Gomez v. Secretary, Florida Department of Corrections et al

Filing 34

ORDER denying 22 second amended 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 3/10/2021. (LDO)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ANDREW MICHAEL GOMEZ,
Petitioner,
vs.

Case No. 3:17-cv-1172-BJD-MCR

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

INTRODUCTION

Petitioner Andrew Michael Gomez filed a Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus By a Person in State Custody (Doc. 1). He is
proceeding on a Second Amended Petition (Petition) (Doc. 22). He challenges
his state court (Duval County) conviction for two counts of murder in the
second degree. Respondents filed an Answer in Response to Order to Show
Cause (Response) (Doc. 24).1 Petitioner filed a Reply (Doc. 29). See Order

Respondents filed an Appendix (Doc. 24). In this opinion, the Court references the page
numbers assigned by the electronic filing system.
1

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(Doc. 8).

Petitioner calculates the Petition is timely.

Petition at 15.

Respondents do not counter this contention.
II.

EVIDENTIARY HEARING

“In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of
Corr., 834 F.3d 1299, 1318 (11th Cir. 2016) (citations omitted), cert. denied,
137 S. Ct. 2245 (2017). To be entitled to an evidentiary hearing, the petitioner
must allege “facts that, if true, would entitle him to relief.” Martin v. United
States, 949 F.3d 662, 670 (11th Cir.) (quoting Aron v. United States, 291 F.3d
708, 715 (11th Cir. 2002)) (citation omitted), cert. denied, 141 S. Ct. 357 (2020).
See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011)
(opining a petitioner bears the burden of establishing the need for an
evidentiary hearing with more than speculative and inconcrete claims of need),
cert. denied, 565 U.S. 1120 (2012); Dickson v. Wainwright, 683 F.2d 348, 351
(11th Cir. 1982) (same).
If the allegations are contradicted by the record, patently frivolous, or
based upon unsupported generalizations, the court is not required to conduct
an evidentiary hearing.

Martin, 949 F.3d at 670 (quotation and citation

omitted). In this case, the pertinent facts are fully developed in this record or

2

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the record otherwise precludes habeas relief; 2 therefore, the Court can
"adequately

assess

[Petitioner's]

claim[s]

without

further

factual

development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert.
denied, 541 U.S. 1034 (2004). Petitioner has not met his burden as the record
refutes the asserted factual allegations or otherwise precludes habeas relief.
Therefore, the Court finds Petitioner is not entitled to an evidentiary hearing.
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
III.

HABEAS REVIEW

In a federal habeas proceeding, a reviewing court asks whether the
petitioner is detained “in violation of the Constitution or laws or treaties of the
United States.”

28 U.S.C. § 2241(c)(3).

The Antiterrorism and Effective

Death Penalty Act (AEDPA) governs a state prisoner's federal petition for
habeas corpus and “restricts the power of federal courts to grant writs of
habeas corpus based on claims that were ‘adjudicated on the merits’ by a state
court.”

Shinn v. Kayer, 141 S. Ct. 517, 520 (2020) (per curiam).

See 28

U.S.C. § 2254; Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354
(11th Cir. 2020) (citation omitted) (acknowledging the deferential framework
of AEDPA for evaluating issues previously decided in state court), petition for

2 The state court conducted a post-conviction evidentiary hearing and Petitioner was

represented by counsel. (Doc. 24-2 at 284-85).

3

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cert. filed, (U.S. Nov. 6, 2020); Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (per
curiam) (recognizing AEDPA imposes “important limitations on the power of
federal courts to overturn the judgments of state courts in criminal cases").
Using this framework:
[federal courts] are prohibited from granting a state
prisoner’s habeas corpus petition unless the relevant
state court decision on the merits of the petitioner’s
claim ‘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.’
James v. Warden, Holman Corr. Facility, 957 F.3d 1184, 1190 (11th Cir. 2020)
(quoting 28 U.S.C. § 2254(d)(1)-(2)), cert. denied, No. 20-708, 2021 WL 769704
(U.S. Mar. 1, 2021). This is a high hurdle, not easily surmounted:
A decision is “contrary to” clearly established
federal law if the state court applied a rule that
contradicts governing Supreme Court precedent, or if
it reached a different conclusion than the Supreme
Court did in a case involving materially
indistinguishable facts. Williams v. Taylor, 529 U.S.
362, 412-13, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000).
A state court decision involves an “unreasonable
application” of clearly established federal law if the
court identifies the correct legal principle but applies
it unreasonably to the facts before it. Id. “The question
under AEDPA is not whether a federal court believes
the state court’s determination was incorrect but
whether that determination was unreasonable – a
substantially higher threshold.”
Schriro v.
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Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 167 L.Ed.2d
836 (2007).
James, 957 F.3d at 1190-91.

