Lee v. Secretary, Department of Corrections et al
Filing
14
ORDER denying the Petition 1 and dismissing this case with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 11/21/2017. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
VALENTINO BERNARD LEE,
Petitioner,
v.
Case No. 3:15-cv-112-J-34JBT
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Valentino Bernard Lee, an inmate of the Florida
penal system, initiated this action on January 29, 2015, pursuant
to the mailbox rule, by filing a pro se Petition for Writ of Habeas
Corpus (Petition; Doc. 1) under 28 U.S.C. § 2254. In the Petition,
Lee challenges a 2011 state court (Duval County, Florida) judgment
of
conviction
for
burglary
of
a
structure
or
conveyance.
Respondents have submitted a memorandum in opposition to the
Petition. See Respondents' Answer to Petition for Writ of Habeas
Corpus (Response; Doc. 10) with exhibits (Resp. Ex.). On May 1,
2015, the Court entered an Order to Show Cause and Notice to
Petitioner (Doc. 6), admonishing Lee regarding his obligations and
giving Lee a time frame in which to submit a reply. Lee submitted
briefs in reply. See Petitioner's Answer (Doc. 12); Amended Answer
(Doc. 13). This case is ripe for review.
II. Procedural History
On July 29, 2010, the State of Florida charged Lee with
burglary of a structure or conveyance (count one). See Resp. Ex. 3,
Amended Information. On April 27, 2011, Lee entered a guilty plea
to the burglary charge. See Resp. Exs. 5; 6, Transcript of the Plea
Proceeding (Plea Tr.). In handwritten letters addressed to the
trial court, see Resp. Exs. 7; 9A; 9B, Lee expressed his desire to
withdraw his plea and obtain additional discovery. With the benefit
of conflict counsel, Lee filed a motion to withdraw his guilty plea
pursuant to Florida Rule of Criminal Procedure 3.170(f) on June 27,
2011. See Resp. Ex. 8. The court held an evidentiary hearing on
August 3, 2011. See Resp. Ex. 10, Transcript of the Evidentiary
Hearing (EH Tr.). On August 11, 2011, the court denied his motions
to withdraw the plea. See Resp. Ex. 12. Lee submitted another
handwritten letter to the court on August 29, 2011. See Resp. Ex.
13. On August 30, 2011, the court sentenced Lee to a term of
imprisonment of ten years. See Resp. Exs. 14, Transcript of the
Sentencing Hearing (Sentencing Tr.) at 11-12; 16, Judgment.
On direct appeal, Lee, with the benefit of counsel, filed an
initial brief, arguing that the trial judge abused her discretion
when she denied Lee's motions to withdraw his plea. See Resp. Ex.
18. The State filed an answer brief. See Resp. Ex. 19. On August
23,
2012,
the
appellate
court
affirmed
Lee's
conviction
and
sentence per curiam, see Lee v. State, 103 So.3d 149 (Fla. 1st DCA
2
2012); Resp. Ex. 20, and the mandate issued on January 10, 2013,
see Resp. Ex. 20.
Lee filed pro se motions for post-conviction relief pursuant
to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motions) on
November 30, 2012, see Resp. Ex. 21, March 1, 2013, see Resp. Ex.
22, and August 1, 2013, see Resp. Ex. 23. In his Rule 3.850
motions,
Lee
asserted
that
counsel
(Scott
D.
Leemis)
was
ineffective because he failed to file a motion to dismiss and a
motion to conduct an adversary preliminary hearing (ground six). He
also stated that the court promised to sentence him to no more than
ten years of imprisonment for both cases (the instant case, 2010CF-739, and his other case, 2010-CF-3684).1 On December 16, 2013,
the court denied his Rule 3.850 motions. See Resp. Ex. 24. On
appeal, Lee filed a pro se initial brief, see Resp. Ex. 26, and the
State filed its notice that it did not intend to file an answer
brief, see Resp. Ex. 27. On May 23, 2014, the appellate court
affirmed the court's denial of post-conviction relief per curiam,
see Lee v. State, 141 So.3d 185 (Fla. 1st DCA 2014); Resp. Ex. 28,
1
Lee asserted that counsel was ineffective in case number
2010-CF-3684 because he failed to: interview and depose Gussie Lee,
a key exculpatory witness (ground one); retrieve and investigate
the victim's phone records (ground three), and cell phone messages
that the victim left on Lee's cell phone (ground two); file a
motion to dismiss and a motion to conduct an adversary preliminary
hearing (ground four); and conduct a reasonable pretrial
investigation (ground five).
