Bierman v. Secretary, Department of Corrections et al
Filing
23
ORDER dismissing case Signed by Judge Roy B. Dalton, Jr. on 6/22/2016. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOHN ALLEN BIERMAN,
Petitioner,
v.
CASE NO. 6:14-cv-1473-Orl-37GJK
SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
/
ORDER
This cause is before the Court on an amended petition for writ of habeas corpus
(“Amended Petition”) filed pursuant to 28 U.S.C. § 2254 (Doc. 10). Thereafter, Respondents
filed a response to the Amended Petition (Doc. 13). Petitioner filed a reply to the response
(Doc. 17) and a supplemental reply (Doc. 22).
Petitioner alleges two claims for relief in the Amended Petition. For the following
reasons, the Amended Petition is denied.
I.
PROCEDURAL HISTORY
Petitioner was charged in state court case number 05-2012-CF-043149 with dealing
in stolen property (count one), giving false verification of ownership (count two), and
grand theft (count three) (Doc. 13-1 at 5). Petitioner was charged in state court case number
05-2012-CF-043431 with burglary of a dwelling (count one) and grand theft (count two).
Id. at 2, 5. In state court case number 05-2012-CF-043811, Petitioner was charged with
burglary of a dwelling (count one) and grand theft (count two). Id. at 10. Petitioner entered
into a negotiated guilty plea for all three cases in exchange for a twenty-year total sentence.
Id. at 15-17, 29. The State also agreed to enter a nolle prosequi with regard to count three
of case number 05-2012-CF-043149. Id. at 46. The trial court sentenced Petitioner to twentyyear terms of imprisonment for count one in each case as a habitual felony offender and to
five-year terms of imprisonment for count two in each case. Id. at 49-50, 58-72. Petitioner
appealed, and the Fifth District Court of Appeal (“Fifth DCA”) affirmed per curiam. Id. at
94.
Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the
Florida Rules of Criminal Procedure. Id. at 98-122. The trial court summarily denied the
motion. Id. at 124-29. Petitioner appealed, and the Fifth DCA affirmed per curiam (Doc. 132 at 9). Petitioner subsequently filed a motion to correct illegal sentence pursuant to Rule
3.800(a) of the Florida Rules of Criminal Procedure. Id. at 44-57. The trial court denied the
motion. Id. at 59-60. Petitioner appealed, and the Fifth DCA affirmed per curiam. See Bierman
v. State, 160 So. 3d 452 (Fla. 5th DCA 2015) (table).
II.
A.
LEGAL STANDARDS
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
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(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). The phrase “clearly established Federal law,” encompasses only the
holdings of the United States Supreme Court “as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state court
decisions; the ‘contrary to’ and ‘unreasonable application’ clauses articulate independent
considerations a federal court must consider.” Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d
1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh
Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the “contrary to” clause, a federal court may grant the writ if the
state court arrives at a conclusion opposite to that reached by [the United
States Supreme Court] on a question of law or if the state court decides a
case differently than [the United States Supreme Court] has on a set of
materially indistinguishable facts. Under the ‘unreasonable application’
clause, a federal habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the United States Supreme
Court’s] decisions but unreasonably applies that principle to the facts of the
prisoner’s case.
Even if the federal court concludes that the state court applied federal law incorrectly,
habeas relief is appropriate only if that application was “objectively unreasonable.” Id.
Whether a state court's decision was an unreasonable application of law must be assessed
in light of the record before the state court. Holland v. Jackson, 542 U.S. 649, 652 (2004) (per
curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n. 4 (2002) (declining to consider evidence not
presented to state court in determining whether its decision was contrary to federal law).
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Finally, under ' 2254(d)(2), a federal court may grant a writ of habeas corpus if the
state court’s decision “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” A determination of a factual
issue made by a state court, however, shall be presumed correct, and the habeas petitioner
shall have the burden of rebutting the presumption of correctness by clear and convincing
evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. ' 2254(e)(1).
B.
