Erke v. Secretary, Florida Department of Corrections et al

Filing 16

ORDER denying 1 Petition for writ of habeas corpus filed by Nathaniel Erke; dismissing case with prejudice. The Clerk of the Court is directed to enter judgment in accordance with this Order and close the file. The Court denies a certificate of appealability. Signed by Judge Marcia Morales Howard on 4/12/2018. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

NATHANIEL ERKE,
Petitioner,
v.

Case No. 3:15-cv-493-J-34MCR

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Nathaniel Erke, an inmate of the Florida penal
system, initiated this action on April 20, 2015, by filing a pro se
Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254. In the Petition, Erke challenges a 2010 state court
(Duval County, Florida) judgment of conviction for armed burglary
and two counts of armed robbery. Respondents have submitted a
memorandum in opposition to the Petition. See Respondents' Answer
in Response to Order to Show Cause and Petition for Writ of Habeas
Corpus (Response; Doc. 10) with exhibits (Resp. Ex.). On September
3, 2015, the Court entered an Order to Show Cause and Notice to
Petitioner (Doc. 5), admonishing Erke regarding his obligations and
giving Erke a time frame in which to submit a reply. Erke submitted
a brief in reply. See Petitioner's Reply to Respondents' Answer
Brief (Reply; Doc. 11). This case is ripe for review.

II. Procedural History
On March 25, 2009, the State of Florida charged Erke with
armed burglary (count one) and armed robbery (counts two and
three). See Resp. Ex. A at 15-16, Information. On February 25,
2010, Erke entered a guilty plea to all three charges. See id. at
42-43, 107-18, Transcript of the Plea Proceeding (Plea Tr.). On
April 7, 2010, the court sentenced Erke to a term of imprisonment
of thirty-five years on each count, to run concurrently with each
other. See id. at 44-50, 147-205, Transcript of the Sentencing
Hearing (Sentencing Tr.).
On direct appeal, Erke, with the benefit of counsel, filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967). See
Resp. Ex. B. Erke filed a pro se brief, arguing that (1) the trial
court should have appointed conflict-free counsel to advise him
about his motion to withdraw the plea; (2) counsel misadvised him
about the sentencing possibilities; (3) the trial court erred when
it struck his pro se motion to withdraw the plea as a nullity due
to representation when he asserted an adversarial relationship with
counsel; (4) the trial court committed fundamental error when it
imposed a vindictive sentence; (5) he was not fully aware of the
consequences of his plea; (6) he was led to expect a lenient
sentence that was similar to his co-defendants' sentences; (7) the
trial court erred when it accepted his plea without the State
identifying its evidence; (8) the court accepted his plea when he

2

continued to maintain his innocence; and (9) the court failed to:
(a) consider the benefits of a youthful offender sentence, and (b)
provide reasons for not sentencing him under the youthful offender
guidelines. See Resp. Ex. E. On September 23, 2011, the appellate
court affirmed Erke's conviction and sentence per curiam, see Resp.
Ex. F, and later denied his motion for rehearing on December 5,
2011, see Resp. Exs. G; H. The mandate issued on December 21, 2011.
See Resp. Ex. I.
On December 14, 2011, Erke filed a pro se motion for reduction
or modification of sentence pursuant to Florida Rule of Criminal
Procedure 3.800(c). See Resp. Ex. J. The court denied the motion on
January 11, 2012. See Resp. Ex. K.
On April 11, 2012, Erke filed a pro se motion for post
conviction relief pursuant to Florida Rule of Criminal Procedure
3.850 (Rule 3.850 motion). See Resp. Ex. L at 5-32. In his request
for post-conviction relief, he asserted that counsel (Michael
Bossen) was ineffective because he failed to: challenge Erke's
sentence on the basis of bias, prejudice, vindictiveness, and/or
disparity (ground one); procure a sentencing cap prior to the open
plea (ground four); and move to disqualify the sentencing judge
(ground five). Additionally, he stated that counsel was ineffective
because he advised him to reject the State's plea offer for 9.2
years

(ground

three).

He

also

asserted

that

his

plea

was

involuntary because he relied on counsel's advice that the open

3

plea would result in a youthful offender sentence (ground two). On
September 28, 2012, the circuit court denied his Rule 3.850 motion.
See id. at 35-82. Erke filed an appellate brief, see Resp. Ex. M,
and the State filed a notice that it did not intend to file an
answer brief, see Resp. Ex. N. On February 14, 2013, the appellate
court affirmed the court's denial of post-conviction relief per
curiam, see Resp. Ex. O, and later denied his motion for rehearing,
see Resp. Exs. P; Q. The mandate issued on April 18, 2013. See
Resp. Ex. R.
On August 8, 2013, Erke filed a pro se petition for writ of
habeas corpus. See Resp. Ex. S. In the petition, he asserted that
counsel was ineffective because he failed to raise the following
issues on direct appeal: (1) the sentencing judge violated Erke's
right to due process when he commented on the truthfulness of
Erke's testimony and other impermissible factors upon which the
sentence was based; (2) the sentencing judge abused his discretion
and committed fundamental error when he imposed a vindictive
sentence; (3) counsel advised him to reject the State's plea offer
of 110 months (9.2 years); (4) counsel misadvised him when he told
him that either a youthful offender sentence of no more than six
years, or a non-prison sanction would be possibilities during
sentencing, and failed to inform him that the trial court would
have to find a specific reason for a downward departure; (5) the
trial court erred when it denied his pro se motion to withdraw the

4

plea without appointing conflict-free counsel to advise him; and
(6) a successor judge improperly sentenced him. The appellate court
directed the State to respond to grounds two and six. See Resp.
Exs. T; V. The State responded, see Resp. Exs. U; W, and Erke filed
a reply, see Resp. Ex. X. On December 2, 2014, the appellate court
denied the petition on the merits, see Resp. Ex. Y, and later
denied Erke's motions for rehearing, see Resp. Exs. Z; AA; BB.
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 [Erke'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,
1285 (11th Cir. 2016). Regardless of whether the last state court

6

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
"contrary to" clause and an "unreasonable
application" clause. The "contrary to" clause

