Broughton v. Secretary, Department of Corrections et al

Filing 13

OPINION AND ORDER dismissing Florida Attorney General as a named respondent; denying Claims One and Two and dismissing Claims Three and Four of 1 Petition for writ of habeas corpus and the case is dismissed with prejudice. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall terminate any pending motions, enter judgment accordingly, and close the case. Signed by Judge John E. Steele on 4/15/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CRAIG E. BROUGHTON,
Petitioner,
v.

Case No: 5:13-cv-189-Oc-29PRL

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS and FLORIDA
ATTORNEY GENERAL,
Respondents. 1
OPINION AND ORDER
This matter comes before the Court upon a petition for habeas
corpus relief filed pursuant to 28 U.S.C. § 2254 by Craig E.
Broughton (“Petitioner”) who is presently confined at the Florida
State Prison in Raiford, Florida (Doc. 1, filed Apr. 19, 2013).
Petitioner, proceeding pro se, attacks the convictions and sentences
entered by the Fifth Judicial Circuit Court in Marion County, Florida
for conspiracy to commit robbery with a firearm, robbery with a
firearm, principal to robbery, possession of a firearm by a convicted
felon, carrying a concealed firearm, and dealing in stolen property

1

When the petitioner is incarcerated and challenges his present
physical confinement “the proper respondent is the warden of the
facility where the prisoner is being held, not the Attorney General
or some other remote supervisory official.” Rumsfeld v. Padilla,
542 U.S. 426, 436 (2004)(citations omitted). In Florida, the proper
respondent in this action is the Secretary of the Florida Department
of Corrections.
Therefore, the Florida Attorney General will be
dismissed from this action.

Id.

Respondent

filed

a

response

to

the

petition

(Doc.

11).

Petitioner filed no reply.
The petition raises four claims: (1) defense counsel failed to
advise Petitioner of a viable defense prior to his guilty plea; (2)
defense counsel failed to advise Petitioner that he had the right to
counsel if he proceeded to trial; (3) defense counsel erroneously
advised

Petitioner

that

the

jury

would

hear

about

his

prior

convictions for robbery if he testified at trial; and (4) defense
counsel failed to advise Petitioner that he could have been found
guilty of a lesser included offense if he proceeded to trial (Doc.
1 at 4-9).
Upon due consideration of the pleadings and the state court
record,

the

Court

concludes

that

the

petition

must

be

denied.

Because the Court may resolve the Petition on the basis of the
record, an evidentiary hearing is not warranted.

See Schriro v.

Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the
factual allegations in the petition or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary
hearing).
I.

Background and Procedural History
On August 18, 2010, Petitioner pleaded guilty to four counts of

robbery with a firearm, one count of principal to robbery with a
firearm, one count of conspiracy to commit robbery with a firearm,
two counts of possession of a firearm by a convicted felon, two

- 2 -

counts of carrying a concealed firearm, and one count of dealing in
stolen property (App. A at 30-34, 38-43). 2

Pursuant to a plea

agreement, Petitioner was sentenced to: concurrent forty year prison
sentences on each of the life felony charges; concurrent fifteen
year prison sentences on the second degree felony charges; and
concurrent five year sentences on the third degree felony charges.
Id.

at

38-43.

Petitioner

also

received

a

three-year

minimum

mandatory sentence on the possession of a firearm by a convicted
felon charge. Id.
forty

year

prison

sentence. Id.

The net result of Petitioner's sentences was a
sentence

with

a

ten-year

mandatory

minimum

Petitioner's convictions and sentences were per

curiam affirmed by Florida’s Fifth District Court of Appeal (App. C
at 16).
On January 10, 2012, Petitioner filed a motion pursuant to Rule
3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850 motion”
(App. D at 1).

After an evidentiary hearing (App. D at 37-76), the

Rule 3.850 motion was denied by the post-conviction court. Id. at
92-105.

Petitioner appealed the denial, but argued only that the

post-conviction

court

erred

by

failing

to

appoint

counsel

to

represent him at the evidentiary hearing and by denying grounds one
and two of his Rule 3.850 motion (App. E at 1).

