Dingle v. Secretary, Florida Department of Corrections et al

Filing 21

ORDER denying 1 the petition; dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 3/18/2019. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

GREGORY DINGLE,
Petitioner,
vs.

Case No. 3:17-cv-490-J-39PDB

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.

INTRODUCTION

In his Petition for Writ of Habeas Corpus (Petition) (Doc. 1),
Petitioner Gregory Dingle is challenging a Duval County judgment of
conviction for multiple offenses: home invasion robbery with a
firearm (4024); battery on a person sixty-five years or older
(4024); home invasion robbery (4775); home invasion robbery with a
firearm

(3886);

and,

armed

robbery

with

a

firearm

(4414).

Petitioner raises a claim of ineffective assistance of trial
counsel

resulting

in

an

involuntary

plea.

Petition

at

5.

Respondents filed an Answer in Response (Response) (Doc. 15).1

1

The Court hereinafter refers to the Exhibits (Doc. 15) as
"Ex." Where provided, the page numbers referenced in this opinion
are the Bates stamp numbers at the bottom of each page of the

Petitioner filed a notice that he does not intend to file a reply
(Doc. 19).

See Order (Doc. 7).

Thus, this case is ripe for

review.2
II.

EVIDENTIARY HEARING

Petitioner has not demonstrated a need for an evidentiary
hearing or entitlement to one.

Chavez v. Sec'y, Fla. Dep't of

Corr., 647 F.3d 1057, 1060 (11th Cir. 2011), cert. denied, 565 U.S.
1120 (2012); Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

The

pertinent facts are fully developed in this record or the record
otherwise precludes habeas relief; therefore, the Court is able to
"adequately assess [Petitioner's] claim without further factual
development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003), cert. denied, 541 U.S. 1034 (2004).
III.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus. See
28 U.S.C. § 2254.

This statute "imposes important limitations on

the power of federal courts to overturn the judgments of state
courts in criminal cases."
(2019) (per curiam).

Shoop v. Hill, 139 S.Ct. 504, 506

The AEDPA statute:

"respects the authority

and ability of state courts and their dedication to the protection

exhibit. Otherwise, the page number on the particular document
will be referenced.
2

The Petition is timely filed.
- 2 -

See Response at 6-7.

of constitutional rights."

Id.

Therefore, "[u]nder AEDPA, error

is not enough; even clear error is not enough."

Meders v. Warden,

Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019) (citing
Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (per curiam)).
Applying the statute as amended by AEDPA, federal courts may
grant habeas relief:
only when the adjudication of a federal
constitutional claim "on the merits in State
court proceedings" either "resulted in a
decision that was contrary to, or involved an
unreasonable
application
of,
clearly
established Federal law, as determined by the
Supreme Court of the United States" or
"resulted in a decision that 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). "This
narrow evaluation is highly deferential, for a
state court's determination that a claim lacks
merit precludes federal habeas relief so long
as fairminded jurists could disagree on the
correctness of the state court's decision."
Morrow v. Warden, 886 F.3d 1138, 1146–47 (11th
Cir. 2018) (alteration adopted) (internal
quotation marks omitted) (quoting Harrington
v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770,
178 L.Ed.2d 624 (2011)). The decision of a
state court is "contrary to" federal law only
if it "contradicts the United States Supreme
Court on a settled question of law or holds
differently than did that Court on a set of
materially indistinguishable facts." Cummings
v. Sec'y for Dep't of Corr., 588 F.3d 1331,
1355 (11th Cir. 2009) (citation and internal
quotation marks omitted). The decision of a
state
court
"involves
an
unreasonable
application of federal law if it identifies
the correct governing legal principle as
articulated by the United States Supreme
Court, but unreasonably applies that principle
to the facts of the petitioner's case,
unreasonably extends the principle to a new
- 3 -

context where it should not apply, or
unreasonably refuses to extend it to a new
context where it should apply." Id. (citation
and internal quotation marks omitted). "The
question ... is not whether a federal court
believes the state court's determination was
correct but whether that determination was
unreasonable—a
substantially
higher
threshold."
Id.
(citation
and
internal
quotation marks omitted).
Wilson v. Warden, Ga. Diagnostic Prison, 898 F.3d 1314, 1321 (11th
Cir. 2018).
A district court is charged with reviewing the conclusions of
the state court, deferring to the state court decisions, and
granting habeas relief only if the adjudication of the claim
resulted in a decision that was contrary to, or involved an
unreasonable application of Supreme Court precedent.
will not suffice."

"Clear error

Virginia v. LeBlanc, 137 S.Ct. at 1728.

This

formidable barrier to habeas relief is very difficult to overcome
as highly deferential AEDPA deference is due, unless the petitioner
shows the state court's ruling was so lacking in justification that
there was error well understood and comprehended in existing law
beyond any possibility for fair-minded disagreement. Thus, if some
fair-minded jurists could agree with the lower court's decision,
habeas relief must be denied.

Meders, 911 F.3d at 1351.

When reviewing a state court's decision, AEDPA deference is
not based on the "specificity or thoroughness" of the decision;
indeed, the "no-grading-papers, anti-flyspecking rule remains the
law of the circuit."

Meders, 911 F.3d at 1350.
- 4 -

Consequently, a

district court is not obliged to "flyspeck the state court order or
grade it."
1345.

Wilson v. Warden, Ga. Diagnostic Prison, 898 F.3d at

Also, AEDPA deference is given even if no rationale or

reasoning is provided. Meders, 911 F.3d at 1351 (citing Harrington
v. Richter, 562 U.S. 86, 100 (2011)).
A district court should afford a presumption of correctness to
state trial and appellate courts' factual determinations.

