Williams v. Secretary, DOC et al
Filing
73
ORDER denying 44 --amended petition for the writ of habeas corpus; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER A JUDGMENT against Williams and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/7/2016. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID WILLIAMS,
Applicant,
v.
CASE NO. 8:07-cv-1521-T-23TBM
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Williams applies under 28 U.S.C. § 2254 for the writ of habeas corpus
(Doc. 44) and challenges his convictions for false application for a driver’s license,
fraudulent use of personal identification, and scheming to defraud, for which he is
imprisoned for a total of fifteen years. Williams pleaded nolo contendere. Numerous
exhibits (“Respondent’s Exhibit __”) support the amended response. (Doc. 51)
I. INTRODUCTION
This application challenges the validity of Williams’s pleas of nolo contendere in
two separate criminal cases. In 02-08819 a single-count information charged
Williams with “Scheme to Defraud.” (Respondent’s Exhibit 19 at 63) This order
refers to that criminal case as the “fraud case.” In 02-07376 a two-count information
charged Williams with “False Application for a Driver’s License” and “Criminal Use
of Personal Identification Information.” (Respondent’s Exhibit 19 at 1) This order
refers to that criminal case as the “driver’s license case.” Williams’s change of plea
for each information occurred at the same hearing and proceeded as a single case on
both direct appeal and in post-conviction. Likewise, the federal application presents
the two convictions in a single action.
Williams timely filed his application following his direct appeal but before he
pursued state post-conviction proceedings. As a consequence, his claims of ineffective
assistance of counsel were unexhausted. This federal action was stayed and
administratively closed because, under Florida’s two-year limitation, Williams could
still timely file a Rule 3.850 motion for post-conviction relief to exhaust his claims of
ineffective assistance of counsel. Four years later this action was re-opened after the
post-convictions proceedings concluded and after Williams amended his application.
(Doc. 44)
II. FACTS
In the fraud case Williams was charged with defrauding at least six individuals
by representing that he was purchasing distressed merchandise, which he would then
sell and divide the profits with his investors. At the change of plea hearing, the
prosecutor recited the following factual basis to support the charge in the fraud case
(Respondent’s Exhibit 19 at 156S58):
The offense had occurred between August 1999 through May of
2001 in various locations in Pinellas County, Florida. This
defendant had befriended and gained the trust of six individual
victims conning them to invest at different time periods in his
business. He essentially told all of them that he was buying
distressed merchandise from stores that were going bankrupt or
closing and would then turnaround and sell them on the
secondary market. For instance, that he was buying and selling
from Radio Shack, Home Depot and the Dollar Tree. The
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victims would then invest in this with the expectation of getting
their capital, plus a percentage of the profit back. The victims all
signed promissory notes as to what money they invested and the
percentage of their profit.
During the course of the time frame the victims would go over
their investments and continue to infuse additional capital into
their investment sum. The Defendant also told them that he was
doing off-market thrift shops . . . which were, in fact, businesses,
[and] then he said he . . . was doing this nonprofit organizations
for AIDS and cancer patients.
Based on this and having befriended them, he was able to gain
each of the victims’ trust. Prior to paying off any of the victims,
the defendant left town and has never repaid any capital or
interest to any of these victims. The dollar amounts . . . to
various victims . . . total . . . $499,555.
In the driver’s license case Williams was charged with having unlawfully
obtained the personal identification of another person and used the information to
obtain a Florida driver’s license. Williams committed this criminal act shortly before
he fled from Pinellas County as described above in the fraud case. At the change of
plea hearing, the prosecutor recited the following factual basis to support the charges
in the driver’s license case (Respondent’s Exhibit 19 at 127S28):
[The] offense occurred on April 20th, 2001, at the Pinellas Park
Department of Motor Vehicles on 62nd Avenue North in
Pinellas Park, Pinellas County, Florida.