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

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), cert. denied, 138 S.Ct 925 (2018).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.,
876 F.3d 1039. 1053 (11th Cir. 2017) (quoting Richter, 562 U.S. at
102). Thus, to the extent that Erke's claims were adjudicated on
the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).
B. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before
bringing a § 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for challenging
his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust
state remedies, the petitioner must "fairly present[]" every issue
raised in his federal petition to the state's highest court, either
on direct appeal or on collateral review. Castille v. Peoples, 489
U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust
a claim, "state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one
complete

round

of

the

State's

established

appellate

review

process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court
explained:
Before seeking a federal writ of habeas
corpus,
a
state
prisoner
must
exhaust
available
state
remedies,
28
U.S.C.
§
2254(b)(1), thereby giving the State the
"'"opportunity to pass upon and correct"
alleged violations of its prisoners' federal
11

rights.'" Duncan v. Henry, 513 U.S. 364, 365,
115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S.
270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the
necessary "opportunity," the prisoner must
"fairly present" his claim in each appropriate
state court (including a state supreme court
with powers of discretionary review), thereby
alerting that court to the federal nature of
the claim. Duncan, supra, at 365-366, 115
S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S.
838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1
(1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a potential
bar to federal habeas review. The United States Supreme Court has
explained the doctrine of procedural default as follows:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are
accorded
the
finality
and
respect
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman,[7] supra, at 747–748, 111 S.Ct.
2546; Sykes,[8] supra, at 84–85, 97 S.Ct. 2497.
A state court's invocation of a procedural
rule to deny a prisoner's claims precludes
federal review of the claims if, among other

7

Coleman v. Thompson, 501 U.S. 722 (1991).

8

Wainwright v. Sykes, 433 U.S. 72 (1977).
12

requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. --, --, 131 S.Ct. 1120,
1127–1128, 179 L.Ed.2d 62 (2011); Beard v.
Kindler, 558 U.S. --, --, 130 S.Ct. 612,
617–618, 175 L.Ed.2d 417 (2009). The doctrine
barring procedurally defaulted claims from
being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). Thus, procedural
defaults

may

be

excused

under

certain

circumstances.

Notwithstanding that a claim has been procedurally defaulted, a
federal court may still consider the claim if a state habeas
petitioner can show either (1) cause for and actual prejudice from
the default; or (2) a fundamental miscarriage of justice. Ward v.
Hall, 592 F.3d 1144, 1157 (11th Cir. 2010); In Re Davis, 565 F.3d
810, 821 (11th Cir. 2009). In order for a petitioner to establish
cause,
the procedural default "must result from some
objective factor external to the defense that
prevented [him] from raising the claim and
which cannot be fairly attributable to his own
conduct." McCoy v. Newsome, 953 F.2d 1252,
1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639).[9] Under the
prejudice prong, [a petitioner] must show that
"the
errors
at
trial
actually
and
substantially disadvantaged his defense so
that he was denied fundamental fairness." Id.

9

Murray v. Carrier, 477 U.S. 478 (1986).
13

at 1261 (quoting Carrier, 477 U.S. at 494, 106
S.Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In Martinez, the Supreme Court modified the general rule in
Coleman10 to expand the "cause" that may excuse a procedural
default. 132 S.Ct. at 1315.
Allowing a federal habeas court to hear a
claim of ineffective assistance of trial
counsel when an attorney's errors (or the
absence of an attorney) caused a procedural
default in an initial-review collateral
proceeding acknowledges, as an equitable
matter, that the initial-review collateral
proceeding, if undertaken without counsel or
with ineffective counsel, may not have been
sufficient to ensure that proper consideration
was given to a substantial claim. From this it
follows that, when a State requires a prisoner
to raise an ineffective-assistance-of-trialcounsel claim in a collateral proceeding, a
prisoner may establish cause for a default of
an
ineffective-assistance
claim
in
two
circumstances. The first is where the state
courts did not appoint counsel in the initialreview collateral proceeding for a claim of
ineffective assistance at trial. The second is
where appointed counsel in the initial-review
collateral proceeding, where the claim should
have been raised, was ineffective under the

10

"Negligence on the part of a prisoner's postconviction
attorney does not qualify as 'cause.'" Maples v. Thomas, 565 U.S.
266, 280 (2012) (citing Coleman, 501 U.S. at 753). The Court
reasoned that, under principles of agency law, the attorney is the
prisoner's agent, and therefore, the principal bears the risk of
negligent conduct on the part of his agent. Coleman, 501 U.S. at
753-54. In Coleman, the alleged ineffectiveness of counsel was on
appeal from an initial-review collateral proceeding, and in that
proceeding the prisoner's claims had been addressed by the state
habeas trial court. Id. at 755. However, the Martinez Court
addressed inadequate assistance of counsel at an initial-review
collateral proceeding.
14

standards of Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To overcome the default, a prisoner
must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim
is a substantial one, which is to say that the
prisoner must demonstrate that the claim has
some merit. Cf. Miller-El v. Cockrell, 537
U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931
(2003) (describing standards for certificates
of appealability to issue).
Id. at 1318-19.
In

the

petitioner

absence
may

of

receive

a

showing

of

consideration

cause
on

and
the

prejudice,
merits

of

a
a

procedurally defaulted claim if he can establish that a fundamental
miscarriage of justice, the continued incarceration of one who is
actually innocent, otherwise would result. The Eleventh Circuit has
explained:
[I]f a petitioner cannot show cause and
prejudice, there remains yet another avenue
for him to receive consideration on the merits
of his procedurally defaulted claim. "[I]n an
extraordinary case, where a constitutional
violation has probably resulted in the
conviction of one who is actually innocent, a
federal habeas court may grant the writ even
in the absence of a showing of cause for the
procedural default." Carrier, 477 U.S. at 496,
106 S.Ct. at 2649. "This exception is
exceedingly narrow in scope," however, and
requires proof of actual innocence, not just
legal innocence. Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. "To meet this standard, a petitioner must
'show that it is more likely than not that no reasonable juror
would have convicted him' of the underlying offense." Johnson v.

15

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally, "'[t]o be credible,'
a claim of actual innocence must be based on reliable evidence not
presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998)
(quoting

Schlup,

513

U.S.

at

324).