3
and later denied Lee's motion for rehearing, see Resp. Ex. 29. The
mandate issued on July 23, 2014. See Resp. Ex. 28.
During the pendency of the post-conviction proceedings, on May
10, 2013, Lee filed a pro se petition for writ of habeas corpus.
See Resp. Ex. 30. In the petition, Lee asserted that the State
failed to establish probable cause for his arrest and committed
manifest error because the State failed to file an information
within twenty-one days of his arrest; he also stated that his plea
was not voluntary. The circuit court denied the petition on January
16, 2014. See Resp. Ex. 31. On appeal, Lee filed a pro se initial
brief, see Resp. Ex. 33, and the State filed its notice that it did
not intend to file an answer brief, see Resp. Ex. 34. On May 1,
2014, the appellate court affirmed the court's denial of postconviction relief per curiam, see Lee v. State, 139 So.3d 304 (Fla.
1st DCA 2014); Resp. Ex. 35, and later denied Lee's motion for
rehearing, see Resp. Ex. 36. The mandate issued on June 25, 2014.
See Resp. Ex. 35. On August 13, 2014, Lee filed a pro se notice to
invoke discretionary jurisdiction. See Resp. Ex. 37. The Florida
Supreme Court dismissed the petition for lack of jurisdiction on
August 26, 2014. See Resp. Ex. 38.
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).
4
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
of this case are fully developed in the record before the Court.
Because this Court can "adequately assess [Lee'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.
5
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,
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).2 Thus, the
state court need not issue an opinion explaining its rationale in
2
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.
6
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
"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
7
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
3
conclusion in the first instance.'"[ ] 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), 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)).
3
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
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
1239; see Butts v. GDCP Warden, 850 F.3d 1201, 1204 (11th Cir.
2017), petition for cert. filed, No. 17-512 (Sept. 29, 2017).4
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
4
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.
9
the merits "the benefit of the doubt,"
Renico,[5] 559 U.S. at 773, 130 S.Ct. 1855
(quoting Visciotti,[6] 537 U.S. at 24, 123
S.Ct. 357), and presume that it "follow[ed]
the law," Donald,[7] 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
(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 Lee'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
5
Renico v. Lett, 559 U.S. 766 (2010).
6
Woodford v. Visciotti, 537 U.S. 19 (2002).
7
Woods v. Donald, 135 U.S. 1372 (2015).
10
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
different.[8] 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
8
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).
11
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.
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
12
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).
VI. Findings of Fact and Conclusions of Law
A. Ground One
As
ground
one,
Lee
asserts
that
he
involuntarily
and
unintelligently entered his guilty plea.9 See Petition at 5. He
states:
9
Lee's claim is not an ineffective-assistance-of-counsel
claim under Strickland v. Washington, 466 U.S. 668 (1984). See
Petition at 5-7; Response at 22 n.8.
13
Petitioner was charged in two separate cases.
In the first case,[10] which is not at issue
here, he was charged with armed burglary with
assault or battery, possession of a firearm by
a convicted felon, and aggravated assault with
a deadly weapon. In the second case, the one
at bar, Petitioner was charged with burglary
of a structure or conveyance. On 4/27/11
Petitioner pleaded guilty to all counts in
both cases. At the time of entering his pleas,
Petitioner had not been permitted to review
discovery materials, did not have time to
fully consult with counsel, and was relying on
defense counsel's representations in deciding
to enter his pleas. As a result, Petitioner
entered
his
[plea
without
fully
understanding11] the significance of his plea,
or the available alternatives. If Petitioner
would have been properly advised by defense
counsel as to available defenses, that he was
pleading to all offenses, or that he would
receive such a harsh sentence as a habitual
offender, he would not have entered pleas of
guilty but instead [would have] insisted on
proceeding to trial.