This Defendant had been under investigation for a grand theft in
Pinellas County where he had schemed several elderly victims
out of hundreds of thousands of dollars. After taking the victim’s
money, he disappeared from Pinellas County which started the
grand theft investigation. We later learned that this Defendant
was possibly down in Fort Lauderdale because the Defendant’s
ex-girlfriend contacted the Sheriff’s Office because he was —
someone was trying to get credit cards using her Social Security
number down in Fort Lauderdale.
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Basically they were able to track down the tag on a vehicle and
were able to learn that this Defendant, on [April 20, 2001],
walked into the DMV Office in Pinellas Park and got a driver’s
license in the name of James Bruce Sterling. The Defendant
previously had a driver’s license in his own name, Terry
Munsen . . . which was obtained on [April 4, 1999]. The
photographs on both the DLs in the name of Terry Munsen and
James B. Sterling were of the exact same person where he had
used the date of birth of James B. Sterling and the Social
Security number of James B. Sterling.
The detective was able to track down Mr. Sterling in San Diego
who had . . . his own California DL and a totally different
picture. Sterling was contacted. He advised that he did not know
Terry Munsen at all and never authorized him to use his ID. It
was at that time determined that his true name was David
Williams.
Williams offered no objection to the above facts when he pleaded nolo
contendere in both cases.
III. NOLO CONTENDERE PLEA
A conviction based on a plea of nolo contendere is reviewed the same as a
conviction based on a guilty plea. Wallace v. Turner, 695 F.2d 545, 548 (11th Cir.
1982). Tollett v. Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a
non-jurisdictional defect:
[A] guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty
plea.
This waiver of rights precludes most challenges to the conviction. See e.g., United
States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003) (“Generally, a voluntary,
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unconditional guilty plea waives all non-jurisdictional defects in the proceedings.”),
and Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (“A defendant who
enters a plea of guilty waives all non-jurisdictional challenges to the constitutionality
of the conviction, and only an attack on the voluntary and knowing nature of the plea
can be sustained.”). A guilty plea waives a claim of ineffective assistance of counsel
based on a pre-plea event.
In his habeas petition, Hutchins alleges that his trial counsel was
ineffective for failing to explicitly define and advise him of a
statute of limitations defense prior to advising him to waive that
defense and plead guilty. Hutchins’s voluntary guilty plea,
however, waived any ineffective assistance of counsel claim.
Hutchins v. Sec’y, Dep’t of Corr., 273 Fed. App’x 777, 778 (11th Cir.), cert. denied,
555 U.S. 857 (2008). Consequently, the entry of a guilty plea waives a claim (other
than a challenge to the court’s jurisdiction or a challenge to the voluntariness of the
plea), including both a substantive claim and a purported failing of counsel that
occurred before entry of the plea. “[T]he representations of the defendant . . . [at the
plea proceeding] as well as any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent collateral proceedings. Solemn
declarations in open court carry a strong presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 73S74 (1977). Williams’s allegations are in direct conflict with his
statements during the plea colloquy. Statements during a plea colloquy are presumed
true. See United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
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IV. STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th
Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly
deferential standard for federal court review of a state court adjudication, states 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 with respect to any claim that was adjudicated on the
merits in State court proceedings 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.
In Williams v. Taylor, 529 U.S. 362, 412S13 (2000), the Supreme Court
interpreted this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power of a
federal habeas court to grant a state prisoner’s application for a
writ of habeas corpus with respect to claims adjudicated on the
merits in state court. Under § 2254(d)(1), the writ may issue only
if one of the following two conditions is satisfied — the state-court
adjudication resulted in a decision that (1) “was contrary to . . .
clearly established Federal Law, as determined by the Supreme
Court of the United States” or (2) “involved an unreasonable
application of . . . clearly established Federal law, as determined
by the Supreme Court of the United States.” Under the “contrary
to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by this Court
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on a question of law or if the state court decides a case differently
than this 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 this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s
case.
“The focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable, . . . an unreasonable application is different
from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
131 S. Ct. 770, 786S87 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir.
2001) (“It is the objective reasonableness, not the correctness per se, of the state court
decision that we are to decide.”). 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. at 412.