Indeed, if the state court applied clearly

established federal law to reasonably determined facts when determining a
claim on its merits, “a federal habeas court may not disturb the state court’s
decision unless its error lies ‘beyond any possibility for fairminded
disagreement.’” Kayer, 141 S. Ct. at 520 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)).
A state court's finding of fact, whether a state trial court or appellate
court, is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1).
“The state court’s factual determinations are presumed correct, absent clear
and convincing evidence to the contrary.” Sealey, 954 F.3d at 1354 (quoting
28 U.S.C. § 2254(e)(1)). This presumption of correctness, however, applies
only to findings of fact, not mixed determinations of law and fact. Brannan v.
GDCP Warden, 541 F. App'x 901, 903-904 (11th Cir. 2013) (per curiam)
(recognizing the distinction between a pure question of fact from a mixed
question of law and fact), cert. denied, 573 U.S. 906 (2014). Furthermore, the
second prong of § 2254(d), requires this Court to “accord the state trial court
[determination of the facts] substantial deference.” Dallas v. Warden, 964
F.3d 1285, 1302 (11th Cir. 2020) (quoting Brumfield v. Cain, 576 U.S. 305, 314
5

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(2015)).

As such, a federal district court may not supersede a state trial

court’s determination simply because reasonable minds may disagree about
the finding. Id. (quotation and citation omitted).
Finally, a “look through” presumption is applicable. Where there has
been one reasoned state court judgment rejecting a federal claim followed by
an unexplained order upholding that judgement, federal habeas courts employ
a "look through" presumption: "the 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)
(Wilson).
IV.

INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner claims he was deprived of the effective assistance of counsel.
Claims of ineffective assistance of counsel are “governed by the familiar two-part
Strickland[v. Washington, 466 U.S. 668 (1984)] standard.” Knight v. Fla. Dep’t of
Corr., 958 F.3d 1035, 1038 (11th Cir. 2020), petition for cert. filed, (U.S. Jan. 7, 2021).
Petitioner must make the familiar two-pronged showing:
“First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to
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deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L.Ed.2d 674 (1984). Because the petitioner
must make the required showing on both prongs of the
Strickland test, a court may conduct its inquiry in any
order and need not address both components of the test if
the petitioner's showing falls short on either one. Id. at 697,
104 S. Ct. 2052. In particular, where it is easier to avoid
assessing counsel's performance and resolve the
petitioner's claim on the ground that he has not made a
sufficient showing of prejudice, courts are encouraged to do
so. Id.
Lee v. GDCP Warden, 987 F.3d 1007, 1018-19 (11th Cir. 2021).

The Eleventh Circuit warns:
because “[t]he standards created by Strickland and §
2254(d) are both ‘highly deferential,’ . . . when the two
apply in tandem, review is ‘doubly’ so. Harrington [v.
Richter, 562 U.S. 86, 105 (2011)] (internal citations
and quotation omitted). Thus, under § 2254(d), “the
question is not whether counsel’s actions were
reasonable. The question is whether there is any
reasonable
argument
that
counsel
satisfied
Strickland’s deferential standard.” Id.
Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020) petition
for cert. filed, (U.S. Feb. 11, 2021).

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).
The ineffective assistance of counsel may require a plea be set aside on the
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ground that it was involuntary because voluntariness implicates not only
threats and inducements but also ignorance and incomprehension. Finch v.
Vaughn, 67 F.3d 909, 914 (1995) (citations omitted).
This Court must be mindful that in a post-conviction challenge to a guilty
plea, the representations of the defendant, his counsel, and the prosecutor at
the plea hearing, plus the findings of the judge, constitute “a formidable
barrier.”

