Hogan v. Secretary, Department of Corrections et al
Filing
13
ORDER denying 1 Petition and dismissing case with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 12/3/2018. (ACT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
HENRY L. HOGAN,
Petitioner,
v.
Case No. 3:16-cv-446-J-34MCR
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Henry Hogan, an inmate of the Florida penal system, initiated this action
on April 12, 2016,1 by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254
(Petition; Doc. 1). In the Petition, Hogan challenges a 2010 state court (Duval County,
Florida) judgment of conviction for aggravated assault with a firearm and possession of a
firearm by a convicted felon. Hogan raises two grounds for relief. See Doc. 1 at 4-16.2
Respondents have submitted a memorandum in opposition to the Petition. See Answer
in Response to Order to Show Cause (Resp.; Doc. 10) with exhibits (Resp. Ex.). Hogan
did not submit a brief in reply; instead, he chose to rely upon the allegations as claimed
in the Petition. See Petitioner’s Reply to Order to Show Cause (Doc. 19). This case is ripe
for review.
1
See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
For purposes of reference, the Court will cite the page number assigned by the
Court’s electronic docketing system.
2
II. Procedural History
On February 25, 2010, the State of Florida (State) charged Hogan, by way of an
amended Information, with possession of a firearm by a convicted felon (count one) and
aggravated assault (count two). Resp. Ex. A at 42. Hogan proceeded to a jury trial, at the
conclusion of which on March 2, 2018, the jury found Hogan guilty as charged as to both
counts, with a specific finding as to each count that Hogan actually possessed a firearm.
Id. at 46-47. On April 21, 2010, the circuit court adjudicated Hogan to be a habitual felony
offender (HFO), Id. at 165, and sentenced Hogan to a term of incarceration of fifteen
years as to count one and ten years as to count two, with all terms to run concurrent with
each other. Id. at 92-93, 165. The circuit court further imposed a three-year minimum
mandatory sentence as to each count. Id. at 94, 165.
On direct appeal, Hogan raised one issue in his initial brief: the circuit court erred
in denying his motion in limine to exclude any evidence of his contact with police on the
day after the incident. Resp. Ex. E at 18-24. The State filed an answer brief. Resp. Ex. F.
On March 22, 2011, Florida’s First District Court of Appeal (First DCA) per curiam affirmed
Hogan’s judgment and sentences. Resp. Ex. G. The First DCA issued its Mandate on
April 7, 2011. Id.
On August 17, 2011, Hogan filed a pro se Motion for Postconviction Relief pursuant
to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. H at 1-10. In
his Rule 3.850 Motion, Hogan alleged his trial counsel was ineffective for: misadvising
him about the maximum sentence he faced when considering and ultimately rejecting the
State’s plea offer (ground one); and failing to object and request a mistrial after the State
improperly commented on evidence not presented to the jury during closing arguments
2
(ground two). Id. On February 5, 2013, the circuit court denied the Rule 3.850 Motion. Id.
at 14-17. Hogan filed a motion for rehearing, Id. at 53-55, which the circuit court denied
on April 9, 2013. Id. at 57-58. On October 9, 2013, the First DCA reversed the circuit
court’s order and remanded the matter for an evidentiary hearing or the attachment of
record documents refuting Hogan’s allegations. Resp. Ex. M. The First DCA issued its
Mandate on November 5, 2013. Resp. Ex. N.
On remand, the circuit court granted Hogan an evidentiary hearing as to ground
one. Resp. Ex. O at 11-13. Afterwards, on July 14, 2014, the circuit court again denied
Hogan’s Rule 3.850 Motion. Id. at 30-35. The First DCA per curiam affirmed the circuit
court’s order on May 29, 2015, Resp. Ex. S, and issued its Mandate on July 2, 2015.
Resp. Ex. T.
III. One-Year Limitations Period
This action is 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
3
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 the Court can “adequately assess [Hogan’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 Marshall v. Sec’y, Fla. Dep’t of Corr.,
828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion
explaining its rationale in order for the state court’s decision to qualify as an adjudication
on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s
adjudication on the merits is unaccompanied by an explanation, the United States
Supreme Court recently stated:
4
[T]he federal court should “look through” the unexplained
decision to the last related state-court decision that does
provide a relevant rationale. It should then presume that the
unexplained decision adopted the same reasoning.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by
showing that the higher state court’s adjudication most likely relied on different grounds
than the lower state court’s reasoned decision, such as persuasive alternative grounds
that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at
1192, 1196.