Pope v.

Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012)
(quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)), cert.
denied, 568 U.S. 1233 (2013).

Thusly, "the petitioner 'ha[s] the

burden of rebutting the presumption of correctness by clear and
convincing evidence.'

28 U.S.C. § 2254(e)(1)."

Morrow v. Warden,

886 F.3d 1138, 1147 (11th Cir. 2018), cert. denied, No. 18-6409,
2019 WL 659905 (U.S. Feb. 19, 2019).
The Supreme Court of the United States has imparted its wisdom
in employing AEDPA review:
"Deciding
whether
a
state
court's
decision
'involved'
an
unreasonable
application of federal law or 'was based on'
an unreasonable determination of fact requires
the federal habeas court to 'train its
attention on the particular reasons—both legal
and factual—why state courts rejected a state
prisoner's
federal
claims.'"
Wilson
v.
Sellers, ––– U.S. ––––, 138 S.Ct. 1188,
1191–92, ––– L.Ed.2d –––– (2018) (quoting
Hittson v. Chatman, ––– U.S. ––––, 135 S.Ct.
2126, 2126, 192 L.Ed.2d 887 (2015) (Ginsberg,
J., concurring in denial of certiorari)). The
Supreme Court recently held that, when the
relevant
state
court
decision
is
not
accompanied by a reasoned opinion explaining
- 5 -

why relief was denied, "the federal court
should 'look through' the unexplained decision
to the last related state-court decision that
does provide a relevant rationale" and
"presume that the unexplained decision adopted
the same reasoning." Id. at 1192. "[T]he State
may rebut the presumption by showing that the
unexplained affirmance relied or most likely
did rely on different grounds than the lower
state court's decision." Id.
Johnson v. Sec'y, Dep't of Corr., 737 F. App'x 438, 441 (11th Cir.
2018) (per curiam).
If the last state court to decide a federal claim provides an
explanation for its merits-based decision in a reasoned opinion,
the district court simply reviews the specific reasons given by the
state court and defers to those reasons, if they are reasonable.
But, if no explanation is provided, for example, the opinion simply
states affirmed or denied, the district court should "look through"
the unexplained decision to the last related state-court decision
that provides relevant rationale.

The district court presumes the

unexplained decision adopted the same reasoning as the lower court,
however, this presumption is not irrebutable, as strong evidence
may refute it. See Kernan v. Hinojosa, 136 S.Ct. 1603, 1606 (2016)
(per curiam). In an effort to rebut the presumption, the state may
attempt to show the higher state court relied or most likely relied
on

different

grounds

than

the

lower

state

court,

"such

as

alternative grounds for affirmance that were briefed or argued to
the state supreme court or obvious in the record it reviewed."
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (Wilson).
- 6 -

IV.
Petitioner
counsel.

INEFFECTIVE ASSISTANCE OF COUNSEL
raises

a

claim

of

ineffective

assistance

of

To prevail on his Sixth Amendment claim, Petitioner must

satisfy the two-pronged test set forth in Strickland v. Washington,
466 U.S. 668, 688 (1984), requiring that he show both deficient
performance (counsel's representation fell below an objective
standard of reasonableness) and prejudice (there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different).

See Brewster

v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019) (reviewing court
may begin with either of the components).
"For a third of a century[,]" a counsel's performance has been
considered deficient only if counsel's performance is outside the
wide range of professionally competent assistance.

Meders, 911

F.3d at 1348. In order to obtain habeas relief, a counsel's errors
must be so great that they actually adversely effect the defense.
In

order

to

satisfy

this

prejudice

prong,

the

reasonable

probability of a different result must be "a probability sufficient
to undermine confidence in the outcome."

Strickland, 466 U.S. at

694.
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
- 7 -

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

Thus, "[i]n 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), cert. denied, 544 U.S. 982 (2005).

As a result,

"[s]urmounting Strickland's high bar is never an easy task."
Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
With respect to an ineffective assistance challenge to the
voluntariness of a guilty or no contest plea, a petitioner must
show there is a "reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted on
going to trial."

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Of

note, ineffective assistance of counsel may also require that a
- 8 -

plea be set aside on the ground that it was involuntary because
voluntariness implicates not only threats and inducements but also
ignorance and incomprehension.

See id. at 56 (quoting North

Carolina v. Alford, 400 U.S. 25, 31 (1970)) (noting that the
"longstanding test 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.'").
This Court recognizes that,
in a post conviction challenge to a guilty
plea:
[T]he
representations
of
the
defendant, his lawyer, and the
prosecutor at [the plea] hearing, as
well as any findings made by the
judge accepting the plea, constitute
a
formidable
barrier
in
any
subsequent collateral proceedings.
Solemn declarations in open court
carry a strong presumption of
verity. The subsequent presentation
of
conclusory
allegations
unsupported by specifics is subject
to
summary
dismissal,
as
are
contentions that in the face of the
record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73–74, 97
S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)
(citations omitted); see also United States v.
Gonzalez–Mercado, 808 F.2d 796, 799–800 and n.
8 (11th Cir. 1987) (while not insurmountable,
there is a strong presumption that statements
made during a plea colloquy are true, citing
Blackledge and other cases).
Bryant v. McNeil, No. 4:09CV22-SPM/WCS, 2011 WL 2446370, at *2
(N.D. Fla. May 17, 2011) (Report and Recommendation), report and

- 9 -

recommendation adopted by Bryant v. McNeil, No. 4:09CV22-SPM/WCS,
2011 WL 2434087 (N.D. Fla. June 16, 2011).
V.
Ground
ineffective

FINDINGS OF FACT AND CONCLUSIONS OF LAW
one

of

the

assistance

by

Petition

states:

"counsel

coercing/inducing

rendered

Petitioner

into

pleading guilty rendering said plea involuntary in violation of his
constitutional

6th

Amendmen[t.]"