Id. at 5-6. Lee raised this claim in his pro se and counseled
motions to withdraw the plea, see Resp. Exs. 7; 8, and the trial
court held an evidentiary hearing on the issue, see EH Tr., at
which Lee and Leemis (Lee's counsel who represented him at the time
10
Lee entered a plea of guilty in Duval County circuit court
case number 2010-CF-3684 to armed burglary with assault or battery
upon Cassandra Mae Bennett (count one), possession of a firearm by
a convicted felon (count two), and aggravated assault of Charles
Augustus Smith with a deadly weapon (count three). See Resp. Ex.
39; Plea Tr. at 4-5; Sentencing Tr. at 5, 12. In a separate action
pending before this court, he seeks federal habeas relief from the
judgment of conviction and sentence in that case. See Case No.
3:15-cv-113-J-34JBT.
11
See Resp. Ex. 8 at 2, ¶ 8.
14
of the plea) testified. The trial court denied the motions, stating
in pertinent part:
This cause came on to be heard on August
3, 2011 on Defendant's Pro-Se Motion to
Withdraw Plea of Guilty filed on June 6, 2011
by Defendant and his conflict-free counsel's
Motion to Withdraw Plea of Guilty filed on
June 27, 2011. Prior to the hearing, the Court
reviewed both Motions and found many of
Defendant's assertions were refuted by the
record (Defendant's Plea of Guilty form and
the transcript of Defendant's Plea Colloquy
from April 27, 2011).[12] The Court found the
hearing would be limited to those issues not
clearly and conclusively refuted by the
record: that Defendant had not received
discovery; that Defendant was misled and
misinformed as to the facts surrounding his
case; and, that Defendant was unable to
adequately review the documents in his
case.[13]
The Court having reviewed both motions,
having heard the testimony of Scott Leemis,[14]
Esquire who represented Defendant at the time
of his plea, and for fifteen (15) months prior
to his plea and the testimony of the
Defendant,[15] having observed the demeanor of
the witnesses and evaluated their credibility
and relied upon those observations and
evaluations in determining the facts of this
case, having reviewed the Plea of Guilty form
and the Plea Colloquy, having heard the
arguments of counsel,[16] having reviewed the
relevant rules, statutes and case law, and
being fully advised in the premises finds:
12
See EH Tr. at 11-26.
13
See EH Tr. at 21-23, 25.
14
See EH Tr at 27-37.
15
See EH Tr. at 38-62.
16
See EH Tr. at 63-70.
15
Defendant's plea was knowingly and
voluntarily made with a full understanding of
the consequences of his plea, Defendant had
adequate time to consult with counsel,
Defendant was aware of the charges to which he
was pleading guilty, Defendant was not misled
or misinformed as to the charges and facts
surrounding his case and Defendant was not
manipulated into pleading to all charges.
Further, there was no good cause shown by
Defendant.
Resp. Ex. 12 at 1-2. On appeal, Lee argued that the trial judge
abused her discretion when she denied Lee's motion to withdraw his
plea; see Resp. Ex. 18; the State filed an answer brief, see Resp.
Ex. 19; and the appellate court affirmed Lee's conviction and
sentence per curiam, see Lee, 103 So.3d 149; Resp. Ex. 20.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. 19 at 13-19, and therefore, the appellate
court may have affirmed Lee'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, Lee is not
entitled to relief on the basis of this claim.
16
Moreover,
even
assuming
the
state
appellate
court's
adjudication of the claim is not entitled to deference, Lee's
claim, nevertheless, is without merit.
In the instant case, Lee
signed the Plea of Guilty form, see Resp. Ex. 5, and acknowledged
at the April 27, 2011 plea hearing that counsel had reviewed the
form with him and answered his questions, see Plea Tr. at 9. The
following colloquy ensued.
THE COURT: Okay. Mr Lee, your attorney
has indicated you wish to enter a plea of
guilty today in Case No. 2010-739 to the
charge of burglary to a structure or
conveyance; is that correct?
THE DEFENDANT: Yes, ma'am.
. . . .
THE COURT: Is that what you wish to do,
to enter pleas of guilty?[17]
THE DEFENDANT: Yes, ma'am.
THE COURT: On the burglary to the
structure or conveyance in Case No. 2010-739,
as an habitual offender, the maximum penalty
you would be looking at would be ten years in
prison. That is a third-degree felony.