2

Florida’s Fifth

Unless otherwise indicated, references to appendices and
exhibits are to those filed by Respondent on November 21, 2013 (Doc.
13).
- 3 -

District Court of Appeal per curiam affirmed. Id. at 37; Broughton
v. State, 109 So. 3d 1170 (Fla. 5th DCA 2013).
Petitioner filed the instant habeas petition in this Court on
April 19, 2013 (Doc. 1).
II.

Governing Legal Principles
A.

Standard of Review Under the Antiterrorism Effective
Death Penalty Act (“AEDPA”)

Pursuant to the AEDPA, federal habeas relief may not be granted
with respect to a claim adjudicated on the merits in state court
unless the adjudication of the claim:
(1)

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

(2)

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).
to meet.

This standard is both mandatory and difficult

White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

A state

court’s summary rejection of a claim, even without explanation,
qualifies as an adjudication on the merits which warrants deference.
Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).

Notably,

a state court’s violation of state law is not sufficient to show
that a petitioner is in custody in violation of the “Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a); Wilson
v. Corcoran, 562 U.S. 1, 16 (2010).

- 4 -

“Clearly established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the decisions
of the United States Supreme Court at the time the state court issued
its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S.
70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
That said, the Supreme Court has also explained that “the lack of a
Supreme Court decision on nearly identical facts does not by itself
mean that there is no clearly established federal law, since ‘a
general standard’ from [the Supreme Court’s] cases can supply such
law.” Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

State courts

“must reasonably apply the rules ‘squarely established’ by [the
Supreme] Court’s holdings to the facts of each case. White, 134 S.
Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122
(2009)).
Even if there is clearly established federal law on point,
habeas relief is only appropriate if the state court decision was
“contrary to, or an unreasonable application of,” that federal law.
29

U.S.C.

§

2254(d)(1).

A

decision

is

“contrary

to”

clearly

established federal law if the state court either: (1) applied a
rule that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme Court
when faced with materially indistinguishable facts. Ward v. Hall,

- 5 -

592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S.
12, 16 (2003).
A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle, but applies it to the facts
of the petitioner’s case in an objectively unreasonable manner, Brown
v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d
526, 531 (11th Cir. 2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.” Bottoson,
234 F.3d at 531 (quoting Williams, 529 U.S. at 406).
must

show

that

justification

the

that

state
there

court's
was

an

ruling
error

was
well

The petitioner
“so

lacking

understood

in
and

comprehended in existing law beyond any possibility for fairminded
disagreement.” White, 134 S. Ct. at 1702 (quoting Harrington v.
Richter, 562 U.S. 86 (2011)).

Moreover, “it is not an unreasonable

application of clearly established Federal law for a state court to
decline to apply a specific legal rule that has not been squarely
established by [the Supreme] Court.” Knowles, 556 U.S. at 122.
Finally, when reviewing a claim under § 2254(d), a federal court
must bear in mind that any “determination of a factual issue made by
a State court shall be presumed to be correct[,]” and the petitioner
bears “the burden of rebutting the presumption of correctness by

- 6 -

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller–El v.
Cockrell, 537 U.S. 322, 340 (2003) (“a decision adjudicated on the
merits in a state court and based on a factual determination will
not be overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court proceeding”)
(dictum);
B.

Burt v. Titlow, 134 S. Ct. 10, 15-16 (2013) (same).
Standard for Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a
two-part test for determining whether a convicted person is entitled
to

relief

assistance.

on

the

466

ground

U.S.

that

668,

his

counsel

687-88

(1984).

rendered
A

ineffective

petitioner

must

establish that counsel’s performance was deficient and fell below an
objective

standard

performance

of

prejudiced

reasonableness
the

defense.

and
Id.

that

the

This

is

deficient
a

“doubly

deferential” standard of review that gives both the state court and
the petitioner’s attorney the benefit of the doubt.

Burt, 134 S.

Ct. at 13 (citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403
(2011)).
The focus of inquiry under Strickland's performance prong is
“reasonableness under prevailing professional norms.” Strickland,
466 U.S. at 688-89.

In reviewing counsel's performance, a court

must adhere to a strong presumption that “counsel’s conduct falls
within the wide range of reasonable professional assistance.”
at 689.

Id.

Indeed, the petitioner bears the heavy burden to “prove,

- 7 -

by a preponderance of the evidence, that counsel’s performance was
unreasonable[.]” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir.
2006).