Petition

at

5.

Petitioner

presents the following supporting facts. First, Petitioner alleges
his counsel misadvised him that the court would not impose the
maximum penalty in exchange for a guilty plea.

Id.

In fact,

Petitioner contends his attorney told him he could plead guilty
before the court and "receive possibly less, but no more than five
(5) years above that which his codefendant (Eugene Simon) received,
who was sentenced to twenty[-]five (25) years[,]" and be out with
good behavior and gain time credits in twenty-six years or less.
Id.
Petitioner also contends his counsel failed to inform him that
he faced three, consecutive ten-year minimum mandatory penalties.
Id.

Petitioner asserts that he was not aware that even if he were

to plead guilty and the court showed leniency, he would have to
serve at least thirty years in prison. Id. Petitioner claims that
had he known of the legal significance of the mandatory terms, he
would have proceeded to trial on the charges.

Id. at 6.

Petitioner also claims his attorney told him that the court
would have no discretion to sentence Petitioner to anything but
- 10 -

life if Petitioner were to go to trial and be found guilty.

Id.

Petitioner alleges, based on this advice, he thought his penalty
would be more harsh if he went to trial.

Id.

He states he would

have proceeded to trial on the charges had he known the facts
concerning the consequences of his plea.

Id.

Petitioner states

counsel threatened a harsher sentence if Petitioner chose to go to
trial,

and

using

these

threats,

she

coerced

Petitioner to forego his right to trial.3

and/or

induced

Id. at 7.

Respondents argue a portion of ground one is unexhausted and
procedurally defaulted, that is, that portion of the claim where
Petitioner asserts his attorney misadvised him that if he proceeded
to trial the court would have to impose a life sentence.
at 16, 21-22.
must

ask

Response

In addressing the exhaustion question, the Court

whether

the

claim

was

raised

in

the

state

court

proceedings and whether the state court was alerted to the federal
nature of the claim:
Before seeking § 2254 habeas relief in
federal court, a petitioner must exhaust all
state court remedies available for challenging

3

Although not raised as a separate ground for relief,
Petitioner alleges the trial court failed to fully advise him of
all of the consequences of his open plea during the plea colloquy,
in violation of the Due Process Clause of the Fourteenth Amendment.
Petition at 7. In particular, Petitioner asserts that, although
the court informed him of the maximum penalty, it failed to advise
him of the mandatory minimum penalty he would receive, thus
depriving him of due process of law. Id. The court will address
this matter in the context of the ineffective assistance of
counsel/involuntary plea claim, as that is the claim Petitioner
actually exhausted in the state courts, not a due process claim
based on the trial court's actions or omissions. See Petition,
Ground One, at 5.
- 11 -

his conviction. See 28 U.S.C. § 2254(b), (c).
For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to
the state courts." McNair v. Campbell, 416
F.3d 1291, 1302 (11th Cir. 2005). The Supreme
Court has suggested that a litigant could do
so by including in his claim before the state
appellate court "the federal source of law on
which he relies or a case deciding such a
claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158
L.Ed.2d 64 (2004). The Court's guidance in
Baldwin "must be applied with common sense and
in light of the purpose underlying the
exhaustion requirement"—namely, giving the
state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at
1302. Thus, a petitioner could not satisfy the
exhaustion requirement merely by presenting
the state court with "all the facts necessary
to support the claim," or by making a
"somewhat similar state-law claim." Kelley,
377 F.3d at 1343–44. Rather, he must make his
claims in a manner that provides the state
courts
with
"the
opportunity
to
apply
controlling legal principles to the facts
bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.
2012), cert. denied, 568 U.S. 1104 (2013).
Upon review, Petitioner exhausted the claim that his attorney
misadvised him that if he proceeded to trial the court would have
to impose a life sentence by raising it in his Rule 3.850 motion.
Ex. M at 8-9.

He pursued this argument on appeal of the denial of

the Rule 3.850 motion.

Ex. N at 8-9.

Appeal (1st DCA) affirmed per curiam.
exhausted.

The First District Court of
Ex. O.

Thus, the claim is

It is not subject to a procedural bar.

- 12 -

In denying Petitioner's claim of ineffective assistance of
counsel

resulting

in

an

involuntary

plea,

the

circuit

court

recognized the two-pronged Strickland standard of review for the
claims of ineffective assistance of counsel, and addressed its
application in the context of guilty pleas, relying on Hill.
M at 16-17.

Ex.

The court succinctly summarized Petitioner's claim of

ineffective assistance of counsel for: "(1) failing to properly
investigate

and

prepare

and

adequate

defense;"

"(2)

coercing

Defendant into pleading guilty to crimes he did not commit[;]" and
(3) raising "a third ground of cumulative error."

Id. at 16.