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. The Eleventh Circuit describes the limited
scope of federal review pursuant to § 2254 as follows:
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.
5
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.’”[3] 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). 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”).
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
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).
6
F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a
“difficult” one to meet. Richter, 562 U.S. at 102. Thus, to the extent that a petitioner’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 Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective assistance of
counsel. That right is denied when a defense attorney’s performance falls below an
objective standard of reasonableness and thereby prejudices the defense.” Yarborough
v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521
(2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To establish deficient performance, a person challenging a
conviction must show that “counsel’s representation fell below
an objective standard of reasonableness.” [Strickland,] 466
U.S. at 688, 104 S. Ct. 2052. A court considering a claim of
ineffective assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range” of
reasonable professional assistance. Id., at 689, 104 S. Ct.
2052. The challenger’s burden is to show “that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id., at 687, 104 S. Ct. 2052.
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been 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 ironclad rule requiring a court to tackle one prong of the Strickland test before the other.”
7
Ward, 592 F.3d at 1163. 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 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 F.3d 1300, 1309 (11th Cir. 2004). As
8
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
Hogan alleges that the circuit court erred when it denied his motion in limine to
exclude any evidence of his contact with law enforcement on April 7, 2009, the day after
the incident. Doc. 1 at 4-14. According to Hogan, this evidence was irrelevant because
the events of April 7, 2009 were not inextricably intertwined with and provided no material
evidence in support of the charged crimes. Id. at 11-13. Moreover, Hogan complains this
evidence was unduly prejudicial because it implied in the minds of the jury that law
enforcement arrested Hogan on a separate unrelated firearms offense. Id. at 12-13.
On March 1, 2010, Hogan, with the assistance of counsel, filed a motion in limine
to
exclude
any
evidence
or
testimony
referencing
Hogan
“being
observed/stopped/detained/arrested by police officers on April 7, 2009 and any reference
to weapons being found in the vicinity on that date.” Resp. Ex. A at 49-51. Hogan argued
that such evidence would not prove or disprove a material fact and would be unduly
prejudicial because it would have led the jury to believe Hogan had been arrested on April
7, 2009 for offenses other than those charged in the Information. Id. The circuit court
denied the motion without explanation. Resp. Ex. B at 5-6. Hogan raised this issue on
direct appeal, arguing that the circuit court abused its discretion in allowing this evidence
and testimony to be presented to the jury. Resp. Ex. E at 18-24. The First DCA per curiam
affirmed the circuit court’s denial without a written opinion. Resp. Ex. G.
9
To the extent that the First DCA decided this claim 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 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, Hogan is not entitled to relief
on the basis of this claim.
Nevertheless, even if the state court’s adjudication of this claim is not entitled to
deference, Hogan would not be entitled to federal habeas relief. The Eleventh Circuit has
explained:
“As a general rule, a federal court in a habeas corpus case
will not review the trial court's actions concerning the
admissibility of evidence.” Osborne v. Wainwright, 720 F.2d
1237, 1238 (11th Cir.1983). “However, where a state court's
ruling is claimed to have deprived a defendant of his right to
due process, a federal court should then inquire only to
determine whether the error was of such magnitude as to
deny fundamental fairness to the criminal trial.” Id. (citations
omitted).
Tidwell v. Butler, 415 F. App’x 979, 980 (11th Cir. 2011). Here, Hogan has not claimed
the circuit court’s ruling violated his right to due process. Doc. 1 at 4-14. Instead, Hogan
argues in terms of state law only that the circuit court abused its discretion when it found
this evidence relevant and not unduly prejudicial. Id. As Hogan has not raised a
constitutional claim concerning due process of law, the Court cannot review the circuit
court’s action concerning the admissibility of this evidence. See Tidwell, 415 F. App’x at
980.
