at trial.” Calderon v. Thompson,
523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such
17

23

Coleman, 501 U.S. at 750; Ward, 592 F.3d at 1157.
Reinheimer contends that he relied on a certified law clerk’s advice that he
could not raise the claims in grounds seven and eight on appeal to the First DCA due
to page limitations.

18

Petition at 7-8.

Initially, Respondents note that

Reinheimer’s initial brief on appeal was forty-two pages of text, less than the limit of
fifty. 19 Response at 17. Thus, Reinheimer had eight unused pages of text available
to him that he could have used to address the claims in grounds seven and eight.
Moreover, he never asked the First DCA for permission to exceed any applicable page
limit.
Nevertheless, even assuming that Reinheimer relied on erroneous advice from
the prison law clerk, it would not serve as cause to excuse his failure to raise these
claims on collateral appeal.

Reinheimer proceeded pro se in his state collateral

appeal to the First DCA; he had no constitutional right to counsel in state
postconviction proceedings. See Davila, 137 S. Ct. at 2062, 2065. As such, he had
personal responsibility for pursuing his issues on collateral appeal. Cf. Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“The fact that an inmate law clerk was
assisting in drafting the state petition does not relieve [petitioner] from the personal
responsibility of complying with the law.”) He cannot rely on the misadvice of a

evidence, in most cases, allegations of actual innocence are ultimately summarily
rejected. Schlup, 513 U.S. at 324.
18

justice.
19

Reinheimer makes no attempt to assert a fundamental miscarriage of
In his Reply, Reinheimer does not address grounds seven and eight.
24

prison law clerk to excuse his procedural default. 20 Due to Reinheimer’s failure to
exhaust these claims and the resulting procedural default, the Court denies the
claims raised in grounds seven and eight.
3. Supplemental Petition
Essentially, Reinheimer asserts that he was convicted of a nonexistent offense
because the statute was never properly enacted.

See Supp. Petition at 1.

He

contends that he is actually innocent of any charge based on the void statute. Id. at
4. He asserts that the court had no subject matter jurisdiction to punish him. Id.
As such, he contends that he can raise this issue at any time, citing Florida law. Id.
at 4-5; 8.
Respondents moved to dismiss the supplemental petition.

See Supp.

Response. The Court agrees with Respondents that Reinheimer’s claim is untimely
under § 2244(d)(1)(A) and that Reinheimer has neither asserted nor established that
he is entitled to equitable tolling. Id. at 2-4. Alternatively, the Court agrees with
Respondents that Reinheimer’s claim is procedurally defaulted because he failed to
exhaust his claim in state court.

See id. at 4-5.

He also fails to assert or

demonstrate cause and prejudice for his procedural default or a fundamental

Although Reinheimer does not assert that Martinez v. Ryan, 566 U.S. 1
(2012) should apply to excuse his procedural default, the narrow exception in
Martinez does not apply to Reinheimer’s failure to raise his claims on collateral
appeal. See id. at 14; Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1164, (11th
Cir. 2017) (the Martinez exception applies only where the prisoner failed to properly
raise ineffective-assistance-of-trial-counsel claims during the initial collateral
proceeding). Alternatively, Reinheimer cannot demonstrate that his underlying
claims are substantial. Martinez, 566 U.S. at 14.
20

25

miscarriage of justice. As such, the claim in the supplemental petition is denied.
Accordingly it is hereby
ORDERED:
1. Reinheimer’s Petition Under § 2254 for Writ of Habeas Corpus (Doc. 1) is
DENIED, and this action is DISMISSED WITH PREJUDICE.
2. The Clerk of Court shall enter judgment denying the Petition and
dismissing this case with prejudice.
3. If Petitioner appeals the denial of the Petition, the Court denies a certificate
of appealability. 21 Because this Court has determined that a certificate of
appealability is not warranted, the Clerk of the Court 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.

This Court should issue a certificate of appealability only if the Petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this substantial showing, 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)).
Here, after consideration of the record as a whole, a certificate of appealability is not
warranted.
21

26

4. The Clerk of the Court shall close this case.
DONE AND ORDERED in Jacksonville, Florida this 13th day of September
2017.

lc22
Copies to:

Counsel of record
Delmar Reinheimer #144366

27