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).

Indeed, a

defendant’s solemn declarations in open court carry a strong presumption of
verity. Thus, later contentions by a defendant contrary to the record may be
deemed wholly incredible in light of the record.
V.

GROUNDS THREE AND FIVE

Petitioner, in his Reply, waives ground three “as it is insufficient to
establish relief under 28 U.S.C. § 2254(d).” Reply at 29. He concedes that
the state court correctly applied the two-pronged Strickland standard to this
claim. Id. With regard to ground five, Petitioner admits he cannot meet the
AEDPA standard as he can neither show the state court’s decision was
contrary to clearly established federal law nor can he demonstrate the state
court decision amounted to an unreasonable application of clearly established

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federal law. Reply at 42-43. As such, the Court will not address grounds
three and five.3
VI.

GROUND ONE

Ground One: Trial counsel rendered ineffective assistance of counsel by
misadvising Petitioner concerning his ability to pursue an insanity defense in
violation of Petitioner’s right to effective assistance of counsel as afforded by
the Sixth and Fourteenth Amendment of the United States Constitution.
Petition at 5.
In his supporting facts, Petitioner explains that his counsel advised
Petitioner that the insanity defense should be abandoned in pursuit of plea
negotiations as the insanity defense was not strong or viable due to conflicting
psychological experts’ opinions on Petitioner’s sanity. Id. He asserts, but for
his counsel’s mis-advice, Petitioner would not have entered a plea of guilty and
would have chosen to exercise his right to a trial by jury. Id. He contends
there existed competent, substantial evidence to support an insanity defense,
including Petitioner’s involuntary commitment contemporaneous to the
instant

offense

which

involved

the

administration

of

anti-psychotic

3 Petitioner asks this Court to conduct some sort of independent review of grounds three and

five and to present the question raised in ground five to the Eleventh Circuit for its
consideration even though Petitioner cannot meet the AEDPA requirements. Reply at 29,
42. As this Court’s review is strictly limited pursuant to AEDPA, the Court declines
Petitioner’s requests. Indeed, there is a clear, emphatic rule which this Court must follow;
if the state court adjudicated a claim on its merits, Petitioner must satisfy his burden under
§ 2254(d)(1). Since Plaintiff either waives the claim or admits he cannot meet his burden
under § 2254, the Court will not address grounds three and five.

9

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medication, and including Petitioner’s bizarre behavior at the time of the
offense, which followed a car accident. Id.
The record demonstrates the following.

Initially, Petitioner was

charged in an information with two counts of murder in the second degree.
(Doc. 24-1 at 31).

Upon motion of defense counsel, the Court ordered

Petitioner to be transported for a neuro-psychological evaluation by Dr. Harry
Krop. Id. at 35-36. An indictment for murder in the first degree and murder
in the second degree followed. Id. at 37-38. Petitioner filed a Notice of Intent
to Rely on Insanity Defense, stating he would rely on the testimony of Dr. Krop
to establish the defense of insanity. Id. at 54.
The state filed a Motion for Psychiatric Examination, and the Court
appointed Dr. William Meadows to examine Petitioner as to his sanity or
insanity at the time of the alleged offense. Id. at 55-56, 59, 61-63. On May
26, 2011, Petitioner signed a “Plea of Guilty and Negotiated Sentence.” Id. at
64-67. In pertinent part, it states that Petitioner is entering his pleas of guilty
to the lesser-included offense of second degree murder as to count one and as
to count two, second degree murder, as charged in the indictment, “for the
reason that I believe it to be in my best interest.” Id. at 64. Not only does it
state that Petitioner has been fully advised of the nature of charges, the range
of punishment, the possible defenses and mitigation, it states that Petitioner
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was advised of the potential affirmative defense of insanity and the defense
was discussed at length with counsel. Id. Importantly, the plea form reads:
“[a]lthough I understand that this defense may be viable in my case, I also
understand the difficulty of proving such a defense under the current state of
the law in the State of Florida and that the State of Florida has filed and is
pursuing First Degree murder charges as to Count One of the Indictment.” Id.
Thereafter, the form states Petitioner is waiving the potential
affirmative defense of insanity. Id. The following assurance is contained in
the plea form: “I feel it is in my best interest and a compromise between these
positions to waive my right to a trial on this issue” and enter the plea as stated.
Id.