Standard for Ineffective Assistance of Counsel
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
established a two-part test for determining whether a convicted person is entitled to relief
on the ground that his counsel rendered ineffective assistance: (1) whether counsel’s
performance was deficient and “fell below an objective standard of reasonableness”; and
(2) whether the deficient performance prejudiced the defense. 1 Id. at 687-88. A court must
adhere to a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. at 689-90. “Thus, a court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on
the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690;
Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989). In Hill v. Lockhart, 474 U.S. 52, 58 (1985),
In Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the United States Supreme Court
clarified that the prejudice prong of the test does not focus solely on mere outcome
determination; rather, to establish prejudice, a criminal defendant must show that
counsel’s deficient representation rendered the result of the trial fundamentally unfair or
unreliable.
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the Supreme Court of the United States held that “the two-part Strickland v. Washington
test applies to challenges to guilty pleas based on ineffective assistance of counsel.”
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective
assistance of counsel:
has nothing to do with what the best lawyers would have done. Nor is the
test even what most good lawyers would have done. We ask only whether
some reasonable lawyer at the trial could have acted, in the circumstances,
as defense counsel acted at trial. Courts also should at the start presume
effectiveness and should always avoid second guessing with the benefit of
hindsight. Strickland encourages reviewing courts to allow lawyers broad
discretion to represent their clients by pursuing their own strategy. We are
not interested in grading lawyers’ performances; we are interested in
whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those
rules and presumptions, “the cases in which habeas petitioners can properly prevail on
the ground of ineffective assistance of counsel are few and far between.” Rogers v. Zant,
13 F.3d 384, 386 (11th Cir. 1994).
III.
A.
ANALYSIS
Claim One
Petitioner alleges trial counsel was ineffective for failing to file a motion to dismiss
the information in each of his state court criminal cases (Doc. 10 at 3-4). In support of this
claim, Petitioner asserts that the State failed to “comply with 3.140(g) Florida rules of
criminal procedure [and] § 27.04 Florida Statute (2012) by failing to take testimony under
oath from a material witness. . . .” Id. at 3. Petitioner raised this claim in his Rule 3.850
motion, and the trial court summarily denied the claim, concluding there was no basis to
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object to the information and finding any defect in the information was waived when
Petitioner entered his plea (Doc. 13-1 at 126). The Fifth DCA affirmed per curiam (Doc. 132 at 9).
Florida Rule of Criminal Procedure 3.140(g) provides the following:
An information charging the commission of a felony shall be signed by the
state attorney, or a designated assistant state attorney, under oath stating
his or her good faith in instituting the prosecution and certifying that he or
she has received testimony under oath from the material witness or
witnesses for the offense . . . No objection to an information on the ground
that it was not signed or verified, as herein provided, shall be entertained
after the defendant pleads to the merits.
The charging documents filed in the state court provide: “I hereby state under oath that
I am instituting this prosecution in good faith, and I certify that I have received testimony
under oath from the material witness or witnesses for the offense(s)” (Doc. 13-1 at 5, 10).
Furthermore, the charging documents are signed and sworn. Id.
Petitioner has not presented any information or evidence indicating that the
Assistant State Attorney failed to comply with Rule 3.140(g). Therefore, counsel has no
basis to object to the charging documents in this case. Moreover, the Court notes that had
counsel objected, the State would have been entitled to re-file the information with sworn
statements from the victims because the defect was one of form and not one of substance.
See Hedglin v. State, 892 So. 2d 1183, 1184 (Fla. 5th DCA 2005) (citing Alba v. State, 541 So.
2d 747, 748 (Fla. 3d DCA 1989) (holding that while a criminal defendant was entitled to
dismissal of the information because it was unsworn, the defendant was not entitled to
release from the charges because the defect is only one of form and not of substance)).
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Thus, Petitioner cannot demonstrate that counsel’s failure to object to the charging
documents resulted in prejudice.
The state court’s denial of this claim was neither contrary to, nor an unreasonable
application of, clearly established federal law. Accordingly, claim one is denied pursuant
to § 2254(d).