A court must “judge the reasonableness of counsel’s conduct

on the facts of the particular case, viewed as of the time of
counsel’s

conduct,”

applying

a

“highly

deferential”

level

of

judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(quoting Strickland, 466 U.S. at 690).
As

to

the

prejudice

prong

of

the

Strickland

standard,

Petitioner’s burden to demonstrate prejudice is high. Wellington v.
Moore, 314 F.3d 1256, 1260 (11th Cir. 2002).

Prejudice “requires

showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687.

That is, “[t]he defendant must show

that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. At 694.

A reasonable probability is “a probability

sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694.
To show prejudice when a petitioner entered a guilty plea, the
petitioner must show that “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).

This requirement serves “the fundamental interest in the

finality of guilty pleas[.]” Id. at 58.

- 8 -

The inquiry as to whether

a reasonable probability exists that a defendant would have insisted
on going to trial “should be made objectively, without regard for
the ‘idiosyncrasies of the particular decision maker.’” Id. at 60
(quoting Evans v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984)).
C.

Exhaustion and Procedural Default

The

AEDPA

precludes

federal

courts,

absent

exceptional

circumstances, from granting habeas relief unless a petitioner has
exhausted

all

means

of

available

relief

under

state

law.

Specifically, the AEDPA provides, in pertinent part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that–
(A)

the applicant has exhausted the remedies
available in the courts of the State; or

(B)
(i)

there is an absence of available State
corrective process; or

(ii)

circumstances
exist
that
render
such
process
ineffective to protect the
rights of the applicant.

28 U.S.C. § 2254(b)(1) (2012).
Exhaustion of state remedies requires that the state prisoner
“fairly presen[t] federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights[.]” Duncan v. Henry, 513
U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270, 275-76
(1971)).

The petitioner must apprise the state court of the federal

- 9 -

constitutional issue, not just the underlying facts of the claim or
a similar state law claim.
(11th Cir. 1998).

Snowden v. Singletary, 135 F.3d 732

In addition, a federal habeas court is precluded

from considering claims that are not exhausted and would clearly be
barred if returned to state court. Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991) (if a petitioner has failed to exhaust state
remedies and the state court to which the petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred, there is
a procedural default for federal habeas purposes regardless of the
decision of the last state court to which the petitioner actually
presented his claims).

Finally, a federal court must dismiss those

claims or portions of claims that have been denied on adequate and
independent procedural grounds under state law. Coleman, 501 U.S. at
750.

If a petitioner attempts to raise a claim in a manner not

permitted by state procedural rules, he is barred from pursuing the
same claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549
(11th Cir. 1994).
A petitioner can avoid the application of procedural default by
establishing objective cause for failing to properly raise the claim
in state court and actual prejudice from the alleged constitutional
violation. Spencer v. Sec' y, Dep't of Corr., 609 F.3d 1170, 1179–
80 (11th Cir. 2010). To show cause, a petitioner “must demonstrate
that some objective factor external to the defense impeded the effort

- 10 -

to raise the claim properly in state court.” Wright v. Hopper, 169
F.3d 695, 703 (11th Cir. 1999); Murray v. Carrier, 477 U.S. 478
(1986).

To show prejudice, a petitioner must demonstrate there is

a reasonable probability the outcome of the proceeding would have
been different. Crawford v. Head, 311 F.3d 1288, 1327–28 (11th Cir.
2002).
A second exception, known as the fundamental miscarriage of
justice,

only

occurs

in

an

extraordinary

case,

where

a

“constitutional violation has probably resulted in the conviction of
one who is actually innocent[.]”

Murray v. Carrier, 477 U.S. 478,

479-80 (1986).

Actual innocence means factual innocence, not legal

insufficiency.

Bousley v. United States, 523 U.S. 614, 623 (1998).

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. Schlup v. Delo, 513 U.S. 298, 327 (1995).

In

addition, “[t]o be credible, a claim of actual innocence must be
based on [new] reliable evidence not presented at trial.” Calderon
v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at
324).
III. Analysis
A.

Claim One

Petitioner asserts that his defense counsel, Jerry Burford
(“Burford”), was ineffective for failing to advise him of a viable
defense (Doc. 1 at 4-5).