10
Even assuming the claim in Ground One can be construed to raise a claim of a
due process violation, Hogan is not entitled to relief. “A denial of fundamental fairness
occurs whenever the improper evidence ‘is material in the sense of a crucial, critical,
highly significant factor.’” Snowden v. Singletary, 135 F.3d 732, 737 (11th Cir.1998)
(quoting Osborne, 720 F.2d at 1238). In order for the State to prove aggravated assault,
it had to prove the following elements beyond a reasonable doubt: (1) Hogan intentionally
and unlawfully threatened, either by word or act, to do violence to the victim; (2) Hogan
appeared to have the ability to carry out the threat at the time; (3) Hogan’s act created in
the mind of the victim a well-founded fear that the violence was about to take place; and
(4) Hogan used a deadly weapon. Resp. Ex. A at 55; §§ 784.011; 784.021, Fla. Stat. To
establish the crime of possession of a firearm by a convicted felon, the State had to prove
the following two elements: (1) Hogan had previously been convicted of a felony; and (2)
after the conviction, Hogan knowingly had in his care, custody, possession, or control a
firearm. Resp. Ex. A at 66; § 790.23(1)(a), Fla. Stat.
As to the aggravated assault charge, the record reflects the State introduced the
following evidence: (1) two witnesses, including the victim, positively identified Hogan in
court and in a photo line-up as the gunman who threatened her, Resp. Ex. B at 23-24,
32, 46-51, 59-61, 65-68; (2) the victim testified that Hogan verbally threatened the victim
and pointed a gun at her, Id. at 26-28, 47-50; and (3) the victim also testified that she
thought Hogan would shoot her and was afraid for her own safety and the safety of her
child. Id. at 27-28. Based on these facts, the State had presented evidence that Hogan
intentionally threatened the victim with words and acts, appeared to have the ability to
carry out the threat, caused the victim to have a well-founded fear that violence would
11
soon occur, and used a deadly weapon to further that threat. Likewise, as to the crime of
possession of a firearm by a convicted felon, Hogan stipulated at trial that he was a
convicted felon prior to the incident. Resp. Ex. A at 40. Also, the State presented evidence
that Hogan carried and possessed a firearm. Resp. Ex. B at 26-28, 45-50. Accordingly,
the State provided competent substantial evidence to convict Hogan of possession of a
firearm by a convicted felon. Therefore, even if evidence and testimony concerning what
took place the day after the incident was not admitted, there is no reasonable probability
the jury would have failed to convict Hogan on each count. As such, it cannot be said this
evidence resulted in the denial of a fundamentally fair trial. See Snowden, 135 F.3d at
737. For the above stated reasons, the claim in Ground One is due to be denied.
B. Ground Two
In Ground Two, Hogan contends that he rejected a favorable three-year plea offer
because his trial counsel misadvised him about the maximum sentence he faced if he
proceeded to trial. Doc. 1 at 15-16. According to Hogan, his counsel failed to inform him
he could be sentenced up to thirty years in prison as a HFO; instead, counsel allegedly
told Hogan that he faced a maximum sentence of fifteen years in prison. Id. Hogan asserts
that had he been properly advised, he would have accepted the three-year plea offer. Id.
at 16.
Hogan raised a similar issue as ground one of his Rule 3.850 Motion. Resp. Ex. H
at 2-4. Following an evidentiary hearing, the circuit court denied this claim, stating in
pertinent part:
At the June 24, 2014 hearing, the parties stipulated that a ten
year sentence offer was actually made by the State, with a
three year minimum mandatory, concurrent on both charges
and that if the Defendant made a three year counter-offer, the
12
State would have accepted that offer. The parties further
stipulated that the offer and willingness to accept “. . . the three
years concurrent would not have been withdrawn by the State
in light of intervening circumstances” and that the Court would
have accepted three years concurrent and it would have been
“. . . less severe than the judgment and sentence that in fact
were imposed herein.” Because this judge was not the one
that actually imposed the fifteen year sentence and no
evidence was offered on the position of the prior judge on the
acceptance of a three year concurrent sentence, this Court
will accept the parties[‘] stipulation on that issue. Therefore, in
light of the foregoing stipulations, the State conceded that the
only matter at issue is prejudice to the Defendant.
....
The Defendant testified, at the June 24, 2014
evidentiary hearing, that he would have conveyed a three year
offer to the State had he known he was actually facing a
possible thirty year prison sentence as a habitual felony
offender following a guilty verdict at trial. Although he testified
to his belief that the State would accept a three year offer
(without providing any basis for that belief), he denied
knowledge of the State’s ten year offer with a three year
minimum mandatory and confirmed that he made no actual
offer to the State. He gave no testimony that he would have
accepted a State ten year offer with a three year minimum
mandatory had he known of that offer. On cross examination,
the Defendant also confirmed that he persisted throughout the
litigation in asserting his complete innocence of the charge.
