Ashley v. Secretary, Department of Corrections et al

Filing 17

ORDER denying the Amended Petition 8 and dismissing the action with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 11/14/2017. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ANTWAIN D. ASHLEY,
Petitioner,
v.

Case No. 3:15-cv-7-J-34JRK

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Antwain D. Ashley, an inmate of the Florida penal
system, initiated this action on January 5, 2015, by filing a pro
se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254. He filed an Amended Petition (Doc. 8) on January 14,
2016. In the Amended Petition, Ashley challenges a 2007 state court
(Duval County, Florida) judgment of conviction for armed robbery
and armed burglary. Respondents have submitted a memorandum in
opposition to the Amended Petition. See Respondents' Answer to
Petition for Writ of Habeas Corpus (Response; Doc. 15) with
exhibits (Resp. Ex.). On June 9, 2016, the Court entered an Order
to Show Cause and Notice to Petitioner (Doc. 10), admonishing
Ashley regarding his obligations and giving Ashley a time frame in
which to submit a reply. Ashley submitted a brief in reply. See
Petitioner's Response to Answer to Petition for Writ of Habeas
Corpus (Reply; Doc. 16). This case is ripe for review.

II. Procedural History
On March 8, 2007, the State of Florida charged Ashley with
armed robbery (counts one and two) and armed burglary (count
three). See Resp. Ex. 1 at 39-40, Amended Information. On August 6,
2007, Ashley entered a guilty plea to all three charges. See Resp.
Exs. 1 at 63-64; 2 at 97-105, Transcript of the Plea Proceeding
(Plea Tr.). On September 21, 2007, the court sentenced Ashley to a
term of imprisonment of seventy-five years for count one with a
twenty-year

minimum

mandatory

term

for

actual

possession

and

discharge of a firearm; a term of imprisonment of fifty years for
count two with a ten-year minimum mandatory term for actual
possession of a firearm, to run consecutively to count one; and a
term of imprisonment of fifty years for count three with a ten-year
minimum mandatory term for actual possession of a firearm, to run
consecutively to count two.

See Resp. Exs. 1 at 65-72; 10 at 205-

26, Transcript of the Sentencing Hearing (Sentencing Tr.).
On March 4, 2008, with the benefit of counsel, Ashley filed a
motion to correct sentencing error pursuant to Florida Rule of
Criminal Procedure 3.800(b)(2) (Rule 3.800(b)(2) motion). In the
Rule 3.800(b)(2) motion, he requested a new sentencing hearing, at
which the court could exercise its discretion as to whether to
impose concurrent sentences instead of consecutive sentences. See
Resp. Ex. 3 at 1-9. On April 28, 2008, the trial court denied the
Rule 3.800(b)(2) motion. See id. at 10-160.

2

On direct appeal, Ashley, with the benefit of counsel, filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967). See
Resp. Ex. 4. Ashley filed a pro se brief, arguing that the trial
court erred when it: denied his motion to correct illegal sentence
(ground one), and imposed a sentence that violated the Eighth
Amendment (ground two). See Resp. Ex. 6. On February 4, 2009, the
appellate court affirmed Ashley's conviction and sentence per
curiam, see Ashley v. State, 4 So.3d 1222 (Fla. 1st DCA 2009);
Resp. Ex. 7, and later denied his motion for rehearing on March 20,
2009, see Resp. Ex. 8. The mandate issued on April 7, 2009. See
Resp. Ex. 7.
On June 11, 2009, Ashley filed a pro se motion for post
conviction relief pursuant to Florida Rule of Criminal Procedure
3.850 (Rule 3.850 motion) and an amended motion (Amended Rule 3.850
motion) on April 1, 2010. See Resp. Ex. 9 at 1-20, 49-57. In his
requests for post-conviction relief, he asserted that counsel
(Robert Carl Davis) was ineffective because he failed to: file a
motion to suppress evidence of a gun that he was charged with
possessing and firing during the commission of his crimes (ground
two); conduct an adequate pretrial investigation and raise a viable
defense

(ground

five);

and

research

the

law

on

the

court's

discretion to sentence him as a youthful offender (ground seven).
Additionally, Ashley stated that counsel misadvised him that the
court

would

sentence

him

to

no

3

more

than

twenty

years

of

incarceration if he entered an open plea (ground one). He also
asserted that the trial court was deprived of subject matter
jurisdiction because the Information was defective (grounds three
and four), and his sentence was illegal because the factual basis
for his plea did not support a finding that he possessed and/or
used a gun during the commission of the crimes (ground six). The
State responded, see id. at 45-48, 116-27, and Ashley replied, see
id. at 150-51. On March 3, 2011, the Court held an evidentiary
hearing, at which Davis (his former trial counsel) testified. See
Resp. Ex. 10 at 243-300, Transcript of the Evidentiary Hearing (EH
Tr.). On March 6, 2013, the court denied his requests for postconviction relief. See id. at 164-226. On January 28, 2014, the
appellate court affirmed the court's denial of post-conviction
relief per curiam, see Ashley v. State, 132 So.3d 224 (Fla. 1st DCA
2014); Resp. Ex. 13, and the mandate issued on March 5, 2014, See
Resp. Ex. 13.
During the pendency of the post-conviction proceedings, Ashley
filed a pro se motion to correct illegal sentence pursuant to
Florida Rule of Criminal Procedure 3.800(a) (Rule 3.800(a) motion)
on October 31, 2013. See Resp. Ex. 14 at 1-170. The court denied
the Rule 3.800(a) motion on December 26, 2013. See id. at 171-85.
On June 3, 2014, the appellate court affirmed the court's denial
per curiam, see Ashley v. State, 139 So.3d 890 (Fla. 1st DCA 2014);