The circuit court provided a brief procedural history which
this Court will reiterate to provide context for Petitioner's claim
for relief:
On September 20, 2010, Defendant entered
an open plea of guilty in all four cases.
(Ex. A) On October 20, 2010, the Court
sentenced Defendant in case 2009-CF-03886 as a
habitual felony offender to life in prison,
with a ten-year minimum mandatory on one count
of Home Invasion Robbery. (Ex. B at 4-5.) In
case 2009-CF-04024, the Court sentenced
Defendant as a habitual felony offender to
life in prison on one count of Home Invasion
Robbery and ten years in prison on one count
of Battery on a Person Sixty-Five Years of Age
or Order [sic], with a ten-year minimum
mandatory. (Ex. C at 4-6.) In case 2009-CF04414, the Court sentenced Defendant as a
habitual felony offender to life in prison on
one count of Armed Robbery, with a ten-year
minimum mandatory. (Ex. D at 4-5.) In case
2009-CF-04775, the Court sentenced Defendant
as a habitual felony offender to life in
prison on one count of Home Invasion Robbery.
(Ex. E at 4-5.)
The Court ordered the
sentence imposed in case 2009-CF-04775 to run
concurrently with the sentence imposed in case
- 13 -

2009-CF-03886.
(Ex. E at 6.)
The Court
further ordered the ten-year minimum mandatory
sentence imposed in case 2009-CF-04414 to run
consecutively
to
the
ten-year
minimum
mandatory sentences imposed in cases 2009-CF04024 and 2009-CF-03886. (Ex. D at 6.) The
First District Court of Appeal affirmed the
judgments and sentences in Mandates issued on
September 7, 2011. (Ex. F.)
Ex. M at 15-16.
Importantly, the circuit court recognized that, with regard to
a claim of ineffective assistance of counsel arising out of the
plea process, a petitioner must satisfy the prejudice requirement,
meaning he must show that but for counsel's errors, there is a
reasonable probability that the petitioner would not have entered
a plea and would have insisted on going to trial.
See Hill, 474 U.S. at 58.

Ex. M at 16.

The circuit court further recognized it

should consider "the totality of the circumstance[,]" including the
likelihood of success at trial of a possible defense, the content
of the plea colloquy, and the difference between the maximum
possible sentence and the sentence imposed.

Ex. M at 17 (citation

omitted).
The circuit court found Petitioner was not entitled to an
evidentiary hearing.

Id. at 18-19.

the

and

plea

conference

The circuit court relied on

Petitioner's

representations

at

the

conference, including the fact Petitioner attested that pleading
guilty was his decision and no one had threatened, intimidated, or
coerced him.

Id. at 18-19.

During the plea colloquy, when

Petitioner said he had not had enough time to discuss the case and
- 14 -

possible defenses with counsel, the court afforded Petitioner
additional time to discuss his plea and concerns with counsel. Id.
at 19.

After a recess, Petitioner informed the court he had

sufficient time to speak with counsel and she had answered his
questions.

Id.

Petitioner also told the court there were no

witnesses to investigate or motions he wanted counsel to file prior
to entry of the plea.

Id.

Petitioner expressed his satisfaction

with counsel's representation.

Id.

Petitioner admitted guilt.

Id.
In

its

post

conviction

review,

the

circuit

court

found

Petitioner was "impermissibly attempting to go behind his plea,"
and denied his claim of ineffective assistance of counsel resulting
in an involuntary plea.
counsel

failed

to

Id.

To the extent Petitioner claimed his

investigate,

the

circuit

court

determined

Petitioner knew this prior to asking the court to accept his plea
and was well aware of any of counsel's deficiencies prior to
entering the plea.

Id. at 20.

To the extent Petitioner claimed

his counsel failed to speak up and clarify the facts at the
hearing, the circuit court found Petitioner spoke up at the hearing
offering his own rendition of the facts, but Petitioner still
decided to enter his plea.

Id. at 20.

As such, the circuit court

concluded the plea was not involuntarily or unknowingly entered
based on any failure to investigate.

Id.

To the extent Petitioner was claiming he did not have a
firearm during the home invasion robbery, the circuit court held,
- 15 -

based on Petitioner's own admission, the home invasion robbery was
underway

when

Petitioner

gave

his

co-defendant

the

firearm;

therefore, Petitioner possessed the firearm during the commission
of the offense. Id. Thus, the ten-year minimum mandatory term was
well supported by the facts, even as alleged by Petitioner. Id. at
20-21.

In conclusion, the circuit court found neither deficient

performance nor prejudice and denied post conviction relief.

Id.

at 21.
To the extent Petitioner claimed he was coerced into pleading
guilty to crimes he did not commit, the circuit court soundly
rejected that claim as well. Id. at 21. Additionally, the circuit
court found the record refuted Petitioner's contention that his
counsel advised him that if he made an open plea, Petitioner would
possibly receive less, but not more than, thirty years in prison.
Id.

The

plea

transcript

shows,

even

based

on

recitation of the facts, he possessed a firearm.

Petitioner's
Id. at 21-22.

Finally, the circuit court addressed Petitioner's assertion that he
did not know that he would be sentenced to three consecutive tenyear minimum mandatory sentences.

Id. at 22.

The court said

defense counsel could not have known what sentence Petitioner would
receive based on an open plea.
The

circuit

court

found

Id.
the

record

refuted

Petitioner's

contention that he did not know the exact nature of the charges or
the consequences of his plea.

Id.

The court relied on the plea

colloquy, and its thorough review of the charges and underlying
- 16 -

facts.

Id.

The court noted Petitioner was well aware of the

consequences of his plea as demonstrated by the extensive colloquy
between the trial court and Petitioner.

Id.