When Petitioner raised this issue in his

- 11 -

Rule 3.850 motion, he asserted that he told the police that he
committed the robberies because his god-daughter had been kidnaped
and he needed $80,000 to pay her ransom (App. D at 7). Petitioner
claimed that a defense of “duress/coercion existed, in light of the
facts” and that Burford was ineffective for failing to apprise him
of this defense. Id.
The post-conviction court denied Claim One as follows:
At the evidentiary hearing the defendant
testified that he did not provide Mr. Burford
with any verification of the kidnaping or his
having paid a ransom for her because that would
have required him to put the family back in
jeopardy, and he did not even want the police
involved.
It was not reported to the police.
The defendant offered no testimony or evidence
at the hearing to support his claim.
Mr. Burford testified at the evidentiary hearing
that the defendant never offered him anything
that could be a defense and the first time he
(Mr. Burford) became aware of the kidnaping was
when he read the defendant's post-conviction
motion.
Mr. Burford also testified that the
information provided by the defendant at the
evidentiary hearing would still be inadequate to
constitute a defense of necessity or coercion
because these are affirmative defenses requiring
the defendant to come forward with evidence to
support the defense, and the defendant has none.
The defendant would not, and indicated he could
not, disclose the identity of the persons
responsible for the kidnaping.
The defendant
never gave Mr. Burford the information about who
the subjects were who kidnaped his god-daughter,
and would not provide it to the court when asked.
At the change of plea and sentencing,
defendant
testified
under
oath
that
understood what he was doing, that he
reviewed the written plea agreement with
Burford and he understood it, and that he

- 12 -

the
he
had
Mr.
had

reviewed the discovery materials with Mr.
Burford.
The defendant also indicated, under
oath, that he was pleading guilty to the charges
because he was guilty.
The defendant then
indicated that Mr. Burford had done everything
he wanted Mr. Burford to do, and that Mr. Burford
had talked to everyone he wanted Mr. Burford to
talk to.
When asked if he had talked with Mr. Burford
about any defense he might have the defendant
stated that he had not. Mr. Burford then stated
that the defendant had made admissions to the
police in all of these cases “so primarily he
does not have a defense.” As noted above, when
Mr. Burford made this representation he had not
been informed of any kidnaping or necessity
defense by the defendant, and had no knowledge
of it until he read the defendant's postconviction motion.
The
written
plea
agreement
contains
an
acknowledgment by the defendant . . . that the
defendant has discussed with his attorney the
facts of the cases and the defenses “that might
be available.”
(App. D at 97-98) (internal citations to the record omitted).

The

post-conviction court concluded that Petitioner had failed to show
that his guilty plea was involuntary and further determined that
Petitioner

had

not

satisfied

either

ineffectiveness test. Id. at 103-04.

prong

of

the

Strickland

Florida’s Fifth District Court

of Appeal per curiam affirmed (App. E at 37).

A review of the record

supports the state courts’ rejection of this claim.
At the Rule 3.850 evidentiary hearing, Petitioner testified
that he told Burford his god-daughter had been kidnaped and that he
(Petitioner) had paid a ransom for her return (App. D at 41).
Petitioner said that Burford told him “that none of it mattered”

- 13 -

because Petitioner had confessed to the robberies. Id. at 41.
contrast

to

Petitioner's

testimony,

Burford

testified

In
that

Petitioner never told him he committed the robberies in order to pay
a ransom and that the first time he had heard of the alleged kidnaping
was when he read it in Petitioner's Rule 3.850 motion (App. D at 54,
55, 67).
Burford stated that prior to Petitioner’s plea, he reviewed all
police reports and the evidence against Petitioner and “saw nothing
that would constitute a viable defense.” Id. at 58.

Burford also

stated that his advice that Petitioner plead guilty would not have
changed even had Petitioner told him about the alleged kidnaping
because coercion is “an affirmative defense as opposed to just
presenting

evidence.

That

means

that

the

burden

of

proof

is

transferred from the State to the defense, and that any defense of
coercion would have to be proven by the defense beyond a reasonable
doubt.

As I understand it and as [Petitioner] has said in court

today, he has no witnesses to support that defense other than
himself.”