Petitioner explains, in making his decision, he did the following:

“carefully reviewed, weighed and considered the current state of Florida law
as it relates to the potential affirmative defense of Insanity,” reviewed the
discovery materials related to the potential insanity defense, and discussed
what would have to be shown to establish the insanity defense before a jury.
Id. In the plea form, Petitioner confirms that he is not under the influence of
any drugs, medication, substance, or condition which would interfere with his
understanding and appreciation of his plea and the consequences of the plea.
Id. at 66.

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The transcript of the plea proceeding is telling. Id. at 342-57. At the
inception of the proceeding, defense counsel, Ian Weldon, announced to the
Court that the parties had reached a proposed disposition. Id. at 344. Mr.
Weldon mentioned that although the defense had previously filed a motion to
rely on the defense of insanity, as the state was seeking a first degree murder
conviction, the defense decided to view the plea agreement “as a compromise
between those positions.” Id. As such, the defense was waiving the right to
have a trial on the issue of insanity and would enter a plea to two counts of
second degree murder.

Id.

Furthermore, the sentencing range would be

forty years to life. Id. Mr. Weldon stated he had reviewed the plea form with
his client and they both agreed with the plea. Id. at 345.
In response, the prosecutor told the court that the experts, Dr. Krop and
Dr. Meadows, disagreed on the matter of sanity at the time of the offense,
providing their opinions. Id. at 346-47. After the state provided a factual
basis for the plea, Mr. Weldon stated there was no objection or exception to the
factual basis for purposes of the plea. Id. at 345-47. The court specifically
inquired as to whether there was “no issue as to competency?” Id. at 347.
Both the state and the defense responded in the negative. Id.
The court inquired as to whether Petitioner wanted to enter the plea as
stated by counsel. Id. at 349. Petitioner confirmed that he did want to enter
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the plea. Id. The court asked if Petitioner had lengthy conversations with
his attorney about the charges and the possible defenses, including insanity.
Id. at 349-50. Petitioner responded in the affirmative. Id. at 350. The court
asked if Petitioner wished to waive the insanity defense, and Petitioner said
yes. Id. Petitioner told the court he had no questions. Id.
The court made an extensive inquiry as to the plea. Id. at 350. The
court referenced the plea form and the fact it discussed “that defense of
insanity.” Id. at 351. Upon inquiry, Petitioner confirmed that his counsel
had carefully gone through the form with Petitioner. Id. Petitioner said he
could read and write, had no questions about the plea form, and his attorney
had answered all of his questions. Id. Petitioner stated his satisfaction with
his counsel’s services. Id. at 351-52.
When asked if Petitioner was pleading guilty because he was guilty,
Petitioner responded, “[n]o ma’am, not that I feel that way.” Id. at 352. Mr.
Weldon explained the plea was a compromise between the position of first
degree murder and the defense of insanity, with the defense obtaining a plea
to second degree murder on the first count. Id. at 353. The court asked, “[i]n
his best interest?”

Id.

Mr. Weldon responded yes.

Id.

The court then

asked if Petitioner felt like the plea and negotiated sentence “are in your best
interest[.]” Id. Petitioner said yes.

Id. The Court found the plea freely
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and voluntarily entered with a full understanding of the consequences of
entering the pleas. Id.
Petitioner exhausted this ground by presenting it in his Second Amended
Motion for Post-Conviction Relief.

(Doc. 24-2 at 46-53).

The trial court

entered an Order Denying Defendant’s Second Amended and Third Amended
Motions for Post-Conviction Relief. Id. at 103-24. Relying on the Strickland
two-pronged standard and the holding in Hill (Doc. 24-2 at 105-107), the trial
court denied post-conviction relief on this claim of ineffective assistance of
counsel. Id. at 110-12. On August 1, 2017, the 1st DCA affirmed per curiam.
(Doc. 24-3 at 163). The mandate issued on October 5, 2017. Id. at 165.
As the trial court properly applied the two-pronged Strickland standard
of review, Petitioner cannot satisfy the “contrary to” test of 28 U.S.C. §
2254(d)(1) as the state court rejected Petitioner’s claim based on Strickland.
The trial court, appropriately applying the Strickland standard of review, also
found Petitioner failed to satisfy the performance prong of Strickland. (Doc.
24-2 at 112).