Also, the circuit

court said Petitioner could not go behind his sworn statements that
no one had made him promises or assurances concerning his plea and
sentence and no one coerced him. Id. Finding Petitioner failed to
demonstrate deficient performance or prejudice, the circuit court
denied post conviction relief.

Id.

The 1st DCA affirmed this decision without opinion.

Ex. O.

Pursuant to Wilson, it is assumed the 1st DCA adopted the reasoning
of the circuit court in denying the Rule 3.850 motion.

The state

has not attempted to rebut this presumption. Deference under AEDPA
should be given to the last adjudication on the merits provided by
the 1st DCA.
The state court's decision is not inconsistent with Supreme
Court precedent, including Stickland and Hill.

The state court's

adjudication of this claim is not contrary to or an unreasonable
application of Strickland and Hill, or based on an unreasonable
determination of the facts.

As such, Petitioner's claim of

ineffective assistance of counsel resulting in an involuntary plea
is due to be denied.
In the alternative, Petitioner's claim is belied by the
record.

The record demonstrates Petitioner signed the Plea of

Guilty form.

It states, in pertinent part,

I hereby enter my plea of guilty because I am
guilty. Before entering such plea of guilty,
- 17 -

I was advised of the nature of all the charges
against me, the statutory offenses included
within such charges, the range of maximum
allowable punishments for each charge, all the
possible defenses to each charge, and all
circumstances in mitigation of such charges.
I have been advised of all other facts
essential to a full and complete understanding
of all offenses with which I have been
charged, and of all offenses to which I am
entering this plea.
I have been advised of
all direct consequences of the sentences to be
imposed.
I consider this plea to be to my advantage,
and I have freely and voluntarily entered my
plea of guilty. I have not been offered any
hope of reward, better treatment, or certain
type of sentence to get me to enter this plea.
I have not been promised by anyone, including
my attorney, that I would actually serve any
certain amount of time, and I understand that
any early release of any sort is not a part of
this plea agreement and is entirely within the
discretion of governmental agencies other than
this Court.
I have not been threatened,
coerced, or intimidated by any person,
including my attorney, in any way in order to
get me to enter this plea.
Ex. A at 44 (emphasis added).
Regarding consultation with counsel, the plea form states:
I have had ample time to discuss this
agreement with my attorney. My attorney and I
have read this agreement regarding my guilty
plea together in private, and my attorney has
explained all portions of this agreement to my
complete understanding and satisfaction. We
have fully discussed all aspects of this case,
including all possible defenses to all
charges, including self-defense and any
defense based upon any disability, disease,
insanity, or intoxication.
My attorney has
given me the opportunity to ask questions and
has answered all of my questions fully and
completely. My attorney has taken all actions
requested by me, or has explained to my
- 18 -

satisfaction and agreement why such actions
should not be taken, and I concur with my
attorney's decisions in that regard.
I am
completely
satisfied
with
the
services
rendered by my attorney on my behalf in this
case.
Id.
The form also references a defendant's time for consideration
and reflection.

Id. at 45.

Petitioner acknowledged by his

signature that he entered the plea freely and voluntarily, the plea
form was true and correct in all respects, and the "form represents
the

sole

and

complete

agreement"

and

there

were

no

other

agreements, representations, or promises made by Petitioner, his
attorney, the trial court, or any representative of the state. Id.
The form is signed by Petitioner, his attorney, the deputy clerk,
and the trial judge.

Id.

The record demonstrates the following. Petitioner assured the
trial court he was entering his pleas with full knowledge and
consent.

Id. at 89.

When the court asked Petitioner if he

understood that the maximum sentence he could receive on the
charges was life imprisonment, he responded in the affirmative.
Id.

The court specifically asked if anyone promised Petitioner "a

certain sentence or special treatment of any kind or reward, and
Petitioner responded, "[n]o."

Id. at 92.

Petitioner admitted his

guilt to the offenses and declared his satisfaction with counsel.
Id. at 94.

The state presented a factual basis for the plea, and

after listening to Petitioner's rendition of some of the facts

- 19 -

underlying one of the crimes, the court still found a factual basis
for the plea.

Id. at 94-101.

During this plea proceeding, the court sought confirmation
that Petitioner could read and write. Id. at 102. Petitioner said
he could.

Id.

Petitioner told the court he had a chance to read

and go over the plea form with his counsel.

Id.

Petitioner

assured the court he could understand everything on the form.

Id.

Petitioner also attested that everything on the form was true and
correct.

Id.

He told the court he signed the form.

Id.

After

providing Petitioner with his rights and seeking confirmation that
Petitioner wanted to plead guilty, the trial court found Petitioner
was entering his plea freely, intelligently, and voluntarily "with
a full and complete understanding of the nature of the offense, the
maximum sentence and the consequences of his plea."

Id. at 103.

Solemn declarations in open court carry a strong presumption
of verity.

Notably, Petitioner expressed complete satisfaction

with his counsel at the plea proceeding and agreed no questions
remained unanswered.

Id. at 93-94.

not been promised anything.

Petitioner also stated he had

Id. at 92.

At the sentencing proceeding, the trial court immediately
asked the parties if they were in agreement that the minimum
mandatory is ten years on each of the counts.

Ex. A at 114.

The

prosecutor responded there were three minimum mandatories, and
Petitioner was facing consecutive minimum mandatory sentences,
amounting to serving a minimum mandatory term of thirty years in
- 20 -

prison.

Id.

The prosecutor clarified his response, stating only

case number 09-4775 had no minimum mandatory because Petitioner did
not possess a gun during the course of that crime.

Id. at 115.