Id.

at

59.

When

the

post-conviction

court

asked

Petitioner to provide information regarding the alleged kidnaping,
Petitioner refused to do so. Id. at 72.
In rejecting this claim, the post-conviction court specifically
found that Petitioner had not informed Burford of any kidnaping or
ransom.
defense

By so doing, the post-conviction court concluded that
counsel

was

a

more

credible

- 14 -

witness

than

Petitioner.

Questions of the credibility and demeanor of a witness are questions
of fact.
The

Freund v. Butterworth, 165 F.3d 839, 862 (11th Cir. 1999).

AEDPA

affords

a

presumption

of

correctness

to

a

factual

determination made by a state court, and the habeas petitioner has
the burden of overcoming the presumption of correctness by clear and
convincing evidence.

28 U.S.C. § 2254(e).

Moreover, determining

the credibility of a witness, “is the province and function of the
state

courts,

not

a

federal

court

engaging

in

habeas

review.”

Consalvo v. Sec'y, Dep’t of Corr., 664 F.3d 842, 845 (11th Cir.
2011); see also Gore v. Sec'y, Dep’t of Corr., 492 F.3d 1273, 1300
(11th Cir. 2007) (recognizing that while a reviewing court also gives
a certain amount of deference to credibility determinations, that
deference is heightened on habeas review) (citing Rice v. Collins,
546 U.S. 333, 341–42 (2006) (“[r]easonable minds reviewing the record
might disagree about the [witness'] credibility, but on habeas review
that does not suffice to supersede the trial court's credibility
determination”)).
redetermine

Federal

credibility

of

habeas

courts

witnesses

have

whose

“no

license

demeanor

observed by the state trial court, but not by them.”

has

to

been

Marshall v.

Lonberger, 459 U.S. 422, 434 (1983).
Petitioner has not shown by clear and convincing evidence that
the post-conviction court unreasonably concluded that Burford was
not informed of Petitioner's alleged reason for committing the
robberies.

Burford could not be expected to advise Petitioner of a

- 15 -

defense which Petitioner had prevented him from learning.

Moreover,

given Petitioner's confession to police and his reluctance to provide
details

about

the

alleged

kidnaping,

Burford’s

conclusion

that

Petitioner had no viable defense if he proceeded to trial fell well
within “the wide range of professionally competent assistance.” Id.
at 690.
Petitioner has not satisfied the first prong of Strickland, and
he is not entitled to federal habeas relief on Claim One. 28 U.S.C.
§ 2254(d); Strickland, 466 U.S. at 697 (Because the petitioner bears
the burden of satisfying both prongs of the test, the Court need not
“address both components of the inquiry if the [petitioner] makes an
insufficient showing on one.”).
B.

Claim Two

Petitioner

asserts

that

trial

counsel

was

ineffective

for

failing to ensure that he (Petitioner) was informed that he would be
represented by an attorney if he proceeded to trial (App. D at 4347).

Petitioner raised Claim Two in his Rule 3.850 motion, and the

post-conviction court rejected Petitioner's argument on the ground
that Petitioner was essentially attempting to raise a claim of
fundamental error which should have been raised on direct appeal.
Id. at

99.

The

post-conviction

court

further

determined

that

Petitioner's assertion that he did not understand that he would be
represented by counsel at trial was belied by his third Rule 3.850
claim in which he asserted that Burford had misadvised him about the

- 16 -

State’s ability to question him about his prior convictions if he
testified at trial. Id. at 100.
Respondent

urges

that

this

claim

is

unexhausted

because,

although Petitioner appealed the post-conviction court’s denial of
his Rule 3.850 motion, he did not raise the instant claim in his
brief on appeal (Doc. 11 at 7-8).

However, liberally construing

Petitioner’s appellate brief, it appears that he did attempt to raise
this issue (App. E at 6).

However, even if Claim Two is exhausted,

Petitioner is not entitled to habeas relief.
At the Rule 3.850 evidentiary hearing, Petitioner argued that
Rule 3.172 of the Florida Rules of Criminal Procedure requires that
a defendant be advised at his change of plea hearing that he has the
right to the assistance of counsel at trial (App. D at 45-46).