With

the

rarity

of

such

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

With respect to prejudice, a challenger
demonstrate "a reasonable probability
16

that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." 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.
The United States Supreme Court has long recognized that
Strickland's two-part inquiry applies to ineffective assistance of
counsel claims arising out of the plea process. See Hill v.
Lockhart, 474 U.S. 52, 57 (1985).11 In 2012, in companion decisions

11

In the context of an ineffective assistance challenge to
the voluntariness of a guilty or no contest plea, a petitioner must
17

in Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper, 566
U.S. 156 (2012), the Supreme Court clarified that the Sixth
Amendment right to the effective assistance of counsel extends
specifically "to the negotiation and consideration of plea offers
that lapse or are rejected." In re Perez, 682 F.3d 930, 932 (11th
Cir. 2012) (per curiam) (footnote omitted). In Lafler, the parties
agreed that counsel's performance was deficient when he advised the
defendant to reject the plea offer on the grounds he could not be
convicted at trial. See 566 U.S. at 163. Thus, the Supreme Court
articulated a three-part test to prove prejudice in the context of
a foregone guilty plea.
In contrast to Hill, here the ineffective
advice led not to an offer's acceptance but to
its rejection. Having to stand trial, not
choosing to waive it, is the prejudice
alleged. In these circumstances a defendant
must show that but for the ineffective advice
of counsel there is a reasonable probability
that the plea offer would have been presented
to the court (i.e., that the defendant would
have accepted the plea and the prosecution
would not have withdrawn it in light of
intervening circumstances), that the court
would have accepted its terms, and that the
conviction or sentence, or both, under the

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, 474 U.S. at 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).
18

offer's terms would have been less severe than
under the judgment and sentence that in fact
were imposed.
Id. at 163-64; see Frye, 566 U.S. at 147; Gissendaner v. Seaboldt,
735 F.3d 1311, 1317-19 (11th Cir. 2013).
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);
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

19

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).
(2010).
D. Ineffective Assistance of Appellate Counsel
The two-part Strickland standard also governs a claim of
ineffective assistance of appellate counsel. Overstreet v. Warden,
811 F.3d 1283, 1287 (11th Cir. 2016). The Eleventh Circuit has
stated:
To prevail on a claim of ineffective
assistance of appellate counsel, a habeas
petitioner must establish that his counsel's
performance was deficient and that the
deficient performance prejudiced his defense.
See Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); Brooks v. Comm'r, Ala. Dep't of Corr.,
719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims
of ineffective assistance of appellate counsel
are governed by the same standards applied to
trial counsel under Strickland.") (quotation
marks
omitted).
Under
the
deficient
performance prong, the petitioner "must show
that counsel's representation fell below an
objective
standard
of
reasonableness."
Strickland, 466 U.S. at 688, 104 S.Ct. at
2064.
Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1331 (11th Cir.
2016), cert. denied, 137 S.Ct. 505 (2016).
As with a claim of ineffective assistance of trial counsel,
the combination of Strickland and § 2254(d) requires a doubly
deferential

review

of

a

state

court

decision

regarding

the

performance of appellate counsel. See Richter, 562 U.S. at 105; see
20

also Gissendaner, 735 F.3d at 1323 ("This double deference is
doubly difficult for a petitioner to overcome, and it will be a
rare case in which an ineffective assistance of counsel claim that
was denied on the merits in state court is found to merit relief in
a federal habeas proceeding.") (quotation marks and alteration
omitted). Indeed, the Supreme Court has opined that "[i]f this
standard is difficult to meet, that is because it was meant to be."
Richter, 562 U.S. at 102.
When considering deficient performance by appellate counsel,
a court must presume counsel's performance was
"within
the
wide
range
of
reasonable
professional assistance." Id.[12] at 689, 104
S. Ct. 2052. Appellate counsel has no duty to
raise every non-frivolous issue and may
reasonably
weed
out
weaker
(albeit
Philmore v.
meritorious) arguments. See
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009).
"Generally, only when ignored issues are
clearly stronger than those presented, will
the presumption of effective assistance of
counsel be overcome." Smith v. Robbins, 528
U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756
(2000) (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986)); see also Burger v. Kemp,
483 U.S. 776, 784, 107 S. Ct. 3114, 97 L.Ed.2d
638 (1987) (finding no ineffective assistance
of counsel when the failure to raise a
particular issue had "a sound strategic
basis").
Overstreet, 811 F.3d at 1287; see also Owen v. Sec'y, Dep't of
Corr.,

568

F.3d

894,

915

(11th

Cir.

2009)

(stating

"any

deficiencies of counsel in failing to raise or adequately pursue

12

Strickland, 466 U.S. at 689.
21

[meritless

issues

on

appeal]

cannot

constitute

ineffective

assistance of counsel").
To satisfy the prejudice prong, a petitioner must show a
reasonable probability that "but for the deficient performance, the
outcome of the appeal would have been different." Black v. United
States, 373 F.3d 1140, 1142 (11th Cir. 2004) (citations omitted);
see Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009)
("In order to establish prejudice, we must first review the merits
of

the

omitted

claim.

Counsel's

performance

will

be

deemed

prejudicial if we find that 'the neglected claim would have a
reasonable

probability

of

success

on

appeal.'")

(citations

omitted).
VI. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Erke asserts that the trial court committed
fundamental error when it imposed a "constructively vindictive
sentence"13 that violated his right to due process of law. Petition
at 4. He states that the trial judge imposed a vindictive sentence,
as evidenced by: (1) his thirty-five year sentence arising from his
open plea which "greatly exceeded the State's most recent plea
offer" of 9.2 years that he rejected; (2) the co-defendants, whom
the State acknowledged were more culpable, received more lenient

13

See Baxter v. State, 127 So.3d 726, 733 (Fla. 1st DCA
2013)
("Judicial
vindictiveness
has
two
strains:
actual
vindictiveness and constructive vindictiveness.").
22

sentences;14 (3) there was a "huge disparity" between his thirtyfive year sentence and the State's "far more lenient" sentencing
recommendation

of

a

guidelines

sentence

(110

months

or

approximately 9.2 years); and (4) the pre-sentence investigation
report recommended a five-year sentence. Id. at 4-5. Erke argued
this issue on direct appeal in his pro se brief, see Resp. Ex. E at
5-7, and the appellate court affirmed Erke's conviction per curiam,
see Resp. Ex. F.15
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, Erke is not entitled to

relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, Erke's claim, nevertheless, is

14

Erke's two co-defendants, one of whom is his older
brother, entered negotiated pleas and were sentenced to terms of
incarceration of ten years (Michael Erke) and fifteen years (Donald
Royall). See Sentencing Tr. at 153, 156.
15

The State did not file a responsive brief. See
http://jweb.flcourts.org/pls/ds/ds_docket, Case No. 1D10-4766.
23

without merit. Erke entered an open plea before Judge McCallum, and
was aware that a different judge would preside over his sentencing.
See Plea Tr. at 109-10, 112. He understood that the guidelines
sentencing range was from a term of imprisonment of 9.2 years to
life imprisonment. See id. at 110, 112-15. Judge Soud, as the
sentencing judge, neither initiated nor participated in any plea
negotiations

with

Erke.16

At

sentencing,

Erke

and

his

mother

testified, and Judge Soud inquired about the extent of Erke's
involvement in the crimes. Before pronouncing the sentence, Judge
Soud stated in pertinent part:
Well, at this point in the process, let
me just kind of walk through briefly what I'm
looking at and what I'm considering. My
remarks are not going to be overly long.
The Court does note mitigating factors.
Number one, that this defendant has no
criminal record whatsoever, and by all
appearances this was his first interaction
with the criminal justice system, that
certainly is a strong mitigator in his favor.
His father dying a few months before
this, while tragic, is not as strong a
mitigator, but certainly a factor the Court
considers.
There was not a terribly large amount
gleaned from my watching his interview. And by
that, I mean the defendant who's present
before the Court is here.