In Case No. 2010-3684, the state has
agreed to withdraw ....
[PROSECUTOR]: Actually, I don't think we
ever even filed the PRR [(prison releasee
reoffender)] notice.
THE COURT: Okay, would not file, sorry,
the prison releasee reoffender notice, which
17
As previously noted, Lee also entered a plea of guilty in
case number 2010-CF-3684 to three charges.
17
would subject you to mandatory time. However,
on count 1, an armed burglary with assault or
battery, that is a first-degree felony
punishable by life in prison –[PROSECUTOR]: That's correct, Your Honor.
THE COURT: -- and as an habitual
offender, of course, you would face life in
prison.
Count 2, possession of a firearm by
convicted felon is a second-degree felony. You
would face the maximum penalty of 30 years in
prison. And is there a minimum mandatory?
[PROSECUTOR]: There is, Your Honor, three
years.
THE COURT: And there is a three-year
minimum mandatory on that charge.
And on count 3, aggravated assault with a
deadly weapon, that is a third-degree felony.
You would face the maximum penalty of ten
years in prison with a three-year minimum
mandatory. Do you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: Do you also understand there
is no agreement other than the fact that the
state has agreed not to file the prison
releasee reoffender notice, there is no other
agreement as to what your sentence will be? I
will order a presentence investigation report
and pass your case approximately 30 days to
get that report. And at sentencing both you
and your attorney as well as the state can
present whatever evidence and witnesses you
wish the Court to consider to formulate an
appropriate sentence. Do you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: And no one has promised you a
specific sentence; is that correct?
18
THE DEFENDANT: No, ma'am.
. . . .
THE COURT: Has anyone threatened you,
coerced you, or made you any promises?
THE DEFENDANT: No, ma'am.
. . . .
THE COURT: By entering a plea of guilty
in each case, you are acknowledging that you
are in fact guilty of all four charges; is
that correct?
THE DEFENDANT: Yes, ma'am.
. . . .
THE COURT: And did Mr. Leemis go over the
plea forms with you?
THE DEFENDANT: Yes, ma'am.
THE COURT: Did he
questions that you had?
answer
all
of
the
THE DEFENDANT: Yes, ma'am.
THE COURT: Do you have any other
questions that you need to ask your attorney
or the Court?
THE DEFENDANT: Not at this time.
. . . .
THE COURT: Okay. But are you fully
satisfied with your attorney's representation?
THE DEFENDANT: Yes, ma'am.
THE COURT: Can you recite a brief factual
basis for each case.
. . . .
19
[PROSECUTOR]: ... The second case,
section -– excuse me, clerk No. 16-2010-CF00739, Your Honor, the state is prepared to
prove that this defendant along with the
codefendant, Justin Vogelsong went into a wood
yard owned by Simpco Wood and stole a large
aluminum fuel tank. The yard was enclosed with
a fence and had numerous small buildings and
sheds on the premises. He then loaded the tank
into a vehicle and drove that vehicle down a
bike path, and witnesses caught up to the
defendants at a stoplight and they agreed to
actually take the tank back to the scene,
contrary to Section 810.02[(4)], Florida
Statutes.[18]
THE COURT: Any legal exceptions
objections to the factual basis?
or
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: I do find there is a factual
basis for the entry of your pleas and that
they are freely and voluntarily entered with a
full
understanding
of
the
nature
and
consequences of your pleas. I will accept your
pleas.
18
Florida Statutes section 810.02(4) provides:
Burglary is a felony of the third degree,
punishable as provided in s. 775.082, s.
775.083, or s. 775.084, if, in the course of
committing the offense, the offender does not
make an assault or battery and is not and does
not become armed with a dangerous weapon or
explosive, and the offender enters or remains
in a:
(a) Structure, and there is not another person
in the structure at the time the offender
enters or remains; or
(b) Conveyance, and there is not another
person in the conveyance at the time the
offender enters or remains.
20
Plea Tr. at 4-11.
The standard for determining the validity of a guilty plea is
"whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant."
North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v.