4

Resp. Ex. 15, and the mandate issued on July 1, 2014, see Resp. Ex.
15.
On October 7, 2015, Ashley filed a pro se petition for writ of
habeas corpus or second successive motion for post-conviction
relief. See Resp. Ex. 16. The court dismissed Ashley's motion on
September 26, 2017. See https://core.duvalclerk.com, case number
16-2006-CF-016512-AXXX-MA, docket entry 312.
III. One-Year Limitations Period
The Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner
to establish the need for a federal evidentiary hearing. See Chavez
v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011). "In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec'y,
Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2245 (2017). "It follows that if the record
refutes the applicant's factual allegations or otherwise precludes
habeas

relief,

a

district

court

is

not

required

to

hold

an

evidentiary hearing." Schriro, 550 U.S. at 474. The pertinent facts

5

of this case are fully developed in the record before the Court.
Because this Court can "adequately assess [Ashley's] claim[s]
without further factual development," Turner v. Crosby, 339 F.3d
1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be
conducted.
V. Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs a state prisoner's federal petition for habeas
corpus. See Ledford v. Warden, Ga. Diagnostic & Classification
Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct.
1432 (2017). "'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)
(quotation marks omitted)). As such, federal habeas review of final
state court decisions is "'greatly circumscribed' and 'highly
deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343
(11th Cir. 2011) (quotation marks omitted)).
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, 137 S.Ct.
1203 (2017); Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277,

6

1285 (11th Cir. 2016). 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) (citation omitted);
see also Johnson v. Williams, 568 U.S. 289, 301 (2013).1 Thus, the
state court need not issue 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.
If the claim was "adjudicated on the merits" in state court,
§ 2254(d) bars relitigation of the claim unless the state court's
decision

(1)

"was

contrary

to,

or

involved

an

unreasonable

application of, clearly established Federal law, as determined by
the Supreme Court of the United States;" or (2) "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);
Richter, 562 U.S. at 97-98. As the Eleventh Circuit has 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

1

The presumption is rebuttable and "may be overcome when
there is reason to think some other explanation for the state
court's decision is more likely." Richter, 562 U.S. at 99-100; see
also Johnson, 133 S.Ct. at 1096-97. However, "the Richter
presumption is a strong one that may be rebutted only in unusual
circumstances . . . ." Johnson, 568 U.S. at 302.
7

"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 state-court factual determination is not
unreasonable merely because the federal habeas
court
would
have
reached
a
different
conclusion in the first instance.'"[2] 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)).

2

The 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), cert. denied,
137 S.Ct. 1103 (2017).
8

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2298 (2017); 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) generally 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, 182 (2011)
(stating the language in § 2254(d)(1)'s "requires an examination of
the state-court decision at the time it was made"); 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.'" Wilson, 834 F.3d at 1235 (quoting
Richter, 562 U.S. at 98). 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. 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 previous opinion as one example of a reasonable
application of law or determination of fact. Wilson, 834 F.3d at

9

1239; see Butts v. GDCP Warden, 850 F.3d 1201, 1204 (11th Cir.
2017), petition for cert. filed, No. 17-512 (Sept. 29, 2017).3
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. 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,[4] 559 U.S. at 773, 130 S.Ct. 1855
(quoting Visciotti,[5] 537 U.S. at 24, 123
S.Ct. 357), and presume that it "follow[ed]
the law," Donald,[6] 135 S.Ct. at 1376 (quoting
Visciotti, 537 U.S. at 24, 123 S.Ct. 357).
Id. at 1238.
Thus, "AEDPA erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in state
court." Burt v. Titlow, 134 S.Ct. 10, 16 (2013). "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.'" Tharpe, 834 F.3d at 1338

3

Although the United States 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.
4

Renico v. Lett, 559 U.S. 766 (2010).

5

Woodford v. Visciotti, 537 U.S. 19 (2002).

6

Woods v. Donald, 135 U.S. 1372 (2015).
10

(quoting Richter, 562 U.S. at 102-03). "This standard is 'meant to
be' a difficult one to meet." Rimmer v. Sec'y, Fla. Dep't of Corr.,
864 F.3d 1261, 1274 (11th Cir. 2017) (quoting Richter, 562 U.S. at
102). Thus, to the extent that Ashley's claims were adjudicated on
the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).
B. Ineffective Assistance of Counsel
"The

Sixth

Amendment

guarantees

criminal

defendants

the

effective assistance of counsel. That right is denied when a
defense attorney's performance falls below an objective standard of
reasonableness and thereby prejudices the defense." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
11

different.[7] A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding." Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized "the
absence of any iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other." Ward v. Hall, 592 F.3d
1144, 1163 (11th Cir. 2010). Since both prongs of the two-part
Strickland

test must be satisfied to show a Sixth Amendment

violation, "a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa." Id.
(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)).
As stated in Strickland: "If it is easier to dispose of an
ineffectiveness

claim

on

the

ground

of

lack

of

sufficient

prejudice, which we expect will often be so, that course should be
followed." Strickland, 466 U.S. at 697.

7

In the context of an ineffective assistance challenge to the
voluntariness of a guilty or no contest plea, a petitioner must
show there is a "reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted on
going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see
Lynch v. Sec'y, Fla. Dep't of Corr., 776 F.3d 1209, 1218 (11th Cir.
2015) (citation omitted) (stating that, to succeed on a claim that
counsel was ineffective because he advised petitioner to plead
guilty, petitioner "must prove that: (1) counsel's advice was
deficient; and (2) 'but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial'"), cert.
denied, 136 S.Ct. 798 (2016).
12

A state court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he
standard
for
judging
counsel's
representation is a most deferential one."
Richter, - U.S. at -, 131 S.Ct. at 788. But
"[e]stablishing
that
a
state
court's
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so." Id.
(citations and quotation marks omitted). "The
question is not whether a federal court
believes the state court's determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
1420, 173 L.Ed.2d 251 (2009) (quotation marks
omitted). If there is "any reasonable argument
that
counsel
satisfied
Strickland's
deferential standard," then a federal court
may not disturb a state-court decision denying
the claim. Richter, - U.S. at -, 131 S.Ct. at
788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014), cert.
denied, 135 S.Ct. 2126 (2015); Knowles v. Mirzayance, 556 U.S. 111,
123 (2009). "In addition to the deference to counsel's performance
mandated

by

Strickland,

the

AEDPA

adds

another

layer

of

deference--this one to a state court's decision--when we are
considering whether to grant federal habeas relief from a state
court's decision." Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004). As such, "[s]urmounting Strickland's high bar is never
an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