B.
Claim Two
Petitioner contends trial counsel was ineffective for failing to (1) participate in the
discovery process, (2) conduct depositions, (3) prepare a defense for trial, and (4) “let
petitioner face [his] accuser at depositions for trial process” (Doc. 10 at 9). Petitioner
asserts that counsel’s failure to prepare for trial resulted in the entry of an involuntary
plea. Id. at 12. In his reply, Petitioner contends that trial counsel was ineffective for failing
to provide him with copies of discovery documents (Doc. 17 at 19).
Petitioner raised these claims in his Rule 3.850 motion, and the trial court denied
them, concluding Petitioner was precluded from raising the claims because it was an
improper attempt to “go behind the plea” (Doc. 13-1 at 126). The trial court reasoned that
Petitioner could not challenge counsel’s actions prior to the entry of his plea because
Petitioner was advised of the rights he was giving up, and Petitioner indicated that he
wished to give up those rights. Id. at 127. The Fifth DCA affirmed per curiam (Doc. 13-2 at
9).
As an initial matter, the Court concludes that Petitioner’s claim is vague and
conclusory. He has not alleged what depositions were necessary, what defense could
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have been prepared for trial, or how counsel failed to “participate in the discovery
process.” Petitioner merely speculates that additional investigation and discovery could
or should have been done in his case. Petitioner’s assertions are unsubstantiated,
speculative, and will not sustain a claim of ineffective assistance of counsel. See Tejeda v.
Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (stating vague, conclusory, speculative and
unsupported claims cannot support relief for ineffective assistance of counsel).
Moreover, Petitioner has not shown that his plea was involuntary. During the plea
colloquy, Petitioner stated that he had read the plea agreement and discussed it with his
attorney (Doc. 13-1 at 14). Petitioner stated that he was satisfied with counsel’s services.
Id. at 15. The trial court advised Petitioner of the charges and the potential sentences he
faced. Id. at 15-18. Petitioner stated that he was not threatened, coerced, or forced to enter
the plea. Id. at 18-19. Petitioner advised the court that he was entering the plea freely and
voluntarily after discussing the matter with his attorney. Id. at 19. Petitioner stated he
understood the rights he was giving up, which included the right to a jury trial, to compel
and confront witnesses, to present a defense, to testify on his own behalf, and to file
motions. Id. at 22-23.
During the sentencing proceeding, Petitioner complained that his plea was
involuntarily entered. Id. at 38-42. Petitioner stated he felt the entry of the plea was a
“split-second decision” and he could not go to trial “with no defense.” Id. at 42. The trial
court noted that Petitioner had the opportunity to speak up before the entry of his plea
or to decide to take his chances at trial, however, he chose to enter the plea. Id. at 42-43.
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Petitioner’s representations to the trial court are presumed true, and he has not
demonstrated any basis for the Court to overlook or disregard his statements. Blackledge
v. Allison, 431 U.S. 63, 73-74 (1977) (stating “the representations of the defendant . . . [at a
plea proceeding] constitute a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a strong presumption of verity.”).
There is no indication that the plea was unknowingly or involuntarily entered. The record
reflects that Petitioner made an intelligent choice to voluntarily enter a plea after
consideration of the alternative courses of action. See Hill, 474 U.S. at 56; Stano v. Dugger,
921 F.2d 1125, 1141 (11th Cir. 1991) (“a reviewing federal court may set aside a . . . guilty
plea only for failure to satisfy due process: If a defendant understands the charges against
him, understands the consequences of his guilty plea, and voluntarily chooses to plead
guilty, without being coerced to do so, the guilty plea . . . will be upheld on federal
review.”). 2
To the extent Petitioner argues for the first time in his reply that trial counsel was
ineffective for failing to advise him that he could be subject to sentence enhancements,
his claim fails (Doc. 17 at 14). The trial court stated during the plea colloquy that Petitioner
faced a potential thirty-year sentence as a habitual felony offender with a fifteen-year
minimum mandatory term as a prison releasee reoffender (Doc. 13-1 at 16-17). Petitioner
stated that he understood his potential sentence. Id. at 17-18. At no point did Petitioner
state that counsel had failed to advise him regarding the possible sentence enhancements.