Alabama, 395 U.S. 238, 242 (1969). Since a guilty plea is a waiver
of substantial constitutional rights, it must be a voluntary,
knowing, and intelligent act "done with sufficient awareness of the
relevant circumstances and likely consequences" surrounding the
plea. Brady v. United States, 397 U.S. 742, 748 (1970) (footnote
omitted).
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
21
the charges against him, understands the consequences of a guilty
plea, and voluntarily chooses to plead guilty, without being
coerced to do so, the guilty plea ... will be upheld on federal
review." Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir. 1991).
Lee
acknowledged
that
he
understood
the
burglary
charge
against him in case number 2010-CF-739, the constitutional rights
he was forfeiting, that he was not pleading guilty because of any
coercion, threats, or promises, and that he was guilty of the
crime. After observing Lee and assessing his credibility at the
plea
hearing,
the
trial
court
accepted
his
guilty
plea
as
voluntarily and intelligently made, and not the result of any
force, threat, coercion, or promise. The record supports the trial
court's decision. Thus, Lee is not entitled to federal habeas
relief on ground one.
B. Ground Two
As ground two, Lee asserts that counsel was ineffective
because he failed to file a motion pursuant to Florida Rule of
Criminal Procedure 3.133. See Petition at 8. He states:
The trial court was without subject
matter jurisdiction where charging document
[was] not filed within time limitations
prescribed by state law.
The Petitioner was arrested on this case
on January 19, 2010. No information or
indictment was filed until 40 day[s] after his
arrest. Under Florida law[,] the Petitioner
was to have been released on his own
recognizance when no charging document was
filed within the time limitations set forth by
22
Florida Rule of Criminal Procedure 3.133. This
rule, however[,] was not self executing and
required that the defense attorney so move the
court. Defense counsel neglected to do so.
Since there can be no strategic or tactical
reason
why
counsel
failed
to
effect
Petitioner's release, it is apparent on the
face of the record that Petitioner was not
being represented by effective counsel. It is
Petitioner's contention that it was at that
point in time that the court was divested of
jurisdiction to proceed until such time when
Petitioner was being represented by competent
counsel, as guaranteed by the Sixth Amendment.
The
record,
however,
reflects
no
such
indication. Because the trial court was
without jurisdiction[,] the present judgment
of conviction must be vacated and set aside.
Id. at 8-9. He raised the ineffectiveness claim in his Rule 3.850
motion in state court. See Resp. Ex. 22 at 24-25. The postconviction court ultimately denied the Rule 3.850 motion with
respect to the claim, stating in pertinent part:
Grounds Four and Six of Defendant's March
7, 2013 Motion assert that in case numbers
2010-CF-00739 and 2010-CF-03684, respectively,
counsel was ineffective for failing to file a
motion to conduct an adversary preliminary
hearing pursuant to Florida Rule of Criminal
Procedure 3.133(b)(1)[19] and/or a motion to
dismiss pursuant to Section 907.045, Florida
19
Florida Rule of Criminal Procedure 3.133(b)(1) provides:
A defendant who is not charged in an
information or indictment within 21 days from
the date of arrest or service of the capias on
him or her shall have a right to an adversary
preliminary hearing on any felony charge then
pending against the defendant. The subsequent
filing of an information or indictment shall
not eliminate a defendant's entitlement to
this proceeding.
23
Statutes. Defendant maintains that counsel's
failure to make such motions in his cases
constitutes ineffective assistance of counsel
because the State did not file an information
or indictment against Defendant for more than
twenty-one (21) days following his arrest.
However, this Court finds that since Defendant
cannot establish that counsel's performance
prejudiced his defense, this claim is without
merit. See Strickland, 466 U.S. at 687.
A motion for an adversary preliminary
hearing is governed by Florida Rule of
Criminal Procedure 3.133(b). Under that Rule,
a defendant who is not charged by an
information or indictment within 21 days from
the date of arrest shall have a right to an
adversary preliminary hearing on any felony
charge then pending against the defendant. If
the adversary preliminary hearing finds that
probable cause exists to believe that an
offense has been committed, section (b)(5)
provides that the defendant is to be held to
answer in the circuit court. In the event that
probable cause is not established at the
hearing, the defendant is "released on
recognizance" subject to the condition that
the defendant appear at all proceedings. Fla.