The trial court concluded Petitioner failed to overcome the

presumption of effective performance accorded to his counsel.
opined:
[T]he evidence established by the record and
evidentiary hearings demonstrate that Defendant was
not misadvised regarding an insanity defense.
14

The court

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Rather, based on the medical opinions of Dr. Meadows
and Dr. Krop, a strategic decision was made to enter
pleas of guilty to a lesser-included crime in Count I,
and as charged in Count II. The evidence shows the
decision was made in order to specifically avoid a jury
trial on the two Counts as charged and where, as
discussed infra in Ground Four, death could have been
a possible sentence.
Id.
In coming to its decision, the court noted that Petitioner could not seek
to go behind his previously sworn testimony given at the plea proceeding. Id.
at 110-11. The court also relied on the testimony presented at the evidentiary
hearing, finding no credible evidence that defense counsel misadvised
Petitioner regarding his ability to pursue an insanity defense. Id. at 111.
The law in this Circuit provides, “[w]hen courts are examining the
performance of an experienced trial counsel, the presumption that his conduct
was reasonable is even stronger.” Hardwick v. Benton, 318 F. App’x 844, 846
n.2 (11th Cir. 2009) (per curiam) (quoting Chandler v. United States, 218 F.3d
1305, 1316 (11th Cir.2000)).

The post-conviction state court evidentiary

hearing demonstrates the following.

Petitioner’s counsel, Ian Weldon,

testified he had previously been employed with the Public Defender’s Office for
a little over a decade and his practice deals with criminal law. (Doc. 24-2 at
190). He attested he was experienced in handling criminal cases with clients

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with mental health issues and was familiar with the protocols, procedures, and
rules dealing with competency evaluations. Id. at 192.
Mr. Weldon testified that Dr. Krop found Petitioner competent and very
intelligent. Id. at 193-95. Mr. Weldon was also aware that Dr. Krop believed
there may be a viable insanity defense. Id. at 195. Mr. Weldon knew Dr.
Meadows found Petitioner competent to proceed and concluded there was no
viable insanity defense.

Id. at 196.

discussions followed these evaluations.

Mr. Weldon told the court plea
Id.

Mr. Weldon said he was

satisfied that Petitioner understood his plea as well as the plea form. Id. at
199-200.
The court pointedly asked Mr. Weldon about the quality of the insanity
defense and the content of Mr. Weldon’s advice to his client. Id. at 209. Mr.
Weldon responded:
Well, we discussed it. It is a difficult defense.
It is up to the jurors as to, you know, whether they are
going to accept that or not.
And, you know, I think we looked at Dr.
Meadows[’] report versus Dr. Kropp’s [sic] and decided
whether we are going to be able to succeed on that.
Ultimately. We are not going to pursue it. We took
negotiations rather than risk guilty to first degree
murder.

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Id. Mr. Weldon explained he believed Dr. Krop had some reservation about
the insanity defense and Dr. Meadows’ report said Petitioner was sane at the
time of the offense, making it a difficult for a jury to reconcile the opposing
positions, leading to plea negotiations. Id. at 210. Of import, Mr. Weldon
testified the prosecutor threatened to file a death penalty notice and the
defense successfully held off the notice by entering into plea negotiations. Id.
at 288-89.
On cross-examination, Mr. Weldon explained that he discussed the risks
of going to trial versus the rewards of going to trial, and the defense decided to
come up with the compromise with the state as to a lesser charge. Id. at 295.
Mr. Weldon attested that he never told Petitioner “he was unable to pursue an
insanity defense[.]” Id. at 296. Mr. Weldon admitted that Petitioner’s desire
to avoid the death penalty played “a big part of the plea negotiations, to hold
off on the death penalty, and a lot of our calculus was based on that as well.”4
Id. at 300.
The trial court, in denying the Rule 3.850 motion, not only relied on the
testimony from the evidentiary hearing, it also relied on Dr. Krop’s testimony

4 Notably, the state may seek the death penalty even if it does not file notice of intent to seek

death within forty-five days of arraignment. Gonzalez v. State, 829 So. 2d 277, 279 (Fla. 2d
DCA 2002) (“failure of the State to give timely notice under the rule [Fla. R. Crim. P. 3.202]
does not preclude the State from seeking the death penalty”).