When

asked by the post-conviction court whether he believed that his plea
was involuntary because he “didn’t understand that [he was] going to
have a lawyer with [him] during trial,” Petitioner replied that he
didn’t know whether he would have the same lawyer or if he would
have to pay for a lawyer if he proceeded to trial. Id. at 46.
Burford

conceded

at

the

hearing

that

he

probably

didn’t

specifically advise Petitioner that he would remain his attorney if
he chose to go to trial because “it’s axiomatic.

If I’m your

attorney and you want to go to trial, I’m still your attorney.” (App.
D at 62).

Burford testified that nothing in his discussions with

- 17 -

Petitioner would have led Petitioner to believe that he would no
longer be represented if he proceeded to trial:
I heard his explanation today, and it makes no
sense at all.
I was a Public Defender,
appointed by the Court to represent him. There
is a fee that must be paid when they apply for
a Public Defendant, but that’s the only fee
associated with it unless the Court makes a
finding after trial that he should repay the
Public Defender. But I don’t know how he could
possibly believe that he would have to go hire
a private attorney.
(App. D. at 63).

The post-conviction court rejected Claim Two,

specifically noting that Petitioner's assertion that he did not
understand that he would be represented by counsel if he proceeded
to trial was inconsistent with Claim Three, also raised in his Rule
3.850 motion, that Burford had misadvised him about testifying at
trial. Id. at 100.

By so doing, the post-conviction implicitly

court concluded that Petitioner was not prejudiced by counsel’s
alleged failure because he was aware that he had the right to counsel
at trial.

The post-conviction court’s rejection of this claim was

affirmed by Florida’s Fifth District Court of Appeal (App. E at 37).
The state court’s conclusion that Petitioner was aware that he
would be represented by counsel if he proceeded to trial was a
factual credibility determination that is entitled to deference in
this Court. See discussion supra Claim One.

Petitioner has not

presented clear and convincing evidence to overcome the state court’s
finding in this regard. 28 U.S.C. § 2254(e).

Based upon the record

before this Court, Petitioner has failed to demonstrate that, had

- 18 -

Burford objected to the trial court’s failure to specifically advise
Petitioner that he would have counsel at trial, “he would not have
pleaded guilty and would have insisted on going to trial.” Hill, 474
U.S. at 59.

The state court's conclusion that Petitioner did not

suffer prejudice from counsel’s alleged failure was not “so lacking
in

justification

that

there

was

an

error

well

understood

and

comprehended in existing law beyond any possibility for fairminded
disagreement.” White, 134 S. Ct. at 1702.

Accordingly, Claim Two

fails to satisfy Strickland’s prejudice prong and is denied pursuant
to 28 U.S.C. § 2254(d).
C.

Claims Three and Four

In Claim Three, Petitioner asserts that his plea was involuntary
because Burford led him to believe that if he (Petitioner) testified
at trial, the state would be allowed to question him about his prior
convictions, and the jury would find out that he had been convicted
of

robberies

in

other

states

(Doc.

1

at

8).

In

Claim

Four,

Petitioner asserts that counsel failed to advise him that he could
have been found guilty of a lesser included offense if he had
proceeded to trial (Doc. 1 at 9).
Petitioner raised both of these claims in his Rule 3.850 motion
where they were rejected by the post-conviction court (App. D at
100-04).

Respondent

urges

that

Claims

Three

and

Four

are

unexhausted because, although Petitioner raised these claims in his
Rule 3.850 motion, unlike the issues raised in Claims One and Two of

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this petition, he did not reference or discuss them in his brief on
appeal (Doc. 11 at 7-9).

Respondent is correct.

The “one complete

round” exhaustion requirement set forth in O'Sullivan v. Boerckel,
526 U.S. 838 (1999) applies to post-conviction review as well as
direct appeal; a prisoner must appeal the denial of post-conviction
relief in order to properly exhaust state remedies. Pope v. Rich,
358 F.3d 852, 854 (11th Cir. 2004)(“Boerckel applies to the state
collateral review process as well as the direct appeal process”);
LeCroy v. Sec’y, Dep’t of Corr., 421 F.3d 1237, 1261 (11th Cir. 2005)
(as Florida prisoner failed to properly exhaust claim on direct
appeal or Rule 3.850 appeal, it was procedurally barred, citing
Coleman).
Pursuant to Rule 9.141(b)(3) of the Florida Rules of Appellate
Procedure, failure to fully brief and argue points on appeal after
receiving an evidentiary hearing on a Rule 3.850 motion constitutes
a waiver of those claims.