The purpose of federal review is not to re-try the state case. “The [AEDPA]
modified a federal habeas court’s role in reviewing state prisoner applications in
order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions
are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. at 694. A
federal court must afford due deference to a state court’s decision. “AEDPA prevents
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defendants — and federal courts — from using federal habeas corpus review as a
vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett,
559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)
(“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of
the doubt’ . . . .”) (citations omitted).
In a per curiam decision without a written opinion the state appellate court
on direct appeal affirmed Williams’s convictions and sentence. (Respondent’s
Exhibit 14) Similarly, in another per curiam decision without a written opinion
the state appellate court affirmed the denial of Williams’s subsequent Rule 3.850
motion to vacate. (Respondent’s Exhibit 34) The state appellate court’s per curiam
affirmances warrant deference under Section 2254(d)(1) because “the summary nature
of a state court’s decision does not lessen the deference that it is due.” Wright v.
Moore, 278 F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245
(2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter,
131 S. Ct. at 784S85 (“When a federal claim has been presented to a state court and
the state court has denied relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.”), and Bishop v. Warden, 726 F. 3d 1243, 1255S56 (11th Cir.
2013) (describing the difference between an “opinion” or “analysis” and a “decision”
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or “ruling” and explaining that deference is accorded the state court’s “decision” or
“ruling” even if there is no “opinion” or “analysis”).1
Review of the state court decision is limited to the record that was before the
state court:
We now hold that review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim
on the merits. Section 2254(d)(1) refers, in the past tense, to a
state-court adjudication that “resulted in” a decision that was
contrary to, or “involved” an unreasonable application of,
established law. This backward-looking language requires an
examination of the state-court decision at the time it was made.
It follows that the record under review is limited to the record in
existence at that same time, i.e., the record before the state
court.
Pinholster, 131 S. Ct. at 1398. Williams bears the burden of overcoming by clear and
convincing evidence a state court factual determination. “[A] determination of a
factual issue made by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness
applies to a finding of fact but not to a mixed determination of law and fact. Parker v.
Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state
court’s rejections (Respondent’s Exhibits 25 and 30) of Williams’s post-conviction
claims warrant deference in this case.
1
Contrary to Williams’s contention, deference is entitled to a per curiam decision without a
written opinion. Williams confuses the distinction between a per curiam decision’s lack of
precedential value to other cases and the controlling nature of the decision in the case the decision
decides.
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The application asserts four grounds for relief. A theme that runs throughout
most of the application is that James B. Sterling had authorized Williams to use his
identification, that law enforcement falsified information regarding the authorization,
and that trial counsel was ineffective in not adequately investigating the authorization.
The first ground asserts claims that were resolved in the state post-conviction
proceeding, specifically, numerous allegations of ineffective assistance of counsel.
The remaining three grounds involve pre-plea and direct appeal issues, specifically,
that Williams was denied counsel on direct appeal and that the primary investigating
detective both falsified information and falsely testified. This order addresses the preplea and direct appeal issues before the post-conviction issues.
V. GROUNDS FOR RELIEF
A. Non-Ineffective Assistance Claims
Grounds Three and Four:
In ground three Williams alleges that the investigating detective falsified “the
initial warrant[,] never sat down and interviewed James B. Stirling on the fact that he
gave me his birth certificate[, and] falsified the parties involved and the amounts of
money involved.” In ground four Williams alleges that the investigating detective
“falsified the grounds and facts for the arrest warrant,” specifically, that the detective
“never sat down and interviewed James B. Stirling . . . .” The respondent correctly
asserts two reasons why Williams is entitled to relief under neither ground.
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First, review under Section 2254 is limited to alleged violations of a federally
protected right. “The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). Williams asserts the violation of no constitutional right,
however, these allegations against the investigating detective are also asserted as part
of Williams’s claims of ineffective assistance of counsel. Nevertheless, the allegations
do not assert a separate claim that Williams can pursue under Section 2254.
