Stewart v. Jones et al
Filing
27
ORDER denying the Petition 1 and dismissing case with prejudice; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 3/8/2021. (JND)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ARSENIO DECORD STEWART,
Petitioner,
v.
Case No. 3:18-cv-251-TJC-MCR
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner, Arsenio Decord Stewart, an inmate of the Florida penal
system, initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody. Doc. 1. Petitioner
challenges a state court (Putnam County, Florida) judgment of conviction for
possession of a firearm by a convicted felon, for which he is serving a fifteenyear term of incarceration. Doc. 1 at 1. Respondents filed a Response.1 See Doc.
14. And Petitioner filed a Reply. See Doc. 23. This case is ripe for review.
Attached to the Response are several exhibits. The Court cites the exhibits as
“Resp. Ex.”
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II. Governing Legal Principles
A. Standard Under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal habeas corpus petition. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure
that federal habeas relief functions as a guard against extreme malfunctions in
the state criminal justice systems, and not as a means of error correction.’” Id.
(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See
Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue an opinion explaining its rationale in order for the
state court’s decision to qualify as an adjudication on the merits. See Harrington
v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s adjudication on the
merits is unaccompanied by an explanation,
the 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. But the 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, such as
alternative grounds for affirmance that were briefed or
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argued to the state supreme court or obvious in the
record it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a
federal court cannot grant habeas relief unless the state court’s adjudication of
the 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 “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)(1),
(2). A state court’s factual findings are “presumed to be correct” unless rebutted
“by clear and convincing evidence.” Id. § 2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotation marks omitted). “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.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (internal quotation marks omitted). “It bears
repeating that even a strong case for relief does not
mean the state court’s contrary conclusion was
unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003)). The Supreme Court has
repeatedly instructed lower federal courts that an
unreasonable application of law requires more than
mere error or even clear error. See, e.g., Mitchell v.
Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at
75 (“The gloss of clear error fails to give proper
deference to state courts by conflating error (even clear
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error) with unreasonableness.”); Williams v. Taylor,
529 U.S. 362, 410 (2000) (“[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.”).
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal
citations modified).
B. Exhaustion and Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254
habeas action in federal court, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”
every issue raised in his federal petition to the state’s highest court, either on
direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351
(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners
must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope
v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the
state collateral review process as well as the direct appeal process.”).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28
U.S.C. § 2254(b)(1), thereby giving the State the
“‘“opportunity to pass upon and correct” alleged
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violations of its prisoners’ federal rights.’” Duncan v.
Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d
865 (1995) (per curiam) (quoting Picard v. Connor, 404
U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To
provide the State with the necessary “opportunity,” the
prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default which raises a potential bar to federal habeas
review. The United States Supreme Court has explained the doctrine of
procedural default as follows:
Federal habeas courts reviewing the constitutionality
of a state prisoner’s conviction and sentence are guided
by rules designed to ensure that state-court judgments
are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our
system of federalism. These rules include the doctrine
of procedural default, under which a federal court will
not review the merits of claims, including
constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman,[2] supra, at 747–
748, 111 S. Ct. 2546; Sykes,[3] supra, at 84–85, 97 S. Ct.
2497. A state court’s invocation of a procedural rule to
deny a prisoner’s claims precludes federal review of the
2
Coleman v. Thompson, 501 U.S. 722 (1991).
3
Wainwright v. Sykes, 433 U.S. 72 (1977).
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claims if, among other requisites, the state procedural
rule is a nonfederal ground adequate to support the
judgment and the rule is firmly established and
consistently followed. See, e.g., Walker v. Martin, 562
U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62
(2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612,
617–618, 175 L.Ed.2d 417 (2009). The doctrine barring
procedurally defaulted claims from being heard is not
without exceptions. A prisoner may obtain federal
review of a defaulted claim by showing cause for the
default and prejudice from a violation of federal law.
See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be
excused under certain circumstances. Notwithstanding that a claim has been
procedurally defaulted, a federal court may still consider the claim if a state
habeas petitioner can show either (1) cause for and actual prejudice from the
default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause and
prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly
attributable to his own conduct.” McCoy v. Newsome,
953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,
477 U.S. at 488, 106 S. Ct. 2639).[4] Under the prejudice
prong, [a petitioner] must show that “the errors at trial
actually and substantially disadvantaged his defense
so that he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).
4
Murray v. Carrier, 477 U.S. 478 (1986).
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Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the
petitioner can establish that a fundamental miscarriage of justice, the
continued incarceration of one who is actually innocent, otherwise would result.