16

See Plea Tr.; see also Sentencing Tr.; Resp. Ex. L at 37
n.1 ("The judge who presided over [Erke]'s sentencing hearing was
not the same judge who presided at the plea colloquy.").
24

There was, however, a significant amount
gleaned from reviewing the interview of his
brother. The testimony at the deposition was
he was under the influence, he certainly did
not appear to be under the influence at the
time of his statement. He is coughing
significantly, saying he may be coming down
with a cold. He reads the first line of that
Constitutional rights form very clearly, and
at a nice pace for reading. He does mumble
some, but the speech pattern and pace frankly,
are similar to his brother[']s in that regard.
So, my observation of him in the
interview room, there would be no basis
whatsoever for this Court to believe that he
was under the influence at the time of giving
that statement.
His brother is very clear that there were
three people involved, not four. Which does
not allow this Court for purposes of today's
hearing to accept as true what the defendant
has said, that there is a fourth person
involved.
Interestingly to this Court, and there
are among others, and I'm not going to
summarize
every
one
of
them.
Very
interestingly to this Court, the detective
asks his brother, Michael, how did ya'll get
in, who's at the back door, three of us, all
three of us; how did ya'll get in, and this is
somewhere between 18 to 20 minutes into the
video, we jimmied the door with a pocketknife,
and the defendant today told me he has a
pocketknife in his pocket, and he has shotgun
shells in his pocket, whether or not they
match the shotgun that was taken, whatever the
case may be, I don't know what the source of
that is. But the reality of it is, there is
simply nothing this Court can lean on that
would warrant this Court accepting as true the
defendant's testimony that he stayed in the
car the whole time.
Therefore, the Court can only come to the
conclusion that there were three people in the
25

car; that there were three people involved at
the time of the burglary; that there were
three people involved when the two victims
were at gunpoint, admittedly perhaps not at
the hands of this defendant, but that the
defendant was actively involved in kicking and
beating both victims.
It is indeed unusual, and I almost cannot
explain how Nathaniel Erke's first involvement
in the criminal justice system is the
commission of two life felonies, I am almost
at a loss.
The hopes of a military career, I think
National Guard, Reserves, or something like
that; graduated from Terry Parker; observing
his demeanor in court today, he seems humble,
he seems respectful, he is not sitting in a
posture that would lead this Court to believe
he has an attitude or disdain for what he is
going through, he has seemed respectful at all
times today. But that simply cannot take away
from the profound nature of what was done that
day.
People
in
our
community
have
the
absolute, unfettered right to be left alone in
their
own
home,
their
most
intimate
possessions are in that home, their life's
possessions accumulated through work are in
that home, and they have a right to be left
alone. They have a right to come to their
house and not face the barrel of a gun. They
have the right to come to their house and not
be beaten with a bat, or kicked or punched, or
in any other manner suffer violence at the
hands of three young men, who have decided for
various reasons, according to the videos, to
break into that particular individual's home.
Albeit his first experience with the
criminal justice system, and by his plea of
guilty, and by the evidence that I have
briefly summarized only in part, his first
interaction with the criminal justice system
is a profound one. He has posed a direct,
immediate, and significant threat to the
26

citizens of this community, and to the two
individuals that night who arrived home at the
time these gentlemen were burglarizing the
home.
. . . .
Mr. Erke, very candidly, this is a sad
day. You have put your mom in a position to
stand up here in an impossible scenario.
Undeniably,
she
loves
you.
She
became
emotional when uttering her first word and
answering
the
first
question.
By
all
appearances you love your brother, and by all
appearances in the videotape, he loves you.
But the Court cannot, because of the
seriousness of what was done that night,
cannot acquiesce to your mother's request for
leniency.
I was not present when the other pleas
were taken, and negotiated dispositions, I
have no idea what occurred, I have no idea
what
was
underlying
that
negotiated
disposition. But as I mentioned during the
course of this hearing, this Court is not
bound by any other negotiated disposition in
this case, although it does provide the court
some pause.
After
considering
in
detail
the
mitigating factors presented in this case, as
well as the facts of this case and the
companion cases, it is the sentence of this
Court that you be adjudicated guilty of all
crimes to which you have pled. It is the
sentence of this Court that you be delivered
to the custody of the Florida Department of
Corrections by the Duval County Sheriff, and
you are to be delivered to the Florida
Department of Corrections at the Florida State
Prison, where you shall be incarcerated for a
term of 35 years.
. . . .

27

I am very sorry, but
compelled to this decision.

the

Court

is

Sentencing Tr. at 197-204 (emphasis added).
Notably, in denying Erke's Rule 3.850 motion as to his
ineffectiveness claim relating to the judge's alleged vindictive
sentence, the circuit court stated in pertinent part:
But for counsel's advice[,] Defendant
contends that he would have entered into a
negotiated plea with the State for a 9.2-year
sentence rather than entering the open plea
that led to his thirty-five-year sentence.
Because the State recommended 9.2 years at
sentencing, according to Defendant, the Court
was biased and vindictive for rejecting the
State's recommendation. . . .
Defendant also claims that the Court was
vindictive
at
sentencing.
A
vindictive
sentence is a harsher sentence imposed in
retaliation for a defendant exercising his or
her right to proceed to trial. Wilson v.
State, 845 So.2d 142, 156 (Fla. 2003). The
totality of the circumstances will determine
if the sentence was vindictive. Mendez v.
State, 28 So.3d 948, 950 (Fla. 2d DCA 2010).
A court must consider the following factors:
(1) the trial court's participation in the
plea negotiations; (2) any comments the court
made that departed from neutrality; (3) the
disparity between the plea offer and the
sentence imposed; and (4) the lack of facts on
the record that explain the reasons for the
increased sentence. If the totality of the
circumstances does not give rise to a
presumption of vindictiveness, the burden
remains on the defendant to prove
actual
vindictiveness. Wilson, 845 So.2d at 156 n.8.
Defendant's allegations do not establish
that the Court was vindictive. First, the
Court did not participate in any plea
negotiations between Defendant and the State.
Second, the record establishes that the Court
28