13

VI. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Ashley asserts that counsel was ineffective
because he misadvised him that the court would sentence him to no
more than twenty years of incarceration if he entered an open plea.
See Amended Petition at 6-7; Reply at 2-3. He raised the claim in
his Rule 3.850 motion in state court. See Resp. Ex. 9 at 2-6. The
court held an evidentiary hearing, at which Davis testified.
Identifying the two-prong Strickland ineffectiveness test and Hill
v. Lockhart as the controlling law, the post-conviction court
ultimately denied the Rule 3.850 motion with respect to the claim,
stating in pertinent part:
With regard to the claims of ineffective
assistance of counsel that were argued during
the March 3, 2011 evidentiary hearing, this
Court finds that the testimony given by
Defendant's trial counsel, Robert Carl Davis,
Esquire, is both more credible and more
persuasive than Defendant's sworn allegations
in the instant Motion. Laramore y. State, 699
So.2d 846 (Fla. 4th DCA 1997). As such, this
Court accepts his testimony, notes that he has
been practicing as an attorney in good
standing with the Florida Bar since 2003, and
finds that he functioned as "reasonably
effective counsel" in his investigation and
preparation of the defense in the instant
case. See Coleman, 718 So.2d at 829.[8] In
addition, this Court finds the trial decisions
made by Mr. Davis that are currently under
attack in the instant Motion constituted sound
trial strategy by a seasoned defense attorney.

8

Coleman v. State, 718 So.2d 827 (Fla. 4th DCA 1998).
14

See Songer v. State, 419 So.2d 1044 (Fla.
1982); Gonzalez v. State, 579 So.2d 145, 146
(Fla. 3d DCA 1991) ("Tactical decisions of
counsel
do
not
constitute
ineffective
assistance of counsel.") Having established
the preliminary findings with regard to the
evidentiary hearing, this Court will now
address the merits of Defendant's ineffective
assistance of counsel claims.
Ground One
In Ground One, Defendant alleges counsel
was ineffective for improperly advising him to
openly plead to twenty (20) years, when he was
actually sentenced to 175 years incarceration.
Defendant further alleges counsel told him he
"would get no more than twenty (20) years in
prison," and never "properly inform[ed] him
that he could have received one hundred and
seventy-five years (175) by [sic] the court."
(Def.'s Mot. 3.) Defendant asserts that if he
had known the maximum amount of time to which
he could have been sentenced, he would not
have pled guilty and would have, instead,
proceeded to trial. In this respect, Defendant
also alleges his plea was not voluntarily,
knowingly, and intelligently entered due to
counsel's alleged misadvice.
Assuming
arguendo
counsel
actually
advised Defendant that he "would get no more
than twenty (20) years in prison," such claim
fails for lack of prejudice. This Court first
looks to Defendant's sworn answers during the
plea colloquy. See Stano v. State, 520 So.2d
278, 280 (Fla. 1988) (holding that a defendant
may not seek to go behind his sworn testimony
at a plea hearing in a postconviction motion);
Bir v. State, 493 So.2d 55, 56 (Fla. 1st DCA
1986) (same); Dean v. State, 580 So.2d 808,
810 (Fla. 3d DCA 199l)(same); see also Iacono
v. State, 930 So.2d 829, 831 (Fla. 4th DCA
2006) ("A defendant is not entitled to rely on
an attorney's advice to commit perjury above
the solemn oath that the defendant makes to
the court to tell the truth."). At the plea
hearing, the judge fully advised Defendant
15

that he faced a maximum possible sentence of
life on each count with which he was charged,
and that he faced a twenty-year minimum
mandatory term on Count One and two ten-year
minimum mandatory terms on Counts Two and
Three. (Ex. G at 5, 6-7.)[9] The judge also
informed Defendant that by entering his pleas,
he was forfeiting certain constitutional
rights. (Ex. G at 6.) Defendant testified that
he had gone as far as the 11th grade in
school, that he could read and write, that he
was not under the influence of alcohol or any
other drug or medication that could affect his
ability to understand what was going on around
him, and that he in fact understood everything
the judge had asked him. (Ex. G at 5-7.)
Defendant
acknowledged
having
read,
understood, and signed a written Plea of
Guilty form. (Ex. G at 6.) Defendant further
testified that he had reviewed the form with
his attorney prior to signing it, and that his
attorney had answered all of his questions.
(Ex. G at 6.) Indeed, Defendant told the judge
he had given his attorney permission to enter
the guilty plea on his behalf, (Ex. G at 5),
and defense counsel advised the judge that he
had discussed the plea with Defendant at
length on more than one occasion. (Ex. G at
8.) Thereafter, the judge properly accepted
Defendant's plea as knowing, intelligent and
voluntary. (Ex. G at 8-9.)
Second, Defendant signed a detailed Plea
of Guilty Form. (Ex. A.) That form clearly
indicates
that
Defendant
"freely
and
voluntarily entered [his] plea of guilty,"
that he "ha[d] been advised of all direct
consequences of the sentences which may be
imposed," that he "ha[d] not been offered any
hope of reward, better treatment, or certain
type of sentence as an inducement to enter
[his] plea," that he "ha[d] not been promised
by anyone, including [his] attorney, that [he]
would actually serve any less time than that
set forth [in the agreement]," and that he

9

See Plea Tr.
16

"ha[d] not been threatened, coerced, or
intimidated by any person, including [his]
attorney, in any way in order to get [him] to
enter [his] plea." (Ex. A.)
Therefore,
Defendant's
claims
that
counsel
was
ineffective
for
improperly
advising him to openly plead to twenty (20)
years, and that his plea was not voluntarily,
knowingly, and intelligently entered as a
result of counsel's alleged misadvice, are
refuted by the record. See Stano, 520 So.2d at
280; Bir, 493 So.2d at 56; Dean, 580 So.2d at
810; see also Iacono, 930 So.2d at 83l.
Further, given Defendant's signed Plea of
Guilty form, his sworn testimony during the
plea colloquy, and the totality of the
circumstances of his case, there is no
reasonable probability that he would have
insisted on going to trial. See Grosvenor, 874
So.2d at 1181-82.[10] Thus, Defendant has
failed to demonstrate prejudice and Ground One
is denied.
Resp. Ex. 10 at 170-73. On appeal, Ashley filed a pro se initial
brief, see Resp. Ex. 11 at 3-6; the State filed an answer brief,
see Resp. Ex. 12 at 18-25; and the appellate court affirmed the
court's denial of post-conviction relief per curiam, see Resp. Ex.
13.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. 12 at 19-25, and therefore, the appellate
court may have affirmed Ashley's conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the

10

Grosvenor v. State, 874 So.2d 1176 (Fla. 2004).
17

Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly established federal
law.