When Petitioner addressed the trial court concerning its imposition
of sentence, he made no mention of the minimum mandatory terms he
faced.

Id. at 117.

Also, he did not question the accuracy of the

explanation of the mandatory terms or seek to speak to his counsel.
Instead, he said he was never a bad person, he had issues dealing
with drugs, and he never intended to hurt anyone.

Id.

In

addition, he admitted he broke the law, and said: "I was going to
take this case to trial, you know, on it to face my victims and
apologize to them for what I had done."

Id. at 117-18.

The prosecutor presented argument that Petitioner pled to
"four very egregious life felonies."

Id. at 121.

The prosecutor

pointed out that the victim identified Petitioner in a photo spread
as the person who had the gun in the house, although Petitioner
disputed that fact (but admitted he had the gun outside, and gave
it to his co-defendant after the co-defendant's girlfriend entered
the house).

Id. at 123.

Also of import, Petitioner faced "repeat offender court." Id.
at 124.

The prosecutor asked that Petitioner be given life in

prison with thirty years minimum mandatory.

Id.

Defense counsel

reminded the court that Petitioner denied bashing people over the
head and asked for mercy.

Id. at 124-25.

Defense counsel asked for mercy from the court:
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Your Honor, the only thing we can ask is
for Your Honor's mercy. He has pled to the
mercy of the court. He understands that he is
facing a substantial amount of time. And the
tragedy is his record is not really bad. He
is, though, a habitual offender because he
does have a conviction within the specified
amount of time for him to be classified that
way.
I don't believe, to my understanding, his
record is terribly worse than who was
sentenced to 25 years with a ten-year minimum
mandatory. We would just ask Your Honor to
not sentence him to a life sentence, but to
sentence him to some period of years so that
after he has paid the consequences for his
actions, which there was no excuse for, that
he may have an opportunity to go back into
society
and
live
and
learn
from
his
experiences.
Id. at 125-26.
The court asked if the co-defendant received twenty-five
years, and the prosecutor confirmed that fact and explained the codefendant was "non ROC" and was the possessor of the gun in only
one case.

Id. at 126.

The court asked if the ten-year minimum

mandatory is pursuant to 775.087, and the prosecutor stated yes,
and said the minimum mandatory terms must run consecutively by law.
Ex. A at 127.

The trial court found Petitioner's current offenses

to be violent, but also recognized Petitioner did not have a
violent past.

Id. at 128-29.

The court explained that the

habitual felony offender law and the firearm law put Petitioner "in
a totally different situation" from his co-defendant.

- 22 -

Id. at 129.

The record shows Petitioner was fully aware, based on the
information, amended information, and the Notice of Intent to
Classify Defendant as an Habitual Felony Offender (Notice), he was
facing time pursuant to Fla. Stat. § 775.084 as an habitual felony
offender and was in repeat offender court due to his criminal
history and status.

See Ex. A at 10-11, 13, 23-24.

By filing the

Notice, the state ensured Petitioner was fully advised the Florida
Sentencing Guidelines would not apply to his sentences. Id. at 13.
Taking all of this into account, as the trial court did,
Petitioner's claim is due to be denied.

He signed the plea form,

which mentioned no sentencing cap or negotiated term of years.
Petitioner provided sworn testimony that he had not been promised
anything in return for his plea.

He swore the plea form was true

and admitted his guilt to the offenses.

Based on the record,

Petitioner was facing life in prison as an habitual felony offender
who possessed a firearm during three of the offenses, and there was
no measure of uncertainty in this regard.
At sentencing, Petitioner made no mention that his counsel had
misled Petitioner to believe he would receive no more than thirty
years in prison if he pled guilty. Instead, Petitioner said he was
not a bad or violent person and had issues dealing with drugs.

His

counsel begged for mercy from the court, and defense counsel placed
on the record what she perceived to be mitigating factors and
argued for a sentence for a term of years rather than life.

- 23 -

There

is

a

strong

presumption

declarations in open court are true.
presumption.

that

Petitioner's

solemn

He has not overcome this

Petitioner's claims of an involuntary plea based on

alleged misadvice are without merit based on his sworn statements
to the contrary.

The record, including the signed plea form and

the sworn testimony, support the trial court's holding denying
Petitioner's claim for relief based on ineffective assistance of
counsel.
Even if counsel had intimated at some point there was a chance
Petitioner could plead guilty before the court and receive possibly
less, but no more than five years above that which his codefendant
received (twenty-five years), the record demonstrates that no
confusion existed by the time of the signing of the plea form and
the plea proceeding. Petitioner signed the plea form, which had no
sentencing range or cap. Furthermore, Petitioner assured the court
no promises had been made to him.

Lee v. United States, 137 S.Ct.

1958, 1967 (2017) ("Courts should not upset a plea solely because
of post hoc assertions from a defendant about how he would have
pleaded

but

instead

look

for
to

his

attorney's

contemporaneous

deficiencies;
evidence

to

[j]udges

should

substantiate

a

defendant's expressed preferences.").
The state asked the trial court to give Petitioner a life
sentence, and defense counsel asked for mercy from the court.

At

sentencing, Petitioner never questioned the sentence he was facing,
including the consecutive minimum mandatory terms, even after the
- 24 -

matter of consecutive minimum mandatory terms was raised and
thoroughly discussed.
Petitioner admitted his guilt and made an open plea to the
court.