He also acknowledged that he would not accept any offer from
the State and did not authorize any offer to be conveyed prior
to trial. According to his June 24, 2014 testimony, the
Defendant did not convey any offer because he believed he
was only facing a maximum fifteen years in prison, the
sentence he actually received following a guilty verdict.
However, he stated that he would have conveyed a three year
offer if he had known he was facing a possible thirty year
sentence because, for him, that would be equivalent to a “life
sentence” given his age.
Also testifying at the June 24, 2014 hearing was
Assistant State Attorney A. Garro, the prosecutor at trial.
According to Mr. Garro, he conveyed a ten year offer with a
three year minimum mandatory before trial. No three year
offer was ever conveyed to the Defendant nor did he agree
13
(contrary to the stipulation) to accept any three year offer from
the Defendant. Rather, Mr. Garro merely agreed to convey
any three year defense offer to his superiors for their
consideration.
Also testifying at the June 24, 2014 hearing was the
Defendant’s Assistant Public Defender at trial, B. Drake. On
cross examination, she confirmed that the Defendant
repeatedly stated that he would not plead to something he did
not do. According to her testimony, she first learned of the
Defendant’s potential thirty year HFO exposure at the initial
sentencing hearing. She was aware of the State’s ten year
offer with a three year minimum mandatory. Given the
surprise filing, she described herself as “upset” at the filing of
the HFO notice and no recollection with any specificity as to
any offer that may have been made to the State on behalf of
the Defendant. Even after the habitual offender notice was
served and the case was passed for further sentencing
proceedings, the Defendant still continued to assert his
innocence, per Ms. Drake and no defense offer was ever
made.
The stipulation of the parties is in conflict with the live
testimony and this Court finds the live testimony to be more
credible. Contrary to the stipulation of the parties, this Court
finds that the State never indicated it would accept a three
year counter-offer by the Defendant, if it were made. Rather,
the Defendant testified that he would accept a three year offer
from the State which was apparently never made or would
have conveyed a three year offer if he had known of his HFO
exposure, the ASA testified that a three year counter-offer by
the Defendant would only be considered by his superiors but
that there was no commitment to actually accept a three year
counter-offer from the Defendant, and the APD testified that
the Defendant asserted his innocence and would not plead to
anything. In an effort to make factual findings, when a
stipulation of the parties is in conflict with the record, this Court
concludes it is free to disregard the stipulation of the parties
and make its own factual findings, in light of live testimony.
[See] Taylor v. State, 399 [So. 2d] 996, 998 (Fla. [2d] DCA
2007) (requiring factual findings in support of a 3.850 order),
and Rule 3.850(8)(a), Florida Rules of Criminal Procedure,
(requiring the Court to make findings of fact pursuant to an
evidentiary hearing). Given that the Defendant testified at the
June 24, 2014 hearing that he would have conveyed a three
year offer if he knew of the thirty year exposure and ASA
14
Garro’s testimony that a three year defense offer was never
conveyed and if it had been there was no commitment by the
State to accept it, this Court finds that the Defendant has failed
to establish that “he . . . would have accepted the offer had
counsel advised the Defendant correctly. . .”, under Alcorn.[4]
Per Pietri, “there is a strong presumption that trial
counsel’s performance was not ineffective” and “the
Defendant alone carries the burden of overcoming the
presumption of effective assistance . . .”. Pietri v. State, 885
[So. 2d] 245, 252 (Fla. 2004). Because no three year counteroffer was made and facts in evidence fail to establish that the
State would have accepted the three year counter-offer by the
Defendant if actually made, the Defendant has therefore not
established “prejudice” because live testimony fails to prove
that the State would have accepted a three year counter-offer
by the Defendant before the jury’s verdict. In light of the
foregoing, this Court further concludes that the Defendant has
failed to “. . . establish a probability sufficient to undermine
confidence in [the] outcome” of the sentencing proceeding,
per Strickland. Under Pieteri quoting Strickland, “. . . to prevail
on a claim of ineffective assistance of trial counsel, Defendant
must demonstrate, first, that counsel’s performance was
deficient, and second, that the deficient performance
prejudiced the Defendant”. [See] Strickland, 466 U.S. at 687.
This the Defendant has not done with respect to prejudice. At
best, the Defendant has established that he would have
conveyed a three year counter-offer had he known of a thirty
year exposure and that the State may have accepted that offer
before trial. This Court finds that the foregoing contingency
does not establish prejudice under Alcorn, because he has
failed to establish that the State would have accepted his
three year counter-offer and thus concludes he has failed to
meet his burden under Pietri and Strickland.