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from the sentencing proceeding, noting that Dr. Krop testified he did not
finalize his opinion as to sanity or insanity because Petitioner elected to enter
into a negotiated plea.

Id. at 111.

Furthermore, the court relied on the

rather strong testimony from Dr. Meadows opining that “Defendant was not
insane and there was no viable insanity defense.” Id.
The Court finds the state court’s determination is consistent with federal
precedent.

The 1st DCA’s decision, although unexplained, is entitled to

AEDPA deference.

Applying the look through presumption described in

Wilson, the state court’s ruling is based on a reasonable determination of the
facts and a reasonable application of the law.

In short, the state court’s

adjudication of the claim is not contrary to or an unreasonable application of
Strickland and Hill or based on an unreasonable determination of the facts.
Therefore, the state court’s decision is entitled to deference and ground one is
due to be denied.
VII.

GROUND TWO

GROUND TWO: Trial counsel rendered ineffective assistance of counsel by
misadvising Petitioner concerning his ability to move to suppress
incriminating statements in violation of Petitioner’s right to effective
assistance of counsel as afforded by the Sixth and Fourteenth Amendments of
the United States Constitution as well as Petitioner’s Fifth Amendment right
against self incrimination as afforded by the United States Constitution and
as articulated by the Supreme Court in Miranda v. Arizona, 384 U.S. 436
(1966).

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Petition at 6.
In his supporting facts, Petitioner states counsel advised Petitioner to
pursue plea negotiations and a plea agreement rather than moving to suppress
Petitioner’s incriminating statements given to law enforcement during an
interview. Id. at 6. Petitioner complains this advice was given even though
Petitioner was interviewed while he under involuntary commitment pursuant
to the Baker Act as well as having been recently involuntarily administered
two anti-psychotic medications (Haldol and Risperidone).

Id.

Petitioner

asserts his rights may not have been properly waived, “as Petitioner was likely
incapable of understanding his rights due to the influence of the psychotropic
medication as well as his compromised psychological state[.]” Id.
Petitioner exhausted this claim of ineffective assistance of counsel by
presenting it in his Second Amended Motion for Post-Conviction Relief. Id. at
53-57. The court denied post-conviction relief. Id. at 115-17. The 1st DCA
affirmed. (Doc. 24-3 at 163).
The trial court opined Petitioner may not seek to go behind his previously
sworn testimony given during his plea proceeding. Id. at 115-16. The trial
court concluded it was the defense’s strategic decision to refrain from filing a
motion to suppress because the defense wanted to keep the state engaged in
plea negotiations. Id. at 116. This was particularly of concern as the state
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obtained an indictment for murder in the first degree, the prosecutor was
threatening to seek the death penalty, and the state could have sought the
death penalty as to the first count of the indictment. Id. The trial court
noted, defense counsel attested Petitioner agreed that counsel should not file
a motion to suppress under these circumstances. Id. Counsel explained that
part of the reasoning behind not filing a motion to suppress was that, “aside
from Defendant’s confession, there existed a great amount of other evidence
against Defendant and, as such, Defendant’s confession was not dispositive of
the case.”5 Id. at 116.
The trial court held:
This Court finds Defendant has failed to fulfill
his burdens of showing trial counsel either told
Defendant, or wrongly believed, that Defendant’s
mental state and/or use of psychotropic medications
would not be relevant regarding the voluntariness of
Defendant’s statements. Moreover, this Court finds
it is not reasonably likely that, even if counsel had filed
a motion to suppress, the motion would have changed
the outcome of the instant case. Based on the
testimony presented during the evidentiary hearings,
this Court finds counsel made a well-reasoned
strategic decision to refrain from filing a Motion to
Suppress, including seeking to avoid subjecting his
client to the death penalty. As such, this Court finds
5 The police found Petitioner naked in the middle of a community swimming pool, with the

body of a child (eighteen months old) floating in the pool and the body of the child’s mother
at the bottom of the pool. (Doc. 24-1 at 17). Autopsies confirmed both victims died from
drowning. Id. The police photographed scratches, described as claw marks, on Petitioner’s
neck or clavicle. Id. at 165, 182.