The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive
consideration on the merits of his procedurally
defaulted claim. “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal
habeas court may grant the writ even in the absence of
a showing of cause for the procedural default.” Carrier,
477 U.S. at 496, 106 S. Ct. at 2649. “This exception is
exceedingly narrow in scope,” however, and requires
proof of actual innocence, not just legal innocence.
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001).
Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it
is more likely than not that no reasonable juror would have convicted him’ of
the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be
credible,’ a claim of actual innocence must be based on reliable evidence not
presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,
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allegations of actual innocence are ultimately summarily rejected. Schlup, 513
U.S. at 324.
C. Ineffective Assistance of Counsel
“The Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense counsel’s
performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a
person must show that: (1) counsel’s performance was outside the wide range of
reasonable, professional assistance; and (2) counsel’s deficient performance
prejudiced the challenger in that there is a reasonable probability that the
outcome of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 687.
Notably, there is no “iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th
Cir. 2010). Since both prongs of the two-part Strickland test must be satisfied
to show a Sixth Amendment violation, “a court need not address the
performance prong if the petitioner cannot meet the prejudice prong, and viceversa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As
stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on the
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ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.” 466 U.S. at 697.
“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 (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, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high
bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
“Reviewing courts apply a ‘strong presumption’ that counsel’s representation
was ‘within the wide range of reasonable professional assistance.’” Daniel v.
Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting
Strickland, 466 U.S. at 689). “When this presumption is combined with §
2254(d), the result is double deference to the state court ruling on counsel’s
performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t
of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,
concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
III.
Factual Summary and Grounds for Relief
Petitioner raises four grounds for relief, all of which challenge the legality
of his fifteen-year sentence following his plea of no contest. See generally Doc.
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1. For context, the Court summarizes the procedural history underlying
Petitioner’s claims.
The state charged Petitioner with possession of a firearm by a convicted
felon, a second degree felony carrying a three-year minimum mandatory term
of incarceration and a maximum fifteen-year term. Resp. Ex. A at 6. On
September 9, 2013, Petitioner, with help from trial counsel, entered a plea of no
contest to “constructive” possession of a firearm by a convicted felon, which does
not carry a minimum mandatory term. Resp. Ex. B at 5. In exchange for his
plea, the state offered Petitioner a one-year-and-one-day term of incarceration.
Id. at 16; Resp. Ex. A at 19. Before the trial court accepted Petitioner’s plea,
Petitioner requested that the trial court set Petitioner’s sentencing hearing for
a later date. Resp. Ex. B at 17. The trial court granted the request, explaining
the following:
THE COURT: All right. Mr. Stewart, I don’t have any
problem with a sentencing date. It will be about a
month from now. But you have to understand that if
you violate the conditions of your pretrial release while
awaiting your sentencing I’m not going to allow you to
withdraw your plea unless there’s a really good reason,
I will bound [sic] by the year and a day.[5] A second
degree felony’s punishable by a maximum penalty of 15
years in prison or a $10,000 fine; do you understand
that?
Although the transcript is garbled, it is clear from context and later
proceedings that the trial court said that it was not bound by the year-and-aday offer.
5
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...
THE DEFENDANT: Yes, sir.
Id. at 17-18. Petitioner then advised the trial court, under oath, that he was
entering the plea knowingly, voluntarily, and with full understanding of its
consequences. Id. at 18-21. He also stated he was entering the plea because he
believed it was in his best interest. Id. He advised the trial court that he had
enough time to discuss his decision with his trial counsel and that he was
satisfied with his trial counsel’s representation. Id. at 21. Based on Petitioner’s
statements, the trial court accepted the plea and set Petitioner’s sentencing
hearing for a later date. Id. at 22. Petitioner remained out on bond pending his
sentencing hearing. Resp. Ex. D at 34.
Five days later, on September 14, 2013, Petitioner violated the conditions
of his pretrial release and was arrested and charged for a new count of
possession of a firearm by a convicted felon. Id. On December 3, 2013, the trial
court conducted its sentencing hearing, during which the state informed the
trial court of Petitioner’s newly charged felony. Id. The trial court then had the
following exchange with the state, defense counsel, and Petitioner:
THE COURT: All right. He pled to constructive
possession of a firearm, the agreed upon disposition
was 12.1. Either he was already out or he was let out,
that’s inconsequential, but he was told that if he
violated the conditions of pretrial release, and the two
most common ways that occurs are not showing up or
committing a new law violation, that he would not be
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permitted to withdraw his plea unless there were
extraordinary circumstances, and neither I nor the
State would be bound by the recommended disposition.