did not deviate from it[s] neutral role. The
Court rejected the State's recommendation of
9.2 years and imposed the thirty-five-year
sentence
after
reviewing
the
evidence,
especially a co-defendant's deposition. (Ex.
G. at 52-54.)[17] The Court found that the codefendant's testimony was credible and that it
contradicted Defendant's version of the crime.
The co-defendant's testimony established that
Defendant was an active participant in the
crime. (Ex. G. 54:11-12.)[18] The record
establishes that the Court reviewed and
depended
on
the
record
to
determine
Defendant's sentence. Third, although there is
a disparity between the alleged plea offer and
the sentence imposed, that is merely one
factor the Court can consider in determining
vindictiveness. The record, however, supports
Defendant's sentence. The Court found that the
co-defendant's
deposition
testimony
was
credible and established that Defendant was
"actively involved in kicking and beating both
victims" and not merely sitting in the car as
Defendant claimed at sentencing. (Ex. G. at
52:16-25; 53:1-12; 54:11-12.)[19] Finally, the
facts on the record belie Defendant's argument
that
he
was
less
culpable
than
his
co-defendants.
After
reading
the
co-defendant's deposition, the Court found
that all three defendants entered the back
door and that they "jimmied" the door with a
pocketknife. (Ex. G. at 53: 15-25.)[20]
Moreover, Defendant testified that he had a
pocketknife in his pocket when the police
arrived. (Ex. G. at 23:1-8.)[21] Considering
the totality of the circumstances, the Court
did not impose a vindictive sentence.
17

See Resp. Ex. L at 67-69.

18

See Resp. Ex. L at 69 (stating Erke "was actively
involved in kicking and beating both victims").
19

See Resp. Ex. L at 67-69.

20

See Resp. Ex. L at 68.

21

See Resp. Ex. L at 65.
29

Resp. Ex. L at 36-38 (footnotes omitted).
Due process prevents a court from imposing an increased
sentence after reconviction following a new trial if that increase
is motivated by vindictiveness on the part of the sentencing judge.
See Texas v. McCullough, 475 U.S. 134, 137 (1986) (discussing North
Carolina v. Pearce, 395 U.S. 711, 723-25 (1969)); see also Alabama
v. Smith, 490 U.S. 794, 798 (1989). "To punish a person because he
has done what the law plainly allows him to do is a due process
violation of the most basic sort." Bordenkircher v. Hayes, 434 U.S.
357, 363 (1978) (citing Pearce, 395 U.S. at 738). Under limited
circumstances,

a

presumption

of

vindictiveness

may

arise;

otherwise, a defendant must prove actual vindictiveness.22 See
Smith, 490 U.S. at 795, 799.
Unlike the defendants in Smith and Pearce, Erke was not
resentenced after a successful appeal. But, even if the Court
applies the principles espoused in Smith and Pearce to the context
of an initial sentencing, Erke cannot show a reasonable likelihood
that the sentence imposed was attributable to a vindictive or
retaliatory motive or actual vindictiveness by the court.23 Far from

22

Where the totality of the circumstances does not give
rise to a presumption of vindictiveness, the burden remains upon
the defendant to prove actual vindictiveness. See Smith, 490 U.S.
at 799.
23

Florida
courts extended the concept of judicial
vindictiveness to the context of initial sentencings where the
sentencing judge had been involved in plea offers or deals that the
defendant had rejected. See Wilson v. State, 845 So.2d 142 (Fla.
30

punishing

Erke

for

exercising

a

constitutional

right,

the

sentencing judge explained his reasoning and relied on the severity
of the crimes and the level of Erke's involvement in deciding to
impose a thirty-five year sentence. Accordingly, Erke is not
entitled to federal habeas relief on ground one.
B. Ground Two
As

ground

two,

Erke

asserts

that

appellate

counsel

was

ineffective because he failed to raise the following issue on
direct appeal: the trial court violated his right to due process
when it considered impermissible sentencing factors to determine
his sentence. See Petition at 7. He states that the sentencing
judge commented on his sympathy for the victims, and Erke's
truthfulness, or lack thereof, and attempt to evade responsibility
for

his

criminal

involvement.

See

id.

Erke

raised

the

ineffectiveness claim in his state petition for writ of habeas
corpus. See Resp. Ex. S at 4-6. The appellate court ultimately
denied the petition on the merits. See Resp. Ex. Y.

2003); Baxter v. State, 127 So.3d 726 (Fla. 1st DCA 2013). To
determine whether a presumption of vindictiveness applies, Florida
courts apply a totality-of-the-circumstances test, which requires
a court to consider factors such as the court's participation in
plea negotiations, comments made by the court that indicate a
departure from the role of neutral arbiter, the disparity between
the plea offer and the sentence imposed, and a lack of facts in the
record that explains the reasons for the increased sentence. See
Wilson, 845 So.2d at 156; see also Williams v. State, 225 So.3d
349, 356-58 (Fla. 3rd DCA 2017). Absent the presumption, a
defendant must prove actual vindictiveness. Wilson, 845 So.2d at
156.
31

Thus, as there is a qualifying state court decision, the Court
will address this 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 adjudication of this 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.24 Thus, Erke is
not entitled to relief on the basis of this claim.
Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, Erke's ineffectiveness
claim nevertheless is without merit. Given the record, he has not
shown a reasonable probability exists that the claim would have
been meritorious on direct appeal, if counsel had raised the claim
in the manner suggested by Erke. Erke's ineffectiveness claim is
without merit since he has shown neither deficient performance nor

24

Petitioner apparently relies on Evitts v. Lucey, 469 U.S.
387 (1985), which held that the principles of effective assistance
of counsel apply to a criminal defendant's first appeal as of
right. 469 U.S. 387, 393–94 (1985). In his state habeas petition,
however, he argued that his appellate counsel's failure to raise
the impermissible sentencing issue on appeal violated his right to
effective assistance of counsel, and the appellate court per curiam
denied the claim on the merits. He has therefore failed to
demonstrate that the state court's decision was contrary to or
involved an unreasonable application of Evitts.
32

resulting prejudice. Accordingly, Erke is not entitled to federal
habeas relief on ground two.
C. Ground Three
As ground three, Erke asserts that appellate counsel was
ineffective because he failed to raise the following issue on
direct appeal: the trial court violated his right to due process
when it imposed a constructively vindictive sentence. See Petition
at 8. Erke raised the ineffectiveness claim in his state petition
for writ of habeas corpus. See Resp. Ex. S at 6-9. The appellate
court directed the State to respond, see Resp. Ex. V; the State did
so, see Resp. Ex. W; and Erke filed a reply, see Resp. Ex. X. The
appellate court ultimately denied the petition on the merits. See
Resp. Ex. Y.
As there is a qualifying state court decision, the Court will
address this claim in accordance with the deferential standard for
federal court review of state court adjudications. Upon review of
the record and applicable law, the Court concludes that the state
court's adjudication of this 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, Erke is
not entitled to relief on the basis of this claim.