See e.g. Leonard v. Wainwright, 601 F.2d

807, 808 (5th Cir. 1979)(Florida prisoner must appeal denial of Rule
3.850 relief to exhaust remedies) 3; Cortes v. Gladish, 216 F. App’x
897, 899-900 (11th Cir. 2007) (recognizing that when a petitioner
receives an evidentiary hearing on his Rule 3.850 motion, his failure
to address issues in his appellate brief constitutes a waiver of
those claims); Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla. 1997)

3

The Eleventh Circuit adopted as precedent decisions of the
former Fifth Circuit rendered prior to October 1, 1981. Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
- 20 -

(failure to fully brief and argue points on appeal constitutes a
waiver of these claims); Duest v. Dugger, 555 So. 2d 849, 852 (Fla.
1990) (same).
Petitioner does not contend that he specifically appealed the
issues raised in Claims Three and Four.

Nor has he shown cause for

and actual prejudice from the default or presented new and reliable
evidence

to

demonstrate

that

he

is

actually

innocent

of

the

underlying offense. Rather, he argues only that he did not know he
had to specifically address each issue in his brief on appeal and
that he “just appealed [his] 3.850 motion as a whole.” (Doc. 1 at
9).

Such an argument does not constitute cause for Petitioner's

procedural default. See Harmon v. Barton, 894 F.2d 1268 (11th Cir.
1990) (ignorance of the law fails to establish cause for a procedural
default); Toole v. McDonough, 379 F. App'x 883, 885 n. 5 (11th Cir.
2010) (rejecting petitioner's contention that his pro se status and
lack

of

legal

knowledge

constituted

an

external

impediment

justifying his failure to exhaust his claim).
Any further attempt at exhaustion in Florida courts would be
futile because any attempt to now raise these claims on appeal would
be untimely and procedurally barred under Florida law. See Fla. R.
Crim. P. 3.850(k) (allowing 30 days for an appeal of a postconviction court’s rejection of a Rule 3.850 motion); Parker v.
Dugger, 876 F.2d 1470 (11th Cir. 1989) (where dismissal to allow
exhaustion

of

unexhausted

claims

would

- 21 -

be

futile

due

to

state

procedural bar, claims are considered procedurally barred in federal
court),rev’d on other grounds, 498 U.S. 308 (1991).

Claims Three

and Four are both unexhausted and procedurally barred, and the Court
will not address the merits of these claims.
Any

of

Petitioner's

allegations

not

specifically

addressed

herein have been found to be without merit.
IV.

Certificate of Appealability 4
Petitioner is not entitled to a certificate of appealability.

A

prisoner

seeking

a

writ

of

habeas

corpus

has

no

absolute

entitlement to appeal a district court's denial of his petition. 28
U.S.C. § 2253(c)(1).

Rather, a district court must first issue a

certificate of appealability (“COA”).

“A [COA] may issue . . . only

if the applicant has made a substantial showing of the denial of a
constitutional

right.”

28

U.S.C.

§

2253(c)(2).

To

make

such

a

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

4

Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court must
issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Id. As this Court has determined
that Petitioner is not entitled to habeas corpus relief, it must now
consider whether Petitioner is entitled to a certificate of
appealability.
- 22 -

further.’” Miller–El, 537 U.S. at 335–36. Petitioner has not made
the requisite showing in these circumstances.
Because

Petitioner

is

not

entitled

to

a

certificate

of

appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The Florida Attorney General is DISMISSED as a named

Respondent.
2.

Claims One and Two of the 28 U.S.C. § 2254 petition for

habeas corpus relief filed by Craig Broughton (Doc. 1) are DENIED,
Claims Three and Four are DISMISSED, and this case is dismissed with
prejudice.
3.

Petitioner is DENIED a certificate of appealability.

4.

The Clerk of Court is directed to terminate any pending

motions, enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of April, 2015.

SA: OrlP-4
Copies: Craig Broughton
Counsel of Record

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15th

day