R. Crim. Proc. 3.133(b)(5). Such release does
not void further prosecution by information or
indictment. Id.
Thus, in the instant case, even if
defense counsel had moved for an adversary
preliminary hearing and a finding of no
probable cause was made, Defendant would not
have been entitled to a dismissal of the
charges. Instead, Defendant would simply have
been released on his own recognizance until
such time that he was held to answer for the
charges in court. See White v. State, 62 So.3d
1156, 1157 (Fla. 3d DCA 2011); Fla. R. Crim.
P. 3.l33(b)(5); State v. Brooks, 388 So.2d
1291 (Fla. 3d DCA 1980). Defendant did not
establish that the result of his proceedings
would have been different if a finding of no
probable cause was even made. Therefore,
Defendant has failed to show the necessary
24
prejudice
to
prevail
on
Strickland, 466 U.S. at 687.
this
claim.
Defendant's claim of ineffective counsel
based on counsel's failure to file a motion to
dismiss pursuant to Section 907.045, Florida
Statutes, is without merit because Defendant
similarly
fails
to
show
the
necessary
prejudice. Pursuant to section 907.045,
Florida Statutes, a defendant who is in
custody may move to dismiss the indictment,
information or affidavit and a defendant who
has been confined for thirty (30) days after
his or her arrest without a trial shall be
allowed
a
preliminary
hearing
upon
application. § 907.045, Fla. Stat. However,
the "procedure of hearing a case preliminarily
is not a step in due process of law, is not a
prerequisite to a criminal prosecution for the
filing of an indictment. It serves only to
determine whether or not probable cause exists
to hold a person for trial ... and a
prosecution may be instituted and maintained
regardless of such an investigation." Evans v.
State, 197 So. 2d 323 (Fla. 3d DCA 1967)
(citing Baugus v. State, 141 So.2d 264, 267
(Fla. 1962)). In this case, Defendant has
failed to show that the outcome of his
proceedings would have been different and,
therefore, the necessary prejudice in order to
prevail on this claim. Strickland, 466 U.S. at
687.
Resp. Ex. 24 at 12-13. The appellate court affirmed the court's
denial of post-conviction relief per curiam, and later denied Lee's
motion for rehearing.
To the extent that the state appellate court affirmed the
trial court's denial on the merits, the Court will address the
claim in accordance with the deferential standard for federal court
review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court's
25
adjudication of the claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. Thus, Lee is not entitled to relief on
the basis of the claim.
Moreover, even if the state appellate court's adjudication of
the claim is not entitled to deference, Lee's claim is nevertheless
without merit. Assuming arguendo deficient performance by defense
counsel, Lee 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, Lee acknowledged
that he pled guilty because he was in fact guilty of the charge.
Additionally, the State's evidence against him was substantial, and
the court found that there was a factual basis for the plea.
Accordingly, Lee is not entitled to federal habeas relief on the
ineffectiveness claim in ground two.
Insofar as Lee asserts that the trial court lacked subject
matter jurisdiction because the State failed to file an information
within twenty-one days of his arrest, the claim is without merit.
The purpose of a federal habeas proceeding is to review the
lawfulness of Lee's custody to determine whether that custody is in
violation of the Constitution or laws or treaties of the United
26
States. See 28 U.S.C. § 2254.20 The claim presents an issue purely
of state law not cognizable on federal habeas review. Undoubtedly,
the trial court had subject matter jurisdiction over Lee's case
since the Information charged him with burglary of a structure or
conveyance, a felony, in violation of Florida Statutes section
810.02(4).
Lee's
conviction
and
sentence
do
not
violate
the
Constitution or laws or treaties of the United States. Therefore,
Lee is not entitled to federal habeas relief on ground two.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Lee seeks issuance of a certificate of appealability, the
undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Lee "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
20
Section 2254(a) of Title 28 provides that "a district court
shall entertain an application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State
court" upon a showing that his custody is in violation of the
Constitution or laws of the United States.
27
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 Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
3.
If Lee appeals the denial of the Petition, the Court
denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any
28
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 21st day of
November, 2017.
sc 11/21
c:
Valentino Bernard Lee, FDOC #833559
Counsel of Record
29
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