33

Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, Erke's ineffectiveness
claim nevertheless is without merit. On this record, he has not
shown a reasonable probability exists that the claim would have
been meritorious on direct appeal, if counsel had raised the claim
in the manner suggested by Erke.25 Erke's ineffectiveness claim is
without merit since he has shown neither deficient performance nor
resulting prejudice.26 Accordingly, Erke is not entitled to federal
habeas relief on ground three.
D. Grounds Four and Five
Erke asserts that his open plea to the court was involuntary
because he relied on counsel's advice that his plea would result in
a youthful offender sentence, or "at worst," a sentence that was no
greater than the sentences of his more culpable co-defendants
(ground four). Petition at 10. Additionally, he states that counsel
was ineffective because he advised Erke that an open plea "would
likely result" in either a youthful offender sentence or a sentence
that was no greater than those of his co-defendants (ground five).
See id. at 12. Respondents argue that ground five is procedurally

25

The appellate court presumably considered and rejected
the claim of judicial vindictiveness because counsel filed an
Anders brief, see Resp. Ex. B, and Erke raised the issue in his pro
se appellate brief, see Resp. Ex. E; see also Resp. Ex. Y (Thomas,
J., specially concurring, and citing Towbridge v. State, 45 So.3d
484 (Fla. 1st DCA 2010)).
26

See Section VI.A. Ground One.
34

barred. See Response at 26. Assuming Erke intends to raise the same
claims here that he raised in his Rule 3.850 motion in state
court,27 his claims are sufficiently exhausted. The court ultimately
denied the post-conviction motion with respect to the issues,
stating in pertinent part:
When determining "whether an allegation
is conclusively refuted by the record, [a
trial court] may rely on the sworn testimony
the defendant has given in the plea colloquy.
Any allegations that contradict those answers
should not be entertained." Smith v. State, 21
So.3d 72, 76 (Fla.
1st DCA 2009); see
Montgomery
v.
State, 615 So.2d
226, 227
(Fla. 5th DCA 1993) (holding that a court can
use the written plea agreement and the
plea
transcript
to
refute a defendant's
claims). Additionally, a defendant may not
seek to go behind his sworn testimony at a
plea hearing in a post conviction motion.
Stano v.
State, 520 So.2d 278, 280
(Fla.
1988); Bir v. State, 493 So. 2d 55, 56 (Fla.
1st DCA 1986); Dean v. State, 580 So.2d 808,
810 (Fla. 3d DCA 1991). The record refutes
Defendant's claims. Both the plea colloquy and
the plea form Defendant signed immediately
prior to the plea colloquy establish that
Defendant's plea was knowing and voluntary.
Even if counsel did not properly advise
Defendant about the plea and did not seek a
favorable sentencing cap, Defendant stated
during the plea colloquy that he understood
that he could receive anywhere from 9.2 years
to life for his crimes. (Ex. H at 6:4-11.) He
further stated that no one promised him
anything other than what had been said on the
record and that no one made him any promises
as to what kind of sentence the judge would
impose. (Ex. H at 8-9.) Defendant's claims
that counsel was ineffective for his claims

27

See Resp. Ex. L at 13-16.
35

related to the plea are not supported by the
record and are thus denied.
Resp. Ex. L at 40. On Erke's appeal, the appellate court affirmed
the trial court's denial of post-conviction relief per curiam, see
Resp. Ex. O, and later denied his motion for rehearing, see Resp.
Exs. P; Q.
To the extent that the state appellate court affirmed the
trial court's denial on the merits, the Court will address these
claims 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 adjudication of these claims 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, Erke is
not entitled to relief on the basis of these claims.
Moreover,

even

assuming

the

state

appellate

court's

adjudication of these claims is not entitled to deference, Erke's
claims are still without merit. Erke signed the Plea of Guilty
form, see Resp. Ex. A at 42-43, and acknowledged at the plea
hearing that counsel had reviewed the form with him and had
answered his questions, see Plea Tr. at 4, 9. The following
colloquy ensued.

36

THE COURT: Mr. Erke, the State just
outlined the charges that you pled to. Do you
understand them?
[ERKE]: Yes, ma'am.
THE COURT: That your exposure or your
sentencing range is 9.2 years to life, do you
understand that?
[ERKE]: Yes, ma'am.
THE COURT: Do you also understand that it
will be Judge Soud who will be presiding over
that sentencing hearing and deciding your
sentence?
[ERKE]: Yes, ma'am.
THE COURT: Not myself, I'm just standing
in for him today, you understand that?
[ERKE]: Yes, ma'am.
THE COURT: Did you give your attorney
permission to enter the plea directly to the
Court?
[ERKE]: Yes, ma'am.
THE COURT: With the understanding that
the
Judge
will
decide
the
appropriate
sentence?
[ERKE]: Yes, ma'am.
THE COURT: Are you satisfied with your
attorney's legal representation?
[ERKE]: Yes, ma'am.
. . . .
THE COURT: You decided you don't want to
go forward with your trial, is that correct?
[ERKE]: That's correct, ma'am.

37

THE COURT: You've entered
because you believe that's in
interest?

this
your

plea
best

[ERKE]: Yes, ma'am.
THE COURT: Has anyone forced you,
threatened you, coerced you or promised you
anything other than what's been said on the
record today to get you to enter this plea?
[ERKE]: No, ma'am.
THE COURT: Are you under the influence of
anything that would affect your ability to
understand what you're doing?
[ERKE]: No, ma'am.
THE COURT: Has anyone made you any
promises as to what kind of sentence Judge
Soud would impose?
[ERKE]: No, ma'am.
THE COURT: Do you understand that it
could be anything from 9.2 years to life?
[ERKE]: Yes, ma'am.
THE COURT: Just because at the end of the
hearing if Judge Soud determined it was
appropriate to give you life, you can't –just because you don't like the sentence you
can't set it aside, you understand that?
[ERKE]: Yes, ma'am.
THE COURT: You have to live with whatever
his decision is, do you understand that?
[ERKE]: Yes, ma'am.
Id. at 112-15. After additional questioning, the court found a
factual basis for the plea and that it was freely and voluntarily

38

entered with a full understanding of the consequences. See id. at
117.
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

constitute

a

findings

made

formidable

by

the

barrier

in

judge
any

accepting
subsequent

the

plea,

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.