So is there any legal bar to proceeding with sentencing
at this time?
MR. JANESK: Not from the State, Your Honor.
MR. SMITH: No legal bar, Your Honor.
THE DEFENDANT: Your Honor, excuse me, I had put
in a motion to dismiss counsel because he came to see
me in October and he told me that you were going to
give me more than a year and a day because of me being
arrested and whatnot while I was out on bond. I don’t
know nothing about no pretrial release, but I come to
find out being released on bond that’s considered
pretrial release. And I don’t remember being told
nothing else because you told me that you was
accepting my plea and you wouldn’t let me or the State
withdraw the plea, all the other stuff I don’t know
nothing about that. And he said-THE COURT: Well, then you weren’t listening.
THE DEFENDANT: -- I asked him to withdraw my
plea because I told him I didn’t go to trial, I didn’t lose
no trial, I didn’t go to trial, I took a plea that the State
offered. They offered . . . year and a day, I took a year
and a day, so he come and tell me that I was going to
get more than a year and a day, I told him I wanted to
withdraw my plea. And when we came to court last
month, I told him again I needed to talk to him in court,
which he ignored me, he haven’t been to see me since
last month, to try to put in a motion with him to
withdraw my plea before sentencing. And according to
criminal procedure rule 3.17(f) I am entitled to
withdraw my plea, and that’s what I would like.
THE COURT: You’re entitled to ask to withdraw your
plea. So let me ask you this question: Are you asking to
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withdraw your plea because you’ve been told by your
attorney, and I’m telling you now that you may be
punished or sentenced to more than 12.1 Department
of Corrections; is that why you want to withdraw your
plea?
THE DEFENDANT: That’s not what I . . . agreed to. I
would like what I agreed to. If not then I feel like-THE COURT: So you think that notwithstanding the
fact that I told you, and I’m not telling you I think I told
you, I’m telling you I know I told you, and I know that
you told me you acknowledged what I was telling you
that if you violated the conditions of pretrial release
while awaiting sentencing that I would not be bound by
the negotiated disposition. And it’s alleged and a
probable cause determination has been made that
while you were out on pretrial release you possessed a
firearm again. And it’s your understanding that no
matter what you did while awaiting sentencing you
were still going to get the deal?
THE DEFENDANT: Well, I’m not saying that you
didn’t inform me of that, but I don’t remember, but I’m
not saying that you didn’t tell me that.
THE COURT: Why don’t you talk to your attorney. He
can explain everything to you. I want you to articulate
for me what the basis is on why you think that you want
to withdraw your plea today, and then I’ll make a
decision based on that. So talk to him in the jury box.
We’ll recall it. Go on ahead.
Id. at 34-37. Petitioner and trial counsel then privately conversed and
afterward, trial counsel advised the trial court that Petitioner wished to
withdraw his plea:
MR. SMITH: Your Honor, as what Mr. Stewart said
earlier, when I spoke to him previously, I explained to
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him the fact that the Court -- that it was within the
Court’s power to sentence him to any legal sentence,
that they would not be bound by the 12.1. Last month
when we came in since . . . Your Honor was not present,
the case was continued so that you could address -- the
State felt that you would want to address this case
since you had originally taken the plea. Mr. Stewart is
wanting to withdraw his plea because he feels that if
he’s not going to receive the 12.1 that that is not what
he negotiated.
THE COURT: Okay. So the motion before the Court ore
tenus is to withdraw his plea based on his belief that -or your explanation to him that because he committed
a new law violation per the probable cause finding of
the first appearance judge, notwithstanding that he
believes he’s still entitled to 12.1, correct?
MR. SMITH: Yes, Your Honor.
THE COURT: And that’s the basis for the motion to
withdraw?
MR. SMITH: Yes, Your Honor.
THE COURT: All right. State’s position on that?
MR. JANESK: Your Honor, that’s not a legal basis. He
knowingly entered the plea. I’m sure he was advised
that he couldn’t commit new law violations, and he
should still be kept to the plea and we should not be
held to the 12.1 anymore.
THE COURT: All right [sic]. Motion denied.
Id. at 37-38.
The state then presented testimony from Officer Scott Surrency, the
officer who arrested Petitioner for the newly charged offense. Id. at 40-44.
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Surrency explained that on September 14, 2013, he and another officer were
driving in an unmarked undercover patrol vehicle when they saw Petitioner
and another individual standing near the street outside a parked car. Id. at 41.