Second, even if the allegations could assert a separate claim, Williams’s entry
of a plea of nolo contendere waived the claim. See McMann v. Richardson, 397 U.S. 759,
766 (1970) (holding that a plea waives the right to trial and, therefore, waives the
“right to contest the admissibility of any evidence the State might have offered against
the defendant”).
Ground Two:
Williams alleges that he was denied the right to counsel on direct appeal.
Williams admits that he was appointed a member of the public defender’s office to
represent him on appeal, but because he disagreed with appellate counsel’s strategy,
counsel moved to withdraw as Williams requested. (Respondent’s Exhibits 1 and 2)
The appellate court granted Williams’s request for counsel to withdraw.
(Respondent’s Exhibits 4 and 5) Williams’s subsequent motion for the appointment
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of counsel not associated with a public defender’s office was denied and Williams
filed a pro se opening brief. (Respondent’s Exhibits 6, 7, and 11)
Although a “State must provide counsel for the indigent on his first appeal as of
right,” Douglas v. California, 372 U.S. 353 (1963), that right guarantees neither “a
‘meaningful relationship’ between an accused and his counsel,” Morris v. Slappy,
461 U.S. 1, 14 (1983), nor the “right to representation by an attorney he cannot
afford.” Wheat v. United States, 486 U.S. 153, 159 (1988). A indigent who dismisses
his appointed counsel and proceeds pro se “cannot thereafter complain that the quality
of his own defense amounted to a denial of ‘effective assistance of counsel.’” Faretta v.
California, 422 U.S. 806, 835, n.46 (1975).
Williams was provided with appellate counsel, whom he chose to dismiss.
Consequently, Williams was not denied counsel on direct appeal.
B. Ineffective Assistance Claims
Williams claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas,
46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386
(11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective
assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is well
settled and well documented. In Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme
Court set forth a two-part test for analyzing ineffective assistance
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of counsel claims. According to Strickland, 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
deprive the defendant of a fair trial, a trial whose result is
reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of ineffectiveness claims on either of its
two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. “[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.” 466 U.S. at 690.
Strickland requires that “in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.”
466 U.S. at 690.
Williams must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
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judgment.” 466 U.S. at 691S92. To meet this burden, Williams must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690S91. Williams cannot meet his burden merely by
showing that the avenue chosen by counsel proved unsuccessful.
The test 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 . . . . 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, 1220S21 (11th Cir. 1992). Accord Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial
lawyers, in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or
appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting Burger v.
Kemp, 483 U.S. 776, 794 (1987)). How extensive of an investigation that counsel
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must perform was recently addressed in Hittson v. GDCP Warden, 759 F.3d 1210, 1267
(11th Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015):
[W]e have explained that “no absolute duty exists to investigate
particular facts or a certain line of defense.” Chandler, 218 F.3d
at 1317. “[C]ounsel has a duty to make reasonable investigations
or make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691, 104
S. Ct. at 2066 (emphasis added). “[C]ounsel need not always
investigate before pursuing or not pursuing a line of defense.
Investigation (even a nonexhaustive, preliminary investigation)
is not required for counsel reasonably to decline to investigate a
line of defense thoroughly.” Chandler, 218 F.3d at 1318. “In
assessing the reasonableness of an attorney’s investigation . . . a
court must consider not only the quantum of evidence already
known to counsel, but also whether the known evidence would
lead a reasonable attorney to investigate further.” Wiggins, 539
U.S. at 527, 123 S. Ct. at 2538.
See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a
frivolous claim).
Although the Strickland standard controls a claim that counsel was ineffective in
recommending that a client plead guilty, Hill v. Lockhart, 474 U.S. 52 (1985), Agan v.
Singletary, 12 F.3d 1012 (11th Cir. 1994), greater evidence is needed to prove both
deficient performance and prejudice if the client pleads guilty. “[C]ounsel owes a
lesser duty to a client who pleads guilty than to one who decided to go to trial, and in
the former case counsel need only provide his client with an understanding of the law
in relation to the facts, so that the accused may make an informed and conscious
choice between accepting the prosecution’s offer and going to trial.” Wofford v.
Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). And to prove prejudice, “the
defendant must show that there is a reasonable probability that, but for counsel’s
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errors, he would not have pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. at 59.
Williams must prove that the state court’s decision was “(1) . . . contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States or (2) . . . 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). Sustaining a claim of ineffective assistance
of counsel is very difficult because “[t]he standards created by Strickland and § 2254(d)
are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’
so.” Richter, 131 S. Ct. at 788. See also Pinholster, 131 S. Ct. at 1410 (An applicant
must overcome this “‘doubly deferential’ standard of Strickland and the AEDPA.”),
Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011) (“Double deference
is doubly difficult for a petitioner to overcome, and it will be a rare case in which an
ineffective assistance of counsel claim that was denied on the merits in state court is
found to merit relief in a federal habeas proceeding.”), and Pooler v. Sec’y, Dep’t of
Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s
ineffective counsel claim — which is governed by the deferential Strickland test —
through the lens of AEDPA deference, the resulting standard of review is “doubly
deferential.”), cert. denied, 134 S. Ct. 191 (2013).
In summarily denying Williams’s motion for post-conviction relief, the state
court specifically recognized that Strickland governs a claim of ineffective assistance of
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counsel. (Respondent’s Exhibit 25) Because the state court rejected the claims based
on Strickland, Williams cannot meet the “contrary to” test in Section 2254(d)(1).
Williams instead must show that the state court unreasonably applied Strickland or
unreasonably determined the facts. In determining “reasonableness,” a federal
application for the writ of habeas corpus authorizes determining only “whether the
state habeas court was objectively reasonable in its Strickland inquiry,” not an
independent assessment of whether counsel’s actions were reasonable. Putnam v.
Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002).
The presumption of correctness and the highly deferential standard of review requires
that the analysis of each claim begin with the state court’s analysis.
Ground One:
The respondent fairly describes Williams’s claims of ineffective assistance of
counsel as “eighteen one line claims of how his counsel was ineffective [with] no
factual basis for any of his claims [except] one vague statement per claim.” (Doc. 51
at 25S26) The post-conviction court organized the claims into five groups, labeled as
“Grounds ISV,” an organization that both Williams followed in his amended motion
for post-conviction relief and the post-conviction court retained when it denied the
amended motion for post-conviction relief. (Respondent’s Exhibits 23S25)2 The postconviction court summarily denied four of the groups of claims as insufficiently
2
To the extent that the federal application might assert a factual allegation of deficient
performance beyond what Williams presented to the state courts, a new claim is both unexhausted
and procedurally defaulted. Williams’s federal review is necessarily limited to what he presented to
the state courts.
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pleaded for the following reasons (Respondent’s Exhibit 25 at 3S6) (citations to the
record omitted):
Ground I
First, the Defendant alleges that his counsel was ineffective for
failing to investigate his case and file a motion to suppress his
alleged confession. The Defendant asserts that he asked his
counsel to file this motion, but counsel failed to listen to the facts
in his case. He claims that Detective Cruise, a detective assigned
to his case, lied and withheld the Defendant’s real statement that
he bought truckloads of merchandise below cost. The Defendant
alleges that had counsel investigated his claims and filed the
motion to suppress, he would have proceeded to trial.
Despite the Court’s Order granting the Defendant leave to
amend to file a facially sufficient claim, the Defendant has still
failed to allege prejudice. In his claim, the Defendant fails to
indicate with any degree of specificity what “claims” he is
referring to, how those claims relate to his case, or how such
failure to investigate them resulted in prejudice. The Defendant
also fails to allege upon what basis counsel would have filed a
motion to suppress. From the record, it appears that the
Defendant gave a post-Miranda confession to the crimes.