39

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
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).
Erke acknowledged that he understood the charges against him
and the constitutional rights he was forfeiting. He affirmed that
he was not pleading guilty because of any coercion, threats, or
promises. After observing Erke 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. Erke failed to carry his burden of showing that
his counsel's representation fell outside that range of reasonably
professional assistance. Notably, counsel argued for a youthful
offender sentence or a sentence less than that of Erke's codefendants.

See

Sentencing

Tr.

at

186-91.

Assuming

arguendo

deficient performance by defense counsel, Erke has not shown any
resulting prejudice. Thus, Erke is not entitled to federal habeas
relief on grounds four and five.

40

E. Ground Six
As ground six, Erke asserts that counsel was ineffective
because he advised Erke to reject the State's 9.2-year plea offer.
See Petition at 13. He explains:
Prior to Erke's open plea to the court,
the State offered him a minimum guideline
sentence of 9.2 years. Counsel advised Erke to
reject the offer, and he assured Erke that he
could persuade the court to sentence Erke to a
youthful offender sentence, or at worst, a
sentence no greater than his more culpable codefendants' [sic]. Counsel was egregiously
incompetent to advise Erke to reject 9.2 years
and gamble on a youthful offender sentence in
the looming shadow of three life sentences.
But for counsel's incompetent advice to
reject the State's plea offer, Erke would have
accepted the State's plea offer of 9.2 years.
The State would not have withdrawn the offer
because
the
State,
in
fact,
actually
recommended the same 9.2 years at sentencing.
The court would have accepted the offer
because Judge McCallum had previously disposed
of Erke's co-defendants' cases, and she would
have proceeded to sentence Erke at the same
time that he entered his plea before her,
instead of her proceeding to order a PSI, and
Erke would not have been ultimately sentenced
before a different judge who had never been
confronted with the case before. Erke's
sentence, under the State's plea offer
terms[,] would have been three times less
severe than under the sentence that was
imposed.
Id. at 13-14. He raised the claim in his Rule 3.850 motion in state
court. See Resp. Ex. L at 17-20. The court ultimately denied the
post-conviction motion with respect to the claim, stating in
pertinent part:

41

To be entitled to relief based on a claim
that counsel misadvised a defendant to reject
a plea offer, the defendant must allege and
prove that "(1) counsel failed to convey a
plea offer or misinformed the defendant
concerning the possible sentence he faced, (2)
the defendant would have accepted the plea but
for counsel's failures, and (3) acceptance of
the plea would have resulted in a lesser
sentence than was ultimately imposed." Morgan
v. State, 991 So.2d 835, 839-40 (Fla. 2008).
In Morgan, the court held that the defendant
had failed to allege a facially sufficient
claim based on counsel's advice to reject a
plea offer when the defendant did not prove
all three elements:
In his motion for postconviction
relief
Morgan
alleged
that
counsel informed him of a plea offer
from the State. He further alleged
that counsel advised him that she
felt she could win at trial or get a
reduced offense. Counsel urged him
to reject the plea offer, and he
did. Lastly, Morgan alleged that he
received a greater sentence after
trial, and that he would have
accepted the plea had he known that
counsel would not win. Morgan does
not contend that his counsel failed
to communicate a plea offer or
misinformed
him
concerning
the
penalties. Morgan has failed to
allege any deficient performance on
the part of counsel. The mere fact
that Morgan did not prevail at trial
does not translate into misadvice.
Some specific deficiency on the part
of counsel must be alleged. There is
no
allegation
that
counsel's
assessment of the chances of success
at trial was unreasonable under the
facts and circumstances of this case
or that counsel had not investigated
or otherwise was not familiar with
the case.

42

Id. at 841. Defendant also fails to satisfy
all three elements insofar as he cannot prove
that counsel failed to communicate the State's
alleged plea offer - he quotes it often in his
Motion. Moreover it was reasonable for counsel
to believe that Defendant could receive a
sentence
commensurate
to
that
of
his
co-defendants. Counsel need not be perfect,
but reasonably effective. The Court, however,
had the authority and discretion to sentence
Defendant to a term dictated only by the facts
and the sentencing guidelines. The evidence
was
sufficient
to
support
Defendant's
thirty-five-year sentence that was within the
guidelines.
Resp. Ex. L at 38-39. On Erke's appeal, the appellate court
affirmed the trial court's denial of post-conviction relief per
curiam, see Resp. Ex. O, and later denied his motion for rehearing,
see Resp. Exs. P; Q.
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
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, Erke is not entitled to relief
on the basis of the claim.

43

Moreover,

even

assuming

the

state

appellate

court's

adjudication of the claim is not entitled to deference, Erke's
claim nevertheless is without merit. In a motion for reduction of
sentence, defense counsel set forth the facts leading up to Erke's
open plea to the court.
1.

On March 5, 2009, this Defendant was
arrested for Armed Burglary and two
counts of Armed Robbery.

2.

Defendant was 18 years old at the time of
his arrest and has no criminal history of
any kind.

3.

Also arrested and charged with the same
crimes were Defendant's older brother
Michael Erke and co-defendant Donald
Royall Jr.

4.

The
State's
theory
of prosecution
targeted Defendant Royall as the main
perpetrator in the incident followed by
Michael Erke, the Defendant's older
brother and friend of co-defendant
Royall. Both of these Defendants had
prior felony arrests and convictions.

5.

Based on their records and level of
participation in this incident, the State
intended to offer Defendant Royall a
minimum of 15 years in Florida State
Prison and Defendant Michael Erke a
minimum of 10 years in Florida State
prison.

6.

As such, the State's position, due to
Defendant Nathaniel Erke's young age and
lack of criminal record, was to offer him
the opportunity to plead to the charge
and
cooperate
with
the
State
by
testifying
truthfully
regarding
the
incident. In turn, the State would make a
recommendation to the Court as to an
appropriate sentence based on his level
44

of cooperation, which would entail a
sentence less than what the co-defendants
received.
7.

Based on the above, Mr. Erke agreed in
principal to cooperate with the State,
however, prior to the State conducting a
proffer of the Defendant, co-Defendant
Royall pled to the State's offer of 15
years in Florida State Prison for his
role in the incident and Defendant
Michael Erke, pled guilty to a negotiated
sentence of 10 years [in] Florida State
Prison for his role in the above
referenced incident.

8.

Negotiations continued between the State
and Defense in an attempt to obtain a
youthful offender sentence for Mr. Erke.
However, based on a recent change in
office policy, the State would/could not
offer a youthful offender sentence.

9.

The
State's
position
in
terms
of
sentencing for Mr. Erke if he pled guilty
would be that they were not opposed to a
youthful offender sentence for him if the
Court deemed it appropriate, based on his
lack
of
record
and
level
of
involvement/participation
in
this
incident as it relates to his codefendant[s'] involvement.