Nor

was

the

state

court's

adjudication

based

on

an

unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.

Accordingly, Ashley is

not entitled to relief on the basis of this claim.
Moreover,

even

assuming

the

state

appellate

court's

adjudication of the claim is not entitled to deference, Ashley's
claim, nevertheless, is without merit. The United States Supreme
Court has determined that "the representations of the defendant ...
[at a plea proceeding] 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." Blackledge v. Allison,
431 U.S. 63, 73-74 (1977). The Court stated:
Courts should not upset a plea solely because
of post hoc assertions from a defendant about
how he would have pleaded but for his
attorney's deficiencies. Judges should instead
look
to
contemporaneous
evidence
to
substantiate
a
defendant's
expressed
preferences.
Lee v. United States, 137 S.Ct 1958, 1967 (2017). Moreover, "[a]
reviewing federal court may set aside a state court guilty plea
only for failure to satisfy due process: If a defendant understands
the charges against him, understands the consequences of a guilty

18

plea, and voluntarily chooses to plead guilty, without being
coerced to do so, the guilty plea ... will be upheld on federal
review." Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir. 1991). On
this record, Ashley has failed to carry his burden of showing that
his counsel's representation fell outside that range of reasonably
professional assistance.
At the plea hearing, counsel advised the court that Ashley "is
going to be entering a plea straight up to the Court[]" as to all
three counts. Plea Tr. at 100. The following colloquy ensued.
THE COURT: Did you hear the plea your
attorney just entered on your behalf?
[ASHLEY]: Yes, sir.
THE COURT: Did he have your permission to
do that?
[ASHLEY]: Yes, sir.
THE COURT: Did you tell him he could do
that because you are guilty?
[ASHLEY]: Yes, sir.
THE COURT: Do you understand that you
face a maximum sentence of life on each of the
counts with which you are charged?
[ASHLEY]: Yes, sir.
[PROSECUTOR]: And, Judge, if I may, on
Counts 2 and 3 there is a ten-year minimum
mandatory, and on Count 1 there is a 20-year
minimum mandatory.
THE COURT: You understand your minimum
sentence is 20 years?
[ASHLEY]: Yes, sir.
19

. . . .
THE COURT: Do you understand that there
is no parole in Florida and that if you are
sentenced to life in prison on any or all of
these counts, you will spend the rest of your
life locked up?
[ASHLEY]: Yes, sir.
THE COURT: Do you understand the minimum
sentences on each count are day-for-day
minimum sentences and that the very least
amount of time that you would serve would be
an actual term of 20 years?
[ASHLEY]: Yes, sir.
. . . .
THE COURT: Have you had enough time to
talk to your lawyer and to think about this?
[ASHLEY]: Yes, sir.
[DEFENSE COUNSEL]: Your Honor, for
purposes of the record, because of the early
findings of Dr. Miller, my client does suffer
from a diminished capacity and does not
comprehend the way a normal 20-year-old would.
So we have gone and spent, to an extensive
degree, to make sure he completely understands
what's going on before going forward.
THE COURT: How much time would you
estimate you've spent discussing the plea with
him?
[ASHLEY]:
On
two,
possibly
three
occasions, at least two to three hours -THE COURT: All right.
[ASHLEY]: -- maybe more.
Id. at 101-04.

20

At the evidentiary hearing, Davis testified that he discussed
with Ashley whether he wanted to proceed to trial on four or five
separate occasions, and Ashley ultimately decided that he did not
want to go to trial. See EH Tr. at 268. Davis stated:
I can't even count the number of times I
went to the jail and discussed his case with
him, because he had copies of all of his
transcripts, all of the discovery, and we went
over it time and time again, so that he knew
inherently what the pitfalls were in his case.
One of the victims he worked with. So
identity wasn't an issue. When the police were
looking for him, one of the witnesses that
identified him was a family member.
Id. at 269. Davis testified that Ashley "made it inherently clear
that he in no way, shape, or form, wanted to go to trial." Id. at
264.
After the state court evidentiary hearing, the circuit court
resolved the credibility issue in favor of believing counsel's
testimony over Ashley's sworn allegations in his Rule 3.850 motion.
See Resp. Ex. 10 at 170-71 (stating "the testimony given by
Defendant's trial counsel, Robert Carl Davis, Esquire, is both more
credible and more persuasive than Defendant's sworn allegations in
the

instant

Motion.").

The

Court

notes

that

credibility

determinations are questions of fact. See Martin v. Kemp, 760 F.2d
1244, 1247 (11th Cir. 1985) (per curiam) (finding that factual
issues

include

basic,

primary,

or

historical

facts,

such

as

external events and credibility determinations). Here, Ashley has

21

not rebutted the trial court's credibility finding by clear and
convincing evidence. See Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). Given the trial court's credibility determination, Ashley's
claim is wholly unsupported, and therefore must fail.
Even

assuming

arguendo

deficient

performance

by

defense

counsel, Ashley has not shown any resulting prejudice. He has not
shown a "reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to
trial."

Hill,

474

U.S.

at

59.

At

the

plea

hearing,

Ashley

acknowledged that he pled guilty because he was in fact guilty of
the charges. See

Plea Tr. at 101. Additionally, the State's

evidence against him was substantial. The court found from the
arrest affidavit that there was a factual basis for the plea. See
id. at 105. If Ashley had proceeded to trial, and the jury had
found him guilty of the offenses, he would have faced possible
terms of life imprisonment. See id. at 101. Notably, the court
informed him of the severe sentences he faced, and he acknowledged
that he understood. See id. at 101-04. Accordingly, Ashley is not
entitled to federal habeas relief on ground one.
B. Ground Two
As ground two, Ashley asserts that counsel was ineffective
because he failed to file a motion to suppress evidence of a
firearm that he was charged with possessing and firing during the
commission of the crimes. See Amended Petition at 8-9; Reply at 3-