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Defendant has failed to fulfill his burdens under
Strickland of showing counsel rendered deficient
performance. As such, Ground Two is denied.
Id. at 116-17.
Upon review, Petitioner cannot satisfy the “contrary to” test of 28 U.S.C.
§ 2254(d)(1) as the state court rejected this claim based on Strickland.
Further, Petitioner has not shown the state court unreasonably applied
Strickland or unreasonably determined the facts. Indeed, the state court was
objectively reasonable in its Strickland inquiry.

Failing to satisfy the

performance prong of Strickland, Petitioner cannot prevail on his claim of
ineffective assistance of counsel as a petitioner must satisfy both prongs of the
two-part standard.

Applying the look-through presumption described in

Wilson, deference is due to the 1st DCA’s decision affirming the decision of the
trial court in denying post-conviction relief. As such, ground two is denied.
VIII.

GROUND FOUR

GROUND FOUR: The trial court’s acceptance of Petitioner’s plea of guilty
without a judicial finding of a factual basis for the charges to which Petitioner
pled amounted to a violation of Petitioner’s right to due process as afforded by
the Fifth and Fourteenth Amendment of the United States Constitution and
was contrary to, or involved an unreasonable application of, clearly established
federal law as articulated by the Supreme Court in Pate v. Robinson, 383 U.S.
375 (1966), North Carolina v. Alford, 400 U.S. 25 (1970), and Bousley v. United
States, 523 U.S. 614 (1998).
Petition at 9.

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In this fourth ground for relief, Petitioner asserts the trial court accepted
the plea without making a judicial finding of a factual basis for the plea. Id.
at 9. In support, Petitioner alleges he maintained his innocence at the plea
proceeding. Id.
The record shows the trial court entered into an extensive plea colloquy
after Petitioner signed a plea agreement stating he was entering his pleas of
guilty believing the pleas to be in his best interest.

During the plea

proceeding, the court asked whether there was a factual basis for the pleas.
Id. at 345. The state responded, providing a detailed factual basis for the
pleas:
Yes, Your Honor, were this case to proceed to
trial the State of Florida would establish beyond and
to the exclusion of all reasonable doubt that on July
8th, 2009, this defendant, Mr. Gomez, did unlawfully
take the human lives of two individuals, Tiffany
Satone and daughter [child victim], [child victim]
being a child under the age of 18 years of age.
Your Honor, the facts in this case if it were to
proceed to trial would be that this defendant on the
date in question did effect the death of both these
individuals by drowning. Both of these victims were
found deceased in a community pool up in the
Arlington section of town. The defendant was located
in the same pool by Jacksonville Sheriff’s officers who
responded on the scene. And the defendant was
taken into custody.

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It was determined throughout dependency of the
investigation that the death was at the hands of this
defendant. He has been charged accordingly.
This is all contrary to provision of section
672.04(2) of the Florida Statutes.
I’d also put on the record that both the defendant
had been interviewed by the Jacksonville Sheriff’s
Office detectives, he provided facts indicating he was
in fact responsible. He was the only person with the
ability to be responsible for the deaths of these two
individuals. Their death was a result of drowning
and Medical Examiner determined that as to both
individuals.
An evaluation of this defendant had been
undertaken by counsel for the defense and also for the
State as to the issue of sanity at the time of the offense.
Dr. Krop for the defense opined he believed the
defendant may have a liable [sic] defense of insanity.
Dr. Meadows examined the defendant for the State of
Florida in a report that’s been received, provided to
defense counsel just as recently as last night, opined
the defendant was in fact sane at the time of the
offense.
Interview was conducted of the defendant.
That was during the course of that evaluation which
was not confidential, the nature of that interview
comports with the facts and circumstances as
determined by the Sheriff’s Office during their
investigation, that this defendant was in fact
responsible and did cause the death of these two
individuals by drowning.
Id. at 345-47.