10.

As such, on February 25, 2010, Mr. Erke
pled guilty to the Court as a principal
to the acts committed by his two more
culpable co-defendants, after discussing
all of the above with the undersigned
attorney and after speaking to the
prosecutor assigned to his case.

11.

On April 7, 2010, a sentencing hearing
was held by the Court, whereby the State
set forth the facts of the case and
recommended a guideline sentence of
approximately 9 years for the Defendant
due to the fact that this Defendant was

45

the
least
culpable
of
the
defendants involved in the crime.
12.

three

The defense argued for youthful offender
and the court sentenced the Defendant to
35 years [in] Florida State Prison.

Resp. Ex. A at 87-88. The court denied the defense's request to
reduce the sentence. See id. at 92.
At sentencing, the prosecutor stated in pertinent part:
So, the State's position is that we
recommend the guidelines, simply because we
concede that he has no prior criminal record,
and we do believe that his involvement as a
princip[al] is a result of him being unduly
influenced by his brother. He had no prior
even juvenile record before this incident. So,
we've taken that into consideration in making
our recommendation and when [we] made our
offer, and when we offered him to cooperate.
Unfortunately, that didn't take place.
So, at this point, our position hasn't
changed. Based on having no record, however,
we are concerned that the defendant hasn't
admitted his involvement, and it's very clear
from the evidence that we would have presented
at trial that he was involved. So, that's the
State[']s position, and we're recommending the
guidelines.
Sentencing Tr. at 186. Defense counsel stated that, during the
negotiations,

Erke

attempted

to

obtain

a

youthful

offender

sentence, see § 958.04(1), Fla. Stat. (2008),28 or one that took

28

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;
46

into consideration mitigating factors. See id. at 186-88. Counsel
explained that Erke entered an open plea to the court with hopes
that the sentencing court would be more lenient than the State's
9.2-year plea offer.
Having said that, the PSI recommends a
period of five years, which is below the
guidelines. The only way that we could get
actually below the guidelines is for [Erke] to
plead to the Court, and that's the reason that
he did do that. The Court is the only person
at this juncture that could offer or go below
the guidelines, and we just didn't feel that

(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.
Notably, "[a] life felony is not the same as a first-degree felony
punishable by life." James v. State, 775 So.2d 347, 348 (Fla. 1st
DCA 2000) (per curiam) (citing Burdick v. State, 594 So.2d 268-69
(Fla. 1992)). The offenses of which Erke was convicted, armed
burglary and armed robbery, were first degree felonies punishable
by life imprisonment. See Black v. State, 52 So.3d 830 (Fla. 4th
DCA 2011) ("Armed robbery and armed burglary are first-degree
felonies punishable by life, not life felonies.") (citing Fla.
Stat. §§ 810.02(2)(b), 812.13(2)(a)); Lee v. State, 399 So.2d 1027,
1028 (Fla. 1st DCA 1981) (per curiam) (stating armed robbery is a
"felony of the first degree," not a "life felony," and therefore,
the trial judge incorrectly found that defendant's conviction for
armed robbery precluded his treatment as a youthful offender)
(internal quotations omitted), pet. for rev. denied, 407 So.2d 1106
(Fla. 1981); see also Resp. Ex. A at 15, Information; 44, Judgment
(stating the three counts are first degree felonies punishable by
life). Thus, Erke was eligible for a youthful offender sentence.
47

even though he's charged as the other
individuals who had pled to this, they're all
charged the same way. And unfortunately under
the negotiations set forth, the State wasn't
going to allow him to plead to just one charge
to get the guidelines lower. So, we had
offered several different times to try to get
him to plead lower, but that just wasn't
possible. So, the only way that we could
actually get him in front of the Court and get
him in a position to help himself and get
below the guidelines is to have him plead
straight up. And that's exactly what he did,
even though his exposure is life, he took that
chance.
. . . .
And if the Court was to go below the
guidelines, and to see fit that he did, in
fact, put on enough mitigation with regards to
his lack of criminal record, his relatively
lack of involvement, based on his level of
culpability, his remorse, those such things
required under the statute, that the Court go
below the guidelines and consider a youthful
offender sentence . . . .
So, really his only option is for the
Court to consider a youthful offender sentence
on him, or the five years recommended by the
Department of Corrections, I would think would
be the best way to go, if the Court saw fit to
deviate from the guidelines.
Id. at 188-91 (emphasis added).
All that is constitutionally required is reasonably effective
counsel, not perfect or error-free counsel. "Strickland does not
guarantee perfect representation, only a 'reasonably competent
attorney.'" Richter, 562 U.S. at 110 (quoting Strickland, 466 U.S.
at 687) (internal quotation omitted). In the instant action,
counsel's

representation

did

not
48

so

undermine

the

proper

functioning of the adversarial process that Erke was deprived of a
fair process. Notably, "there is no expectation that competent
counsel will be a flawless strategist or tactician." Id. Indeed, an
attorney "may not be faulted for a reasonable miscalculation or
lack of foresight or for failing to prepare for what appear to be
remote possibilities." Id.
Erke has the burden to show that counsel's representation fell
below an objective standard of reasonableness. He has failed to
meet this burden. Counsel's advice to Erke that he reject the
State's 9.2-year plea offer was not unreasonable in light of the
circumstances. On this record, counsel was not deficient when he
advised Erke that the sentencing judge would consider mitigating
factors (Erke's young age at the time of the crime, lack of any
prior criminal record, and lesser involvement in the crimes as
compared to the co-defendants as well as the co-defendants' ten and
fifteen-year negotiated sentences). Indeed, counsel argued for a
downward departure sentence based on such mitigating factors, see
Sentencing Tr. at 186-91, and the court considered "in detail"
those mitigating factors as well as the facts in Erke and his codefendants' cases, see id. at 203. Thus, it was not unreasonable
for counsel to believe that Erke could receive a more lenient
sentence, one that was less than the State's offer. Erke is not
entitled to federal habeas relief on ground six.

49

F. Ground Seven
As ground seven, Erke asserts that counsel was ineffective
because he failed to advise him that the State would introduce the
co-defendant's recorded confession, and counsel would not object.
See Petition at 15. Erke no longer intends to pursue ground seven.
See Reply at 18 (withdrawing his arguments as to ground seven); see
also Petitioner's Reply to Court Order (Doc. 13). Therefore, the
Court will not address ground seven.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Erke 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, Erke "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
50

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 Erke 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
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.

51

4.

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

terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 12th day of
April, 2018.

sc 4/9
c:
Nathaniel Erke, FDOC #J41185
Counsel of Record

52