22

4. He raised the claim in his Rule 3.850 motion in state court. See
Resp. Ex. 9 at 7-9. After an evidentiary hearing, the postconviction court ultimately denied the Rule 3.850 motion with
respect to the claim, stating in pertinent part:
In Ground Two, Defendant alleges counsel
was ineffective for failing to file a motion
to suppress evidence of a gun that he was
charged with possessing and firing during the
commission of his crimes. Defendant asserts
counsel was properly informed a weapon was at
the home of Abdul Bissent, but that, other
than Mr. Bissent's testimony, there was no
evidence to prove Defendant had ever handled
or owned this gun. Specifically, Defendant
argues
tests
conducted
by
the
Florida
Department
of
Law
Enforcement
("FDLE")
demonstrate that Defendant did not handle the
gun because his fingerprints did not match
those found on the gun. But for counsel's
alleged failure to file a motion to suppress,
Defendant avers he would not have pled guilty.
Initially, this Court notes that, to the
extent
Defendant
is
challenging
the
sufficiency of the evidence, he may not do so
in a motion for postconviction relief. Betts
v. State, 792 So.2d 589 (Fla. lst DCA 200l);
Jackson v. State, 640 So.2d 1173 (Fla. 2d DCA
1994). As for the merits of Defendant's
claims, at the March 3, 2011 evidentiary
hearing, Mr. Davis, Esq., testified that he
made the strategic choice not to file a motion
to suppress the gun.[11] Specifically, Mr.
Davis said there were State witnesses,
including some members of Defendant's own
family, who, even absent the evidence of the
gun, would have identified Defendant as the
robber.[12] Mr. Davis stated that if he had
filed a motion to suppress, these witnesses

11

See EH Tr. at 263-66, 270.

12

See EH Tr. at 265.
23

would have taken the stand and it would have
been "troubling" for Defendant's case.[13]
Further, Mr. Davis stated that Defendant's
choice to openly plead guilty added to his
decision not to file a motion to suppress.[14]
Based on such testimony, this Court finds
counsel's failure to file a motion to suppress
the gun constituted proper trial strategy. See
Chavez v. State, 12 So.3d 199, 207 (Fla.
2009)(finding a strategic decision by counsel
does not "constitute ineffective assistance if
alternate
courses
of
action
have
been
considered and rejected and counsel's decision
was reasonable under the norms of professional
conduct"). Thus, counsel was not deficient and
Ground Two is denied.
Resp. Ex. 10 at 173-74. On appeal, Ashley filed a pro se brief, see
Resp. Ex. 11 at 6-8; the State filed an answer brief, see Resp. Ex.
12 at 25-30; and the appellate court affirmed the court's denial of
post-conviction relief per curiam, see Resp. Ex. 13.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. 12 at 26-30, and therefore, the appellate
court may have affirmed Ashley's conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the
Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly established federal

13

See EH Tr. at 275-76.

14

See EH Tr. at 266, 275.
24

law.

Nor

was

the

state

court's

adjudication

based

on

an

unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.

Accordingly, Ashley is

not entitled to relief on the basis of this claim.
Moreover,

even

assuming

the

state

appellate

court's

adjudication of the claim is not entitled to deference, Ashley's
claim still is without merit. The record supports the postconviction court's conclusion that counsel's decision not to file
a motion to suppress the gun constituted reasonable trial strategy.
After an evidentiary hearing, the circuit court resolved the
credibility issue in favor of believing counsel's testimony over
Ashley's sworn allegations. See Resp. Ex. 10 at 170-71. Given the
trial court's credibility determination, Ashley's claim is wholly
unsupported, and therefore must fail.
In

evaluating

the

performance

prong

of

the

Strickland

ineffectiveness inquiry, there is a strong presumption in favor of
competence. See Anderson v. Sec'y, Fla. Dep't of Corr., 752 F.3d
881, 904 (11th Cir. 2014). The inquiry is "whether, in light of all
the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance." Strickland,
466 U.S. at 690. "[H]indsight is discounted by pegging adequacy to
'counsel's perspective at the time' . . . and by giving a 'heavy
measure of deference to counsel's judgments.'" Rompilla v. Beard,
545 U.S. 374, 381 (2005). Thus, Ashley must establish that no

25

competent attorney would have taken the action that counsel, here,
chose.
Notably, the test for ineffectiveness is neither whether
counsel could have done more nor whether the best criminal defense
attorneys might have done more; in retrospect, one may always
identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514 (11th
Cir. 1995) (stating that "perfection is not the standard of
effective assistance") (quotations omitted). Instead, the test is
whether what counsel did was within the wide range of reasonable
professional assistance. Ward, 592 F.3d at 1164 (quotations and
citation omitted); Dingle v. Sec'y for Dep't of Corr., 480 F.3d
1092,

1099

(11th

Cir.

2007)

("The

question

is

whether

some

reasonable lawyer at the trial could have acted as defense counsel
acted in the trial at issue and not what 'most good lawyers' would
have done.") (citation omitted).
On this record, Ashley has failed to carry his burden of
showing that his counsel's representation fell outside that range
of reasonably professional assistance. Even assuming arguendo
deficient performance by defense counsel, Ashley has not shown
prejudice. He has not shown a "reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill, 474 U.S. at 59. Ashley's
ineffectiveness claim is without merit since he has shown neither

26

deficient performance nor resulting prejudice. Accordingly, Ashley
is not entitled to federal habeas relief on ground two.
C. Ground Three
As ground three, Ashley asserts that counsel was ineffective
because he failed to conduct an adequate pretrial investigation and
raise a viable defense. See Amended Petition at 10-11; Reply at 46. He raised the claim in his Rule 3.850 motion in state court. See
Resp. Ex. 9 at 16-17. After an evidentiary hearing, the postconviction court ultimately denied the Rule 3.850 motion with
respect to the claim, stating in pertinent part:
In Ground Five, Defendant alleges counsel
was ineffective for failing to conduct an
adequate pre-trial investigation and to raise
a viable defense. Specifically, Defendant
asserts counsel was ineffective for failing to
develop any defenses premised upon the
suppression of the firearm evidence. Defendant
argues that, as a result of counsel's alleged
ineffective
assistance,
he
entered
an
ill-advised guilty plea.
Again, this Court notes that, to the
extent
Defendant
is
challenging
the
sufficiency of the evidence, he may not do so
in a motion for postconviction relief. Betts,
792 So.2d 589;[15] Jackson, 640 So.2d 1173.[16]
Moreover, as detailed in Grounds One and Two,
above, Defendant's open plea of guilty was
knowingly, intelligently, and voluntarily
entered, and counsel's decision not to pursue
a motion to suppress the gun was a strategic
one. Thus, Defendant has failed to demonstrate
both deficiency on the part of counsel for

15

Betts v. State, 792 So.2d 589 (Fla. 1st DCA 2001).