He testified that he witnessed the second individual hand Petitioner a “lit
object” later identified as a marijuana “cigar” or cigarette. Id. Surrency then
pulled up next to Petitioner and when Petitioner recognized they were dressed
in law enforcement attire, Petitioner concealed the marijuana in his hand and
began walking away. Id. at 42. Surrency got out of the vehicle and announced
his identity, but Petitioner continued to walk away and Surrency grabbed
Petitioner to stop him. Id. Surrency conducted a pat down of Petitioner and
found a fully loaded handgun tucked into Petitioner’s waistband. Id. at 42-43.
Petitioner initially refused to tell Surrency his name, but Surrency testified, “I
recognized [Petitioner] from about three days prior to that I happened to be in
this courtroom -- for another matter and saw him in here, recognized him, and
recognized the fact that he was on -- it had something to do with a firearm . . .
.” Id. at 42.
Following Surrency’s testimony, the state requested that the trial court
sentence Petitioner to the maximum fifteen-year term. Id. at 48-49. Defense
counsel requested that the trial court sentence Petitioner to the state’s initial
offer of twelve months and one day. Id. at 49. The trial court sentenced
Petitioner to the maximum fifteen-year sentence. Id. at 51. Petitioner then filed
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four pro se motions challenging his fifteen-year sentence and the trial court’s
departure from the state’s original offer, including a motion to withdraw his
plea. See Resp. Ex. A at 45, 46, 66, 71. The trial court denied Petitioner’s pro se
motions, see id. at 51, 55, 68, 72, and appointed counsel to represent Petitioner
during his direct appeal, see id. at 88. Appellate counsel, on behalf of Petitioner,
filed an initial brief under Anders v. California, 386 U.S. 738 (1967). Resp. Ex.
F. And Petitioner filed a pro se initial brief. Resp. Ex. G. The Fifth District Court
of Appeal per curiam affirmed Petitioner’s judgment and sentence without a
written opinion. Resp. Ex. H.
Ground One
Petitioner argues that the trial court “did not provide Petitioner the
opportunity to withdraw the plea prior to imposition of the fifteen year sentence
now at issue.” Doc. 1 at 5. Petitioner raised a similar claim in his pro se brief
filed on direct appeal, arguing he had a right to withdraw his plea prior to
sentencing under Florida Rule of Criminal Procedure 3.170(f). Resp. Ex. G at 5.
The state declined to file a response. See Stewart v. State, No. 5D14-2633 (Fla.
5th DCA). The Fifth DCA rejected the argument and affirmed Petitioner’s
judgment and sentence. Resp. Ex. H.
Rule 3.170(f) provides that “[t]he court may in its discretion, and shall on
good cause, at any time before a sentence, permit a plea of guilty or no contest
to be withdrawn . . . .” Fla. R. Crim. P. 3.170(f). In this claim, Petitioner is asking
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the Court to enforce his state created ability to withdraw his plea under that
Rule. But the writ of habeas corpus under 28 U.S.C. § 2254 “was not enacted to
enforce State-created rights.” Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th
Cir. 2000) (citing Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)). The
purpose of a federal habeas proceeding is review of the lawfulness of Petitioner’s
custody to determine whether that custody violates the Constitution or laws or
treaties of the United States. See Coleman v. Thompson, 501 U.S. 722 (1991).
Only in cases of federal constitutional error will a federal writ of habeas corpus
be available. See Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir. 1993); Krasnow
v. Navarro, 909 F.2d 451, 452 (11th Cir. 1990). It is not the province of this
Court to reexamine the state-court’s determination on an issue of state law. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “This limitation on federal habeas
review is of equal force when a petition, which actually involves state law issues,
is ‘couched in terms of equal protection and due process.’” Branan, 861 F.2d at
1508 (quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir. 1976)).
In affirming Petitioner’s judgment and conviction, the Fifth DCA found
that the trial court did not abuse its discretion under Rule 3.170(f) when it
denied Petitioner’s presentence request to withdraw his plea. The Court must
adhere to the Florida court’s interpretation of its own laws unless that
interpretation breaches a federal constitutional mandate. McCoy v. Newsome,
953 F.2d 1252, 1264 (11th Cir. 1992). Here, there has been no breach of a federal
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constitutional mandate. Petitioner has presented a state law claim, not a claim
of federal constitutional dimension. Thus, it is not cognizable in this proceeding
and is due to be denied.
Ground Two
Petitioner argues that his trial counsel was ineffective for failing to object
to the state’s recommendation that Petitioner receive a sentence greater than
the agreed upon one-year-and-one-day term or the trial court’s imposition of a
greater sentence. Doc. 1 at 7. Respondents argue that this claim is unexhausted
and procedurally defaulted because Petitioner never presented it to the state
courts. Resp. at 10-11. In his Petition, Petitioner asserts that he raised this
claim on direct appeal and in a Florida Rule of Criminal Procedure 3.850 motion
for postconviction relief, which the trial court denied on November 10, 2015.