Furthermore, the Defendant does not explain in what way he
was prejudiced by counsel’s alleged deficiencies. As noted
above, mere conclusory allegations are not enough to establish a
prima facie case based on a legally valid claim. See Griffin, 866 So.
2d at 9. Moreover, the record clearly demonstrates that the
Defendant did not want to go to trial, but rather took an early
plea. During the motion hearing, counsel stated that the
Defendant had asked him to schedule the change of plea hearing
even though they just recently got discovery materials. Counsel
stated that the Defendant wished to dispose of this case and
return to Arkansas where he was serving a seventeen-year
sentence in Federal prison. In light of the record, and since the
Defendant already had one opportunity to amend his facially
sufficient claim, but failed to cure the pleading defect, this
Ground is now denied.
....
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Ground III
The Defendant alleges that counsel was ineffective for failing to
interview the list of witnesses he provided. The Defendant
asserts that he gave counsel a list of potential witnesses,
including Abdullah Ahmed, John Chen, Bill Bradley, Jerry
Gold, and Sam Washington. He alleges that counsel never
contacted these witnesses, some of which were alibi witnesses.
The Defendant alleges that this forced him to plea no contest
instead of proceeding to trial.
Despite the Court’s Order granting the Defendant leave to
amend to file a facially sufficient claim, the Defendant has still
failed to satisfy Nelson v. State, 875 So. 2d 579 (Fla. 2004). The
Defendant does not allege with any specificity what these
witnesses would have testified about or that they were available
to testify. Furthermore, the Defendant again fails to allege how
he was prejudiced by counsel’s alleged deficiency. Since the
Defendant already had one opportunity to amend his facially
sufficient claim, but failed to cure the pleading defect, this
Ground is now denied.
Ground IV
The Defendant alleges that counsel was ineffective for failing to
object to the Defendant being allowed to wear a jumpsuit to
court. He asserts that the other inmates were permitted to wear
street clothes when they appeared in court. The Defendant
claims that anyone, especially judges, who see a person wearing
a jail jumpsuit automatically judge that person to be guilty. He
claims that because counsel failed to get the Defendant a suit to
wear to court he was prejudiced and would have proceeded to
trial.
The Defendant’s claim is without merit and is facially
insufficient. In this claim, the Defendant makes conclusory and
speculative allegations such that he “would have been acquitted”
and that “especially Judges see a person wearing a jail jumpsuit
automatically judge that person to be guilty.” Such allegations
cannot be the basis for post-conviction relief. See Bass v. State,
932 So. 2d 1170, 1172 (Fla. 2d DCA 2006).
Additionally, the Defendant was not required to go to trial in his
jail jumpsuit; rather, he opted to take a plea very early on in his
case. The record demonstrates that the Defendant requested his
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counsel to calendar the change of plea at an early date so as to
dispose of his Florida cases in an expeditious manner. At this
point in the Defendant’s case, the trial date was still three
months away. Additionally, only two months and fourteen days
passed between the Defendant’s advisement in these cases and
his plea of nollo contendere. Therefore, the Defendant’s attorney
could not be deficient for failing to secure street clothes for a trial
that was uncertain to happen since the Defendant wanted to take
an early plea, nor could counsel be deficient in failing to secure
street clothes when a trial date was still months away. Moreover,
the Defendant does not claim that counsel threatened that he
would have to wear his jail clothes into court. It is clear the
Defendant was not prejudiced by counsel’s alleged failure
because there was no evidence that the Defendant would have
been required to wear his jail clothing during trial nor was the
Defendant ever compelled to stand trial in his prison jumpsuit.
See Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988). The
Defendant has failed to allege sufficient prejudice pursuant to
Strickland. Consequently, this Ground is denied.
Ground V
Lastly, the Defendant alleges that his counsel failed to properly
advise him about his no contest plea. He asserts that he was lied
to, pressured, and the material facts were misrepresented in
order to induce him to enter a plea. Specifically, the Defendant
claims that counsel took out her anger about issues she had with
her own father on the Defendant. He claims that she spent “90%
of the twenty minutes she was with me bitching about how
much I was like her father.” He also alleges that her animosity
towards him forced him to enter a plea. He claims that had he
had an attorney to present his defense and investigate the facts,
the Defendant would have proceeded to trial.