16

Jackson v. State, 640 So.2d 1173 (Fla. 2nd DCA 1994).
27

failing to pursue the suppression of the
firearm evidence, and resulting prejudice.
Accordingly, Ground Five is denied.
Resp. Ex. 10 at 174-75. On appeal, Ashley filed a pro se brief, see
Resp. Ex. 11 at 12-13; the State filed an answer brief, see Resp.
Ex. 12 at 32-36; and the appellate court affirmed the court's
denial of post-conviction relief per curiam, see Resp. Ex. 13.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. 12 at 32-36, and therefore, the appellate
court may have affirmed Ashley's conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the
Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly established federal
law.

Nor

was

the

state

court's

adjudication

based

on

an

unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.

Accordingly, Ashley is

not entitled to relief on the basis of this claim.
Moreover,

even

assuming

the

state

appellate

court's

adjudication of the claim is not entitled to deference, Ashley's
claim, nevertheless, is without merit. The record supports the
post-conviction

court's

conclusion

that

Ashley

failed

to

demonstrate both deficiency on the part of counsel and resulting

28

prejudice. On this record, Ashley has failed to carry his burden of
showing that his counsel's representation fell outside that range
of reasonably professional assistance. According to Davis, he
deposed numerous witnesses, see EH Tr. at 264, reviewed discovery
with Ashley on multiple occasions, see id. at 269, and "was very
worried" that if he "kept digging" and continued with pretrial
investigations, "it might actually get worse" for Ashley, id. at
278. Davis testified that there was some DNA evidence that would
inculpate Ashley and expose him to "additional problems." Id. Given
the trial court's credibility determination in believing counsel's
testimony over Ashley's sworn allegations, Ashley's claim is wholly
unsupported, and therefore must fail.
Even

assuming

arguendo

deficient

performance

by defense

counsel, Ashley has not shown any resulting prejudice. Ashley's
ineffectiveness claim is without merit since he has shown neither
deficient performance nor resulting prejudice. Accordingly, Ashley
is not entitled to federal habeas relief on ground three.
D. Grounds Four and Seven
As grounds four and seven, Ashley asserts that counsel was
ineffective because he failed to research the law relating to the
trial court's discretion to sentence Ashley as a youthful offender.
See Amended Petition at 12-13, 21-23. He raised the claims in his
Amended Rule 3.850 motion, as ground seven, in state court. See
Resp. Ex. 9 at 50-56. After an evidentiary hearing, the post-

29

conviction court ultimately denied the Amended Rule 3.850 motion
with respect to the claim, stating in pertinent part:
Defendant alleges counsel was ineffective for
failing to research the law on the court's
discretion to sentence Defendant as a Youthful
Offender. This Court construes Defendant's
claim as also alleging that he would have
qualified for Youthful Offender sentencing,
and that he was prejudiced as a result of
counsel's
failure
to
investigate
this
sentencing possibility.
Defendant's claim fails because he cannot
demonstrate prejudice. At the sentencing
hearing, defense counsel advised the judge
that,
after
reviewing
the
Pre-Sentence
Investigation Report and conferring with the
State, he did not believe Defendant was
entitled to be sentenced as a Youthful
Offender because he had already received a
Youthful Offender adjudication. (Ex. I at 119,
122.) See § 958.04(l)(c), Fla. Stat (2006).[17]

17

Florida Statutes section 958.04(1) provides that the court
may sentence as a youthful offender any person:
(a) Who is at least 18 years of age or who has
been transferred for prosecution to the
criminal division of the circuit court
pursuant to chapter 985;
(b) Who is found guilty of or who has
tendered, and the court has accepted, a plea
of nolo contendere or guilty to a crime that
is, under the laws of this state, a felony if
the offender is younger than 21 years of age
at the time sentence is imposed; and
(c) Who has not previously been classified as
a youthful offender under the provisions of
this act; however, a person who has been found
guilty of a capital or life felony may not be
sentenced as a youthful offender under this
act.
30

Yet, defense counsel argued that if Defendant
were
eligible
for
a
Youthful
Offender
sentence, he would "be a viable candidate for
it because in a youth camp he can get the
direction and guidance that he needs rather
than just being incarcerated in an adult
prison." (Ex. I at 121-22.) In fact, prior to
imposition of sentence, the Assistant State
Attorney advised the judge that it did appear
Defendant was eligible for Youthful Offender
sentencing
because
the
Assistant
State
Attorney was not aware of any prior instances
where Defendant was adjudicated and sentenced
as a Youthful Offender. (Ex. I at 132-33.) The
Assistant State Attorney also advised that
Youthful Offender sentencing was purely within
the judge's discretion. (Ex. I at 132.)
Therefore, the judge was well aware of the
possibility of sentencing Defendant as a
Youthful
Offender,
and
that
such
[a]
sentencing decision was purely within his
discretion. As such, Defendant has failed to
establish prejudice as required by Strickland.
Accordingly, Ground Seven is denied.
Resp. Ex. 10 at 175-76. On appeal, Ashley filed a pro se brief, see
Resp. Ex. 11 at 14-17; the State filed an answer brief, see Resp.
Ex. 12 at 39-44; and the appellate court affirmed the court's
denial of post-conviction relief per curiam, see Resp. Ex. 13.
In its appellate brief, the State addressed the claims on the
merits, see Resp. Ex. 12 at 40-44, and therefore, the appellate
court may have affirmed Ashley's conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claims is entitled to deference under
AEDPA. After a review of the record and the applicable law, the

31

Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly established federal
law.

Nor

was

the

state

court's

adjudication

based

on

an

unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.