Although the defense may have hoped there was a chance of

obtaining a more favorable sentence than life by making an open
plea to the court and begging for mercy, as evinced by counsel's
plea for a sentence for a term of years less than life, the trial
court

remained

requested:

unpersuaded,

and

gave

the

sentence

the

state

life with the required, consecutive minimum mandatory

terms.
Petitioner's

current

displeasure

with

his

counsel's

performance is directly related to Petitioner's dissatisfaction
with his life sentence, a sentencing matter left to the sound
discretion of the court, within the bounds of a lawful sentence.
Petitioner's and his lawyer's representations, the prosecutor's
representations at the plea proceeding, and the findings of the
trial court accepting the plea, present a formidable barrier which
Petitioner has not overcome.

This Court presumes Petitioner's

solemn declarations in open court have strong veracity, and they
certainly have not been overcome by his allegation that he was
misled by counsel's advice.

Petitioner is not entitled to relief

on his claim of ineffective assistance of counsel.
Finally, for purposes of this opinion, the Court assumes
arguendo Petitioner's counsel failed to advise Petitioner he was
facing three, consecutive minimum mandatory terms of ten years
- 25 -

each, totaling a thirty-year minimum mandatory term, prior to his
plea.4

Based on a review of the record, the trial court, when

accepting Petitioner's plea, failed to ensure Petitioner understood
any mandatory minimum penalty provided by law.
P.

3.172(c)(1).

Thus,

any

alleged

See Fla. R. Crim.

deficiency

performance was not cured by the court.

in

counsel's

Indeed, the mandatory

minimum penalty was not referenced in the plea form or mentioned
during the plea proceeding.
Even assuming deficient performance for counsel's failure to
advise

Petitioner

he

was

facing

minimum

mandatory

penalties,

satisfying the first prong of the Strickland test, the question
remains whether Petitioner has satisfied the prejudice requirement.
To answer this question and prevail, Petitioner must demonstrate
defense counsel's constitutionally ineffective performance actually
affected the outcome of the plea process.

Under the circumstances

at bar, it did not; therefore, Petitioner is not entitled to habeas
relief.

An explanation follows.

Petitioner was facing a life sentence, without parole, as an
habitual felony offender, and the minimum mandatory terms were
necessarily of no consequence in the decision-making process as to
whether to plead guilty or go to trial.

4

The record demonstrates

The trial court is required to determine that a defendant,
pleading to the court, understands the nature of the charge to
which the defendant is pleading; the mandatory minimum penalty, if
applicable; and the maximum possible penalty. Harris v. McNeil,
No. 3:05-cv-306-J-32HTS, 2008 WL 3540845, at *10 (M.D. Fla. Aug.
12, 2008) (relying on Rule 3.172(c)(1), Fla. R. Crim. P).
- 26 -

Petitioner was fully aware that he was facing life in prison.
Indeed, Petitioner, at the plea hearing, confirmed he was aware he
was facing the statutory maximum sentence of life and no one had
promised him a specific sentence.
timely

notice

sentencing.5

the

state

Beforehand, Petitioner received

intended

to

seek

habitual

offender

Significantly, a person sentenced as an habitual

felony offender "is ineligible for parole or gain time."

Lewis v.

State, 625 So.2d 102 (Fla. 1st DCA 1993) (per curiam). See Johnson
v. State, 9 So.3d 640, 641 (Fla. 4th DCA 2009) (recognizing
ineligibility for parole from an HFO life sentence).6
In order to satisfy the prejudice prong, Petitioner must show
there is a reasonable probability that, but for counsel's errors,
he would not have pleaded guilty and would have insisted on going
to trial.

Under these circumstances, the implementation of the

minimum mandatory sentences had absolutely no effect on the length
of sentence and the amount of time Petitioner will serve in prison.
See Response at 20.

Petitioner was facing a life sentence under

the habitual felony offender act, which means he faced serving life

5

The state filed notice of its intent to seek habitual
offender status pursuant to Fla. Stat. § 775.084. Ex. A at 13.
The state notified Petitioner it would rely on his convictions for
sale or delivery of cocaine (July 5, 2005) and possession of
cocaine (February 6, 2008). Id. Moreover, the state specifically
stated it would seek to have Petitioner sentenced to life
imprisonment. Id.
6

There is no mention of the possibility of parole or any
eligibility for gain time in the plea colloquy.
The plea form
stated early release was not a part of the plea. Ex. A at 44.
- 27 -

in prison, without parole or gain time,7 and the minimum mandatory
terms were of no consequence and could not prejudice his decisionmaking.
Thus, Petitioner cannot prove sufficient prejudice flowing
from his counsel's alleged deficient conduct in failing to advise
Petitioner of the minimum mandatory terms he faced prior to his
plea.

Petitioner's plea represents a voluntary and intelligent

choice among the alternative courses of action open to Petitioner
at the time he elected to enter the plea.

Petitioner made an open

plea, completely relying on the mercy of the trial court, in hopes
of obtaining a sentence of a term of years, not the life sentence
he was eligible for and the state was seeking.

At sentencing,

however, the trial court was not abundantly merciful, feeling
constrained by the fact Petitioner was in reoffender court as an
habitual felony offender, and he possessed a firearm during several
violent offenses: "egregious life felonies."

Ex. A at 121.