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Immediately thereafter, defense counsel stated, “for purposes of the
plea[,] we have no objection or exception to the factual basis as stated by the
State[,]” and the court said okay. Id. at 347. The court asked Petitioner if he
wanted to enter his plea and proceed to sentencing. Id. at 349. Petitioner
confirmed he wanted to do that. Id. Petitioner stated he was willing to waive
his right to a jury trial.

Id. at 349-50.

Petitioner had no questions or

reservations about his decision. Id. at 350. Petitioner said he thought the
plea and negotiated sentence were in his best interest. Id. at 353.
Petitioner raised the claim presented in ground four of the Petition in a
state petition for writ of habeas corpus. (Doc. 24-3 at 285-317). The trial
court entered an Order Dismissing Defendant’s Petition for Writ of Habeas
Corpus, construing the petition to be a motion for post-conviction relief
pursuant to Rule 3.850.
petition/motion untimely.

(Doc. 24-4 at 147-51).
Id. at 148.

The court found the

The court also found the

petition/motion second or successive. Id. at 149-50.
Alternatively, the court found Petitioner’s allegations do not constitute
manifest injustice. Id. at 149. In making this finding, the court noted that
stipulating to a factual basis is appropriate as long as there is sufficient record
evidence to support the stipulation, and the record is sufficient if arrest and
police affidavits support the factual basis. Id. As such, the court found an
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adequate factual basis to support the plea provided at the time of the plea and
within the record. Id.
Petitioner appealed the circuit court’s decision. (Doc. 24-5 at 39-40, 4580). On February 12, 2019, the 1st DCA affirmed per curiam. Id. at 85-86.
The mandate issued October 1, 2019.

Id. at 93.

Petitioner sought

discretionary review, id. at 95-97, and the Supreme Court of Florida declined
to accept jurisdiction on February 25, 2020. Id. at 148.
To the extent the claim was addressed on its merits, the Court gives
deference to the 1st DCA’s decision affirming the decision of the trial court.6
The Court finds the state court’s determination is consistent with federal
precedent.

Although unexplained, the 1st DCA’s decision is entitled to

AEDPA deference.

Applying the look-through presumption set forth in

Wilson, the state court’s ruling is based on a reasonable determination of the
facts and a reasonable application of the law.
The 1st DCA’s decision affirming the trial court is not contrary to, nor
an unreasonable application of controlling United States Supreme Court
precedent. As Petitioner has not demonstrated that the adjudication of the
state court was contrary to or an unreasonable application of any clearly

6 Respondents do not assert this ground is unexhausted and procedurally defaulted.

They
contend the claim was exhausted when raised in the state habeas petition. Response at 33.

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established federal law as determined by the United States Supreme court or
an unreasonable determination of the facts, Petitioner is not entitled to habeas
relief on ground four.
Alternatively, this claim is due to be denied. The trial court asked the
state to present a factual basis for the plea, the state provided one, and the
court said okay.

Defense counsel stipulated to the factual basis for the

purposes of the plea. Neither defense counsel nor Petitioner announced any
legal exception or objection. The court accepted the plea, finding it was freely,
knowingly, and voluntarily entered. (Doc. 24-1 at 353). The plea proceeding
and the record evidence demonstrate a factual basis for the plea.

See

Response at 35.
At the plea proceeding, Petitioner expressed his position that he was
pleading guilty because he believed it to be in his best interest. This position
is also contained in the written plea agreement signed by Petitioner.
Petitioner is not entitled to habeas relief on ground four of the Petition.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.

The Second Amended Petition (Doc. 22) is DENIED.

2.

This action is DISMISSED WITH PREJUDICE.

3.

The Clerk shall enter judgment accordingly and close this case.
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4.

If Petitioner appeals the denial of his Second Amended Petition

(Doc. 22), the Court denies a certificate of appealability.7 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.
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
March, 2021.

sa 3/8
c:
Andrew Michael Gomez
Counsel of Record

7

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.

27