Accordingly, Ashley is

not entitled to relief on the basis of these claims.
Moreover,

even

assuming

the

state

appellate

court's

adjudication of the claims is not entitled to deference, Ashley's
claims, nevertheless, are without merit. On this record, Ashley has
failed

to

carry

his

burden

of

showing

that

his

counsel's

representation fell outside that range of reasonably professional
assistance. At sentencing, Davis stated, "I don't believe my
client's entitled to a YO [(youthful offender)] status." Sentencing
Tr. at 209. Nevertheless, he argued that the mitigation presented
by Dr. Miller supported a downward departure sentence. See id. at
209-10. Davis explained:
[W]ere [Ashley] eligible for a YO [sentence],
I would recommend that he would be a viable
candidate for it because in a youth camp he
can get the direction and guidance that he
needs rather than just being incarcerated in
an adult prison. However, in reviewing his
PSI, I don't believe he might be eligible for
that because I believe he received a youthful
offender adjudication.
Id. at 211-12. The State responded:
not

Based on my review of his record, I do
see any prior instances where he was
32

specifically adjudicated and sentenced as a
YO. I do see that he has two prior sentences
as a juvenile, but not specifically YO. So to
err on the side of caution, the State would
inform Your Honor that it does appear that the
defendant is eligible for YO. However, based
on our prior arguments, the State would ask
Your Honor to instead sentence him according
to the 10-20-Life.
Id. at 222-23.
At the state court evidentiary hearing, Davis described the
sidebar discussion he had with Judge Merrett and Ms. Trudeau, the
Assistant State Attorney.
If you look at the transcript, you'll see
where we approached the bench sidebar. And, at
that point in time, we were in Courtroom 2, if
I'm not mistaken. We approached sidebar. Judge
Merrett came down off the bench, and sat
literally on the step, and we had one of the
Florida Rules of Criminal Procedure, at that
time, I believe, it was 2007, and we sat
there, and we literally thumbed through the
statute sidebar, to determine whether or not
Mr. Ashley was, in fact, eligible, because
this was a 10-20-Life case, and it was one of
the ones that was first to be filed using Mr.
Ashley under 10-20-Life, which is where the
confusion, of whether or not he would or would
not be eligible.
And we sat there, and we went through
this four or five different points, to
determine whether or not a youthful offender
sanction [sic] would be appropriate in Mr.
Ashley's case, specifically, was this a single
and isolated case. And the Judge sat there and
said, "Well, we got three separate incidents
on three separate dates, so how do you view
that he's going to be eligible as a youthful
offender, being we have three separate dates?
And if you're going to argue for a youthful
offender, then you have to show remorse."

33

And, he goes, "Every time I've seen him
in court here, I haven't seen a whole lot of
remorse, because he doesn't act like it. The
way he's been acting, I don't know as though
he would."
And that's when I said, "Your Honor,
that's the whole reason why I brought in Dr.
Miller, and I presented testimony as to
mitigation. I brought in his school counselor
to show that he doesn't completely understand,
comprehend, the same way that a lot of other
people
do,
and
he
doesn't
completely
understand the ramifications of, how do I want
to say it, to be held accountable for his
actions. He doesn't comprehend it the way you
and I may."
And I went line by line, and that's the
whole
reason
for
having
this
guidance
counselor in school, and his [sic] Dr. Miller,
and having all the reports, and going to the
extent and length that I did.
. . . .
And that is what I did actually sidebar
with the Judge when Ms. Trudeau came back and
said, "Judge, he may, in fact, be eligible."
That was the whole purpose. We were up there
for an extensive period of time, literally,
going line by line through the Florida Rules
of Criminal Procedures [sic], to determine was
he eligible, and going through the components
of the youthful offender, and that was not on
the record.
Id. at 260-63. According to Davis, the trial judge was fully aware
of the criteria necessary for a youthful offender sentence. See id.
at 286-87. Given the trial court's credibility determination in
believing counsel's testimony over Ashley's sworn allegations,
Ashley's claims are wholly unsupported, and therefore must fail.

34

Assuming arguendo deficient performance by defense counsel,
Ashley has not shown any resulting prejudice. He has not shown a
"reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to trial."
Hill, 474 U.S. at 59. His ineffectiveness claims are without merit
since he has shown neither deficient performance nor resulting
prejudice. Accordingly, Ashley is not entitled to federal habeas
relief on grounds four and seven.
E. Grounds Five and Six
As grounds five and six, Ashley asserts that the trial court
lacked subject matter jurisdiction because the Information was not
based on sworn testimony of a material witness. See

Amended

Petition at 15-19. Respondents assert, see Response at 56, and this
Court agrees, that grounds five and six do not relate back to any
of the claims in the original Petition,18 and therefore are due to
be

dismissed

as

untimely.

Nevertheless,

for

purposes

of

the

foregoing analysis, this Court will assume Ashley timely filed the
claims.
Ashley raised the claims in his Rule 3.850 motion in state
court. See Resp. Ex. 9 at 9-15. The post-conviction court denied
the Rule 3.850 motion with respect to the claims, stating in
pertinent part:

18

See Mayle v. Felix, 545 U.S. 644 (2005)
35

In Grounds Three and Four, Defendant
alleges the Information was defective, thereby
divesting this Court of subject matter
jurisdiction. As to Ground Three, Defendant
specifically alleges that "no oath-bearing
affidavit
(testimony)
from
material
witness(es)" exists. According to Defendant,
this fatal defect deprived the trial court of
subject matter jurisdiction over his case. As
to Ground Four, Defendant alleges the charging
instrument
was
filed
in
violation
of
constitutional mandate and, therefore, failed
to invoke the jurisdiction of the court.
Specifically, Defendant alleges the prosecutor
knew
that
"no
oath
bearing
affidavit
(testimony) from material witness(es) existed,
[and] yet knowingly presented a fraudulent
charging instrument to invoke the jurisdiction
of the trial court." (Def.'s Mot. 13.)
Because these two grounds for relief are
related, this Court will consider them
together. Additionally, this Court notes that
Defendant's allegations as to Ground Three
appear to allege the lack of a sworn affidavit
from a material witness with regard to both
the arrest warrant and the Information. Out of
an abundance of caution, this Court will
address both matters.
As to Defendant's allegations in Ground
Three regarding the lack of a sworn affidavit
for the arrest warrant, such claims are
refuted by the record. Prior to issuance of
the arrest warrant in the instant case,
Detective T.W. Wildes tendered an affidavit
for arrest warrant, in which he made sworn
statements regarding the witness' statements.
(Ex. D.)[19] Based on this affidavit, the
arrest warrant was subsequently issued. (Ex.
E.)[20] Thus, the allegations in Ground Three
regarding the lack of a sworn affidavit for
the arrest warrant are denied.