Petitioner contends he was not aware that if he pled guilty
and the court showed mercy, he would still have to serve thirty
years in prison, and had he known of the legal significance of the

7

Eligibility for early release or parole is a collateral
matter; therefore, not a matter upon which Petitioner can base a
challenge to the voluntary and knowing nature of his guilty plea.
See Johnson v. Dees, 581 F.2d 1166, 1167 (5th Cir. 1978) (per
curiam) (citation omitted) (a trial court's failure to inform a
petitioner he would not be eligible for parole and could be denied
gain time as a serious multiple offender did not preclude the entry
of a voluntary and intelligent guilty plea since such matters are
collateral consequences).
- 28 -

mandatory terms, he would have proceeded to trial on the charges.
The problem with this contention is that there was no real legal
significance of the mandatory terms because Petitioner was facing
and received a life sentence, a sentence he well understood he was
facing whether he pled or went to trial.

Importantly, parole

eligibility [or gain time eligibility] does not come into play
because Petitioner was an habitual felony offender, not entitled to
parole or gain time.

See

Hill v. Lockhart, 474 U.S. at 60

(discussing the lack of prejudice necessary to satisfy the second
prong of Strickland, because the petitioner's mistaken belief
concerning

parole

eligibility

would

have

affected

both

the

calculation of time to serve under the negotiated plea agreement
but also the calculation of the time the petitioner would serve if
he went to trial and was convicted).
In McCullough v. Sec'y, DOC, No. 3:13-CV-408-J-39JRK, 2015 WL
7076734, at *4 (M.D. Fla. Nov. 13, 2015), this Court rejected a
claim of an involuntary plea based on the alleged ineffective
assistance of counsel:
the record shows that Petitioner pleaded
guilty because he wished to do so, fully
apprised that he was facing a maximum penalty
of thirty years in prison as a habitual felony
offender. See United States v. Castro, 736
F.3d 1308, 1314 (11th Cir. 2013) (per curiam)
(the court was not convinced that the
defendant would have rejected the plea
agreement as he avoided prosecution of
numerous offenses and faced a stiff sentence
if he proceeded to trial), cert. denied, 134
S.Ct. 1331 (2014).
- 29 -

Similarly, in this case, the record demonstrates Petitioner
pled guilty because he wished to do so, fully apprised he was
facing a maximum penalty of life as an habitual felony offender,
but hopeful the trial court would be merciful and sentence him to
some term of years less than life.8

It is clear there existed

substantial evidence of Petitioner's guilt in all of the charged
offenses.

The state provided the factual basis for the offenses

during the plea proceeding, and the evidence included a victim
picking Petitioner out of a photo spread and positively identifying
him as the perpetrator, a defendant in another case providing a
sworn statement implicating Petitioner and his act of carrying a
gun, co-defendants implicating Petitioner in the robbery of a store
and the victim's identification of Petitioner through a photo
spread, a victim positively identifying Petitioner using force
during a home invasion robbery and his co-defendants implicating
him,

and

finally,

co-defendants

stating

Petitioner

entered

a

residence with a gun and the victim picking Petitioner out of a
photo spread as being the person who hit the victim with a gun. Ex.
A at 94-97.

8

There is no reasonable probability that Petitioner, being
tried in re-offender court, was going to be sentenced to anything
close to the time his non-reoffender court co-defendant received
(twenty-five years with a ten-year minimum mandatory), particularly
when the evidence showed the co-defendant only possessed a firearm
on one occasion and Petitioner possessed a firearm on several
occasions. Ex. A at 94-97, 125-26. Apparently, the victims and
other witnesses were ready and willing to testify as to
Petitioner's actions, including possessing a firearm for all but
one of the charged offenses (09-4775).
- 30 -

Petitioner faced a very stiff sentence if he proceeded to
trial with a wealth of evidence against him, including victims, codefendants, and others naming, identifying, and implicating him in
numerous violent crimes. The record demonstrates Petitioner wanted
to show the trial court he was not really a bad person, never
wanted to hurt anyone, had a non-violent criminal history, had an
issue dealing with drugs, did some dumb things after getting in a
financial bind, and was desirous of making an open plea in hopes of
receiving mercy from the court.

Id. at 117-18.

As such, defense

counsel asked the trial court to give Petitioner a sentence less
than life and an opportunity to go back into society after serving
a period of years.

Id. at 126.

Notably, defense counsel never

stated a specific term of years and the plea form did not reference
a term of years.
After due consideration, the Court finds Petitioner has not
shown a reasonable probability exists that the outcome of the
proceeding would have been different if his lawyer had given the
advice Petitioner has alleged should have been provided.

As noted

by Respondents, "[w]ith or without the minimum mandatory sentence
petitioner will still be in prison for the rest of his natural
life."

Response at 20.

Petitioner knew he faced a maximum

sentence of life, and he readily admitted that no one promised him
a specific sentence for his open plea or threatened, intimidated,
or coerced him into pleading guilty.

Petitioner entered a sworn

plea and has not overcome the formidable barrier put in place
- 31 -

through his sworn representations and the representations of his
lawyer and the prosecutor, as well as the findings of the court
accepting the plea.

Indeed, he has not overcome the strong

presumption of verity of his solemn declarations in the plea
proceeding.

Thus, Petitioner is not entitled to habeas relief.

Accordingly, it is now
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DENIED.

2.

This action is DISMISSED WITH PREJUDICE.

3.

The Clerk shall enter judgment accordingly and close this

4.

If Petitioner appeals the denial of his Petition, the

case.

Court denies a certificate of appealability.9
has

determined

that

a

certificate

of

Because this Court

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

9

This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
- 32 -

filed in this case.

Such termination shall serve as a denial of

the motion.
DONE AND ORDERED at Jacksonville, Florida, this 18th day of
March, 2019.

sa 3/6
c:
Gregory Dingle
Counsel of Record

- 33 -