Petitioner’s statements are presumed true, and he has not shown that the Court should
overlook those statements. Blackledge, 431 U.S. at 73-74. Petitioner has not demonstrated
deficient performance or prejudice because he cannot shown that but for counsel’s
actions, he would not have entered the plea and instead would have gone to trial. This
claim is denied.
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Petitioner also claims that counsel failed to provide him with copies of his
discovery. The record reflects that on January 3, 2013, after Petitioner entered his plea,
counsel advised Petitioner that to receive a “personal set of the discovery” he had to pay
for the documents (Doc. 1-1 at 9). Counsel again advised Petitioner regarding this matter
on April 16, 2013. Id. at 10. Counsel stated that Petitioner could pay for a copy of the
discovery or his appellate counsel could request the discovery. Id.
Florida law provides that “[f]iles prepared and maintained by an attorney for the
purpose of representing a client are the attorney’s personal property.” Potts v. State, 869
So. 2d 1223, 1225 (Fla. 2d DCA 2004) (citation omitted). However, a criminal defendant is
entitled to “receive from his former counsel, at no cost to petitioner, any and all trial and
hearing transcripts, copies of motions, and any state discovery presented to defense
counsel.” Smith v. State, 889 So. 2d 1009, 1010 (Fla. 3dDCA 2004).
Petitioner has arguably demonstrated that counsel’s failure to provide him with
copies of his discovery free of charge amounts to deficient performance. Nevertheless,
Petitioner cannot demonstrate prejudice. Petitioner has not stated what documents he
wished to review or how any of the discovery information would have resulted in a
change in his decision to plead guilty. Petitioner faced a thirty-year sentence as a habitual
felony offender in each case (Doc. 13-1 at 16). Petitioner also admitted to police that he
committed the crimes. Id. at 21-22. Even assuming counsel’s actions were deficient,
Petitioner cannot show that he would not have entered the plea and instead would have
gone to trial. See Hill, 474 U.S. at 58.
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The state court’s denial of this claim was neither contrary to, nor an unreasonable
application of, clearly established federal law. Accordingly, claim two is denied pursuant
to § 2254(d). 3
Any of Petitioner’s allegations not specifically addressed herein have been found
to be without merit.
IV.
CERTIFICATE OF APPEALABILITY
This Court should grant an application for 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 such a showing “the petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec’y Dep’t of Corr.,
568 F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal habeas petition
on procedural grounds without reaching the underlying constitutional claim, a certificate
of appealability should issue only when a Petitioner shows “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
To the extent Petitioner claims that the trial court should have held a Richardson
hearing, the Court notes that this claim is without merit (Doc. 1 at 10-11). In Richardson v.
State, 246 So. 2d 771 (Fla. 1971), the court held a trial court must conduct an inquiry when
a discovery violation occurs to determine whether the violation was (1) willful or
inadvertent, (2) substantial or trivial, and (3) had a prejudicial effect on the aggrieved
party’s trial preparation. This procedure is used when one party fails to turn over
discovery to another party. This rule does not apply to counsel’s alleged failure to give
Petitioner documents from his case file.
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correct in its procedural ruling.” Id.; Lamarca, 568 F.3d at 934. However, a prisoner need
not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
The Court concludes that Petitioner has not made the requisite showing in these
circumstances. Petitioner is not entitled to a certificate of appealability.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
The Amended Petition for Writ of Habeas Corpus filed by John Allen
Bierman (Doc. 10) is DENIED, and this case is DISMISSED WITH PREJUDICE.
2.
Petitioner is DENIED a certificate of appealability.
3.
The Clerk of the Court is directed to enter judgment and close the case.
DONE AND ORDERED in Orlando, Florida, this 22nd day of June, 2016.
Copies to:
OrlP-3 6/22
Counsel of Record
John Allen Bierman
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