Doc. 1 at 7-8.
Petitioner did not raise an ineffective assistance of counsel claim in the
Rule 3.850 motion that he references in this Ground. See Resp. Exs. Q, R.
However, in his pro se brief filed on direct appeal, Petitioner raised a claim
about the alleged cumulative effect of his trial counsel’s errors. See Resp. Ex. 912. As mentioned above, the Fifth DCA rejected Petitioner’s argument on direct
appeal and affirmed his judgment and sentence. Resp. Ex. H.
If the state appellate court did adjudicate this claim on the merits, the
state court’s decision is entitled to deference. After applying that deference, the
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Court finds that the state court’s adjudication of this claim was not contrary to
clearly established federal law and did not involve an unreasonable application
of clearly established federal law. Nor was the state court’s adjudication based
on an unreasonable determination of the facts given the evidence presented in
the state court proceedings.
Further, even absent deference to the Fifth DCA’s adjudication,
Petitioner’s claim is meritless. The record shows that Petitioner knowingly and
voluntarily entered his no contest plea, and he was advised that if he violated
the conditions of his pretrial release before sentencing, the trial court would not
allow Petitioner to withdraw his plea. Resp. Ex. B at 17. Further, despite
Petitioner’s presentence arrest for a new law violation, trial counsel still
requested that the trial court sentence Petitioner to the state’s original offer of
one year and one day. However, the trial court rejected trial counsel’s request
and imposed a lawful fifteen-year sentence. Petitioner has failed to prove
deficient performance under Strickland and this claim is denied.
Ground Three
Petitioner asserts that the state “breached the plea agreement” when at
sentencing, it recommended that Petitioner receive a sentence greater than the
agreed upon term. Id. at 8. He contends that he never agreed to or knew that
the state could depart from that negotiated disposition. Id.
Petitioner raised this claim in his pro se brief on direct appeal. Resp. Ex.
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G at 6. The state declined to file an answer brief, and the Fifth DCA denied the
claim and affirmed Petitioner’s judgment and sentence. Resp. Ex. H.
Respondents argue that this claim is not cognizable because, like Ground One,
it is an issue of state law. Resp. at 9-10. However, in his pro se brief on direct
appeal, Petitioner argued that the state’s disregard of the negotiated plea
agreement violated his federal due process rights. Resp. Ex. G at 8. Thus, if
Petitioner presented the federal constitutional nature of this claim to the state
appellate court, the Fifth DCA’s adjudication is entitled to deference.
When Petitioner entered his plea, he acknowledged that he would be
subject to the fifteen-year maximum sentence if, before sentencing, he violated
the terms of his conditional release. Resp. Ex. B at 17-18. Thus, when Petitioner
was arrested for a new possession of a firearm by a convicted felon charge days
after his plea, he knew that the state could request the imposition of a sentence
exceeding its one-year-and-one-day offer. As such, the Court finds that the state
court’s adjudication of this claim was not contrary to clearly established federal
law and did not involve an unreasonable application of clearly established
federal law. Nor was the state court’s adjudication based on an unreasonable
determination of the facts given the evidence presented in the state court
proceedings. Ground Three is denied.
Ground Four
Petitioner asserts that he is “being held against his will” because he pled
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to a 12.1-month term of incarceration and “is being [] detained longer tha[n] he
agreed to be . . . .” Doc. 1 at 10. Respondents argue that this claim is an issue of
state law and not cognizable on federal habeas review. Resp. at 9-10. This Court
agrees. Further, if this claim can be liberally construed as a federal claim, it
lacks merit for the same reasons described in the previous Grounds. Ground
Four is denied.
Accordingly, it is
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED and this case is DISMISSED
WITH PREJUDICE.
2.
The Clerk of Court shall enter judgment accordingly, terminate
any pending motions, and close this case.
3.
If Petitioner appeals this Order, the Court denies a certificate of
appealability. Because the Court has determined that a certificate of
appealability is not warranted, the Clerk shall terminate from the pending
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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.6
DONE AND ORDERED at Jacksonville, Florida, this 8th day of March,
2021.
Jax-7
C:
Arsenio Stewart, #V31003
Allison Leigh Morris, Esq.
The Court should issue a certificate of appealability only if the Petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make this substantial showing, 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)). Here, after consideration of the record as a whole,
the Court will deny a certificate of appealability.
6
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