19

See Resp. Ex. 10 at 190.

20

See Resp. Ex. 10 at 191.
36

As to the allegations in Grounds Three
and Four regarding the lack of a sworn
affidavit
for
the
Information
and
the
resulting jurisdictional implications, these
claims are also refuted by the record. By
pleading guilty, a defendant waives any
technical defects in the information. See Fla.
R. Crim. P. 3.140(o), 3.l90; see also Colson
v. State, 717 So.2d 554, 555 (Fla. 4th DCA
1998)("A defendant waives a defect in the
information if he fails to object before
pleading to the substantive charges."); Asmer
v. State, 416 So.2d 485, 487 (Fla. 4th DCA
1982). Further, "[w]here a defendant waits
until after the State rests its case to
challenge the propriety of an indictment [or
information], the defendant is required to
show not that the indictment [or information]
is technically defective, but that it is so
fundamentally defective that it cannot support
a judgment of conviction." Ford v. State, 802
So.2d 1121, 1130 (Fla. 2001) (emphasis added);
State v. Burnette, 881 So.2d 693, 694 (Fla.
1st DCA 2004)[.]
In
the
instant
case,
the
Amended
Information properly charged Defendant with
two counts of Armed Robbery, and one count of
Armed Burglary.[21] That is, the Amended
Information contained a sufficiently detailed
allegation of the essential elements of the
respective
charges,
including
specific
references to the appropriate sections of the
criminal code, Defendant's name, and the time
and place of the commission of the offenses.
(Ex. F.) Therefore, the Amended Information
was not fundamentally defective, and properly
conferred subject matter jurisdiction upon the
trial court. See Fla. R. Crim. P. 3.140(o)
("No ... information ... shall be dismissed
... unless ... [it is] so vague, indistinct,
and indefinite as to mislead the accused and
embarrass him or her in the preparation of a
defense or expose the accused after conviction
or acquittal to substantial danger of a new

21

See Resp. Ex. 1 at 39-40, Amended Information.
37

prosecution
Accordingly,
denied.

for
the
same
offense.")
Grounds Three and Four are

Resp. Ex. 10 at 165-67 (emphasis deleted). On appeal, Ashley filed
a pro se brief, see Resp. Ex. 11 at 8-12; the State filed an answer
brief, see Resp. Ex. 12 at 30-32; and the appellate court affirmed
the court's denial of post-conviction relief per curiam, see Resp.
Ex. 13.
In its appellate brief, the State addressed the claims on the
merits, see Resp. Ex. 12 at 30-32, and therefore, the appellate
court may have affirmed Ashley's conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claims is entitled to deference under
AEDPA. After a review of the record and the applicable law, the
Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly established federal
law.

Nor

was

the

state

court's

adjudication

based

on

an

unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.

Accordingly, Ashley is

not entitled to relief on the basis of these claims.
Moreover,

even

assuming

the

state

appellate

court's

adjudication of the claims is not entitled to deference, Ashley's
claims are still without merit. The claims present issues purely of
state law not cognizable on federal habeas review. The purpose of

38

a federal habeas proceeding is to review the lawfulness of Ashley's
custody to determine whether that custody is in violation of the
Constitution or laws or treaties of the United States. Coleman v.
Thompson, 501 U.S. 722 (1991). Ashley's conviction and sentence do
not violate the Constitution or laws or treaties of the United
States.
For a defective Information to be a cognizable claim in a
federal habeas corpus action, the charging document must be so
defective that it deprives the court of jurisdiction. DeBenedictis
v. Wainwright, 674 F.2d 841, 842 (11th Cir. 1982) (citations
omitted) ("The sufficiency of a state indictment or information is
not properly the subject of federal habeas corpus relief unless the
indictment or information is so deficient that the convicting court
is deprived of jurisdiction."). Under Florida law, the state
circuit courts have jurisdiction over all felonies. See Fla. Stat.
§ 26.012(2)(d). Moreover, the Information in Ashley's case named
Ashley; described the dates and locations of the offenses; stated
the statutory basis for each offense; and properly set forth the
elements of armed robbery and armed burglary. See Resp. Ex. 1 at
39-40. It therefore met the minimum requirements for invoking the
jurisdiction

of

the

state

circuit

court.

Additionally,

the

Information contained the required sworn oath of the Assistant
State Attorney, certifying that the allegations in the Information
"are based upon facts that have been sworn to as true, and which,

39

if true, would constitute the offense therein charged," that the
prosecution is instituted "in good faith," and that the facts are
"based on testimony of material witnesses." Id. Such a sworn oath
by the prosecutor that he received testimony under oath from the
material witnesses for the offenses is sufficient pursuant to
applicable

Florida

law.

See

Fla.

R.

Crim.

P.

3.140(g).22

Undoubtedly, the trial court had subject matter jurisdiction over
Ashley's case since the Information charged him with armed robbery
and armed burglary, both felonies, in violation of Florida Statutes
sections

812.13(2)(a)

and

810.02(2)(b).

Thus,

Ashley

is

not

entitled to federal habeas relief on grounds five and six.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Ashley seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this

22

Florida Rule of Criminal Procedure 3.140(g) provides:
Signature,
Oath,
and
Certification;
Information. An information charging the
commission of a felony shall be signed by the
state attorney, or a designated assistant
state attorney, under oath stating his or her
good faith in instituting the prosecution and
certifying that he or she has received
testimony under oath from the material witness
or witnesses for the offense.
40

substantial showing, Ashley "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)).
Where

a

constitutional

district
claims

court
on

the

has

rejected

merits,

the

a petitioner's
petitioner

must

demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Amended Petition (Doc. 8) is DENIED, and this action

is DISMISSED WITH PREJUDICE.

41

2.

The Clerk of the Court shall enter judgment denying the

Amended Petition and dismissing this case with prejudice.
3.

If Ashley appeals the denial of the Amended Petition, the

Court denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this
case. Such termination shall serve as a denial of the motion.
4.

The Clerk of the Court is directed to close this case and

terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of
November, 2017.

sc 11/14
c:
Antwain D. Ashley, FDOC #J34708
Counsel of Record

42