Resp. Ex. O at 30-35. The First DCA per curiam affirmed the circuit court’s order without
a written opinion. Resp. Exs. S; T.
4
Alcorn v. State, 121 So. 3d 419 (Fla. 2013).
15
To the extent that the First DCA decided this claim on the merits,5 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 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, Hogan is not entitled to relief
on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, the claim in Ground Two is without merit. In federal habeas
proceedings, “a determination of a factual issue made by a State court shall be presumed
to be correct,” and the petitioner has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” § 28 U.S.C.A. § 2254(e)(1). Under Florida
law, in order to state a facially sufficient claim that counsel’s alleged deficient performance
led a defendant to reject a plea offer, the defendant must allege the following:
(1) he or she would have accepted the offer had counsel
advised the defendant correctly, (2) the prosecutor would not
have withdrawn the offer, (3) the court would have accepted
the offer, and (4) the conviction or sentence, or both, under
the offer's terms would have been less severe than under the
judgment and sentence that in fact were imposed.
Alcorn v. State, 121 So. 3d 419, 422 (Fla. 2013).
In looking through the appellate court’s per curiam affirmance to the circuit court’s
“relevant rationale,” the Court presumes that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
5
16
At the evidentiary hearing on Hogan’s Rule 3.850 Motion, Hogan testified the State
offered him a three-year plea offer, which he rejected because his counsel failed to inform
him he faced a maximum sentence of thirty years, instead of fifteen years, in prison as a
HFO. Resp. Ex. O at 64. According to Hogan, the State never offered a ten-year plea deal
with a three-year minimum mandatory. Id. at 65, 67. Notably, Hogan testified that
throughout the pre-trial process he maintained his innocence and told his counsel he
would never accept a plea deal because of his innocence. Id. at 66-67. The prosecuting
attorney, Andrew Garro, also testified at the hearing, stating that he never made a threeyear offer, but did communicate a ten-year offer with a three-year minimum. Id. at 71.
According to Garro, he let the defense know that if they made a counter-offer of three
years he would present it to his superiors, but he never assured acceptance of such a
counter offer. Id. at 72. Hogan’s defense attorney, Brenda Drake, testified at the hearing
that she was not aware Hogan faced a sentence as an HFO until the day of sentencing
when the State filed its notice of intent to seek an HFO designation. Id. at 74-76. Drake
also confirmed that the offer was a ten-year offer with a three-year minimum mandatory,
but that the State seemed open to entertaining a three-year counter offer. Id. at 76-77.
According to Drake, she encouraged Hogan to authorize a three-year counter offer, but
Hogan refused, telling her he would not entertain any plea offer because he was innocent.
Id. at 77.
The circuit court determined Drake and Garro’s testimony was credible and made
factual determinations that the State never made a three-year plea offer, Hogan would
not have accepted any plea deal, and that Hogan failed to establish that the State would
have accepted a three-year counter offer. Id. at 30-35. Hogan has offered no evidence,
17
clear and convincing or otherwise, that rebuts these factual determinations. Doc. 1.
Therefore, the Court presumes these credibility and factual determinations are correct.
See § 28 U.S.C.A. § 2254(e)(1). On these facts, Hogan has failed to establish that he
would have accepted a plea offer, that the State even offered a three-year plea deal, or
that the State actually would have accepted a three-year counter offer. Thus, Hogan has
failed to prove the first two Alcorn elements. See Alcorn, 121 So. 3d at 422. As such,
Hogan cannot demonstrate prejudice, and his claim of ineffective assistance of counsel
in Ground Two is due to be denied. See Ward, 592 F.3d at 1163.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Hogan seeks issuance of a certificate of appealability, the undersigned opines
that a certificate of appealability is not warranted. The 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, Hogan
“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 district court has rejected a petitioner’s constitutional claims on the merits,
the 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
18
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, the 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 Hogan appeals the denial of the Petition, the Court denies a certificate of
appealability. Because the Court has determined that a certificate of appealability is not
warranted, the Clerk shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case. Such termination shall serve
as a denial of the motion.
4.
The Clerk of the Court is directed to close this case and terminate any
pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 3rd day of December, 2018.
Jax-8
C:
Henry L. Hogan, #288111
Jennifer Moore, Esq.
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