As stated above in Ground I, the Defendant has again failed to
amend to file a facially sufficient claim. In this Ground, the
Defendant fails to allege prejudice. The Defendant has failed to
show how counsel’s allegedly bad relationship with her father
prejudiced him. This claim is conclusory and conclusory
allegations are not enough. See Griffin, 866 So. 2d at 1.
Additionally, the plea colloquy at the change of plea hearing
conclusively refutes the Defendant’s claim. He stated in open
court that he was entering his plea freely and voluntarily.
Therefore, this Ground is denied.
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The post-conviction court initially denied all of the grounds as insufficiently
pleaded. The appellate court remanded for the post-conviction court to address more
fully the “Ground II,” which the post-conviction court denied on remand as follows
(Respondent’s Exhibit 30 at 2) (citations to the record omitted):
[T]he Defendant claims that counsel was ineffective for failing to
present any defense on his behalf. The Defendant claims that he
told counsel that he was innocent of stealing the victim’s
identity. He claims that he had obtained the victim’s consent to
use the victim’s personal information. He claims that counsel
failed to verify his assertions. The Defendant asserts that counsel
failed to actively advocate the Defendant’s case or prepare for
trial. He further alleges that had counsel done so, he would have
gone to trial.
The Defendant’s claim is directly refuted by the record. The
Defendant did not obtain consent from the victim to use his
personal information. Therefore, consent would not have been a
viable defense.
As discussed earlier under “III. Nolo Contendere Plea,” each of these allegations
of deficient performance occurred before Williams pleaded nollo contendere and, as a
consequence, each claim is waived. The transcript from the plea hearing shows that,
for both the fraud charge and the driver’s license charge, Williams represented that he
was “satisfied with [counsel’s] services.” (Respondent’s Exhibit 19, vol. II at 127
and 155) The transcript discloses that Williams was singularly focused on convincing
the judge to recommend that his state sentence run concurrently with his federal
sentence. Despite Williams’s persistence, the state judge held steadfast in denying
Williams’s request for a recommendation that the state sentence run concurrently with
the federal sentence. (Respondent’s Exhibit 19, vol. II at 134S40 and 150S52) The
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state court reasonably applied Strickland in determining that Williams failed to prove
both deficient performance and resulting prejudice.
To summarize, Williams fails to meet his burden to show that the state court’s
decision was either an unreasonable application of controlling Supreme Court
precedent or an unreasonable determination of fact. As Burt v. Titlow, 134 S. Ct. 10,
15S16 (2013), recognizes, this burden is very difficult to meet:
Recognizing the duty and ability of our state-court colleagues to
adjudicate claims of constitutional wrong, AEDPA erects a
formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court. AEDPA requires “a
state prisoner [to] show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification
that there was an error . . . beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. ___, ___, 131 S.
Ct. 770, 786–787, 178 L. Ed. 2d 624 (2011). “If this standard is
difficult to meet” — and it is — “that is because it was meant to
be.” Id., at ___, 131 S. Ct., at 786. We will not lightly conclude
that a State’s criminal justice system has experienced the
extreme malfunctio[n]” for which federal habeas relief is the
remedy. Id., at___, 131 S. Ct., at 786 (internal quotation marks
omitted).
Accordingly, Williams’s amended application for the writ of habeas corpus
(Doc. 44) is DENIED. The clerk must enter a judgment against Williams and close
this case.
DENIAL OF BOTH
A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Williams is not entitled to a certificate of appealability (“COA”). A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s
denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first
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issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” To merit a COA,
Williams must show that reasonable jurists would find debatable both the merits of
the underlying claims and the procedural issues he seeks to raise. See 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d
926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would
debate either the merits of the claims or the procedural issues, Williams is entitled to
neither a COA nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Williams must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 7, 2016.
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