Ramirez et al v. Secretary, Department of Corrections

Filing 15

OPINION denying: 1 --petition for writ of habeas corpus; declining to issue a certificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to ENTER JUDGMENT for the respondent, to TERMINATE any pending motion, and to CLOSE the case. Signed by Judge Steven D. Merryday on 10/29/2013. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DAVID RAMIREZ,
Petitioner,
v.

CASE NO: 8:12-cv-1216-T-23TBM

KENNETH S. TUCKER, SECRETARY,
DEPARTMENT OF CORRECTIONS,
Respondent.
/

ORDER
David Ramirez timely petitions this Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, challenging the validity of his state convictions imposed pursuant to a
plea of nolo contendere. After carefully reviewing the Petition,1 the Response filed by
the State of Florida,2 Petitioner’s Reply,3 and the entire record, the Court concludes that
the petition should be denied.
PRELIMINARY FACTS AND HISTORY
When Ramirez was nineteen, he committed two counts of lewd and lascivious
battery on his cousin, who was thirteen at the time. These second degree felonies were

1

See docket 1.

2

See docket 8.

3

See docket 13.

committed between late December 2004 and January 16, 2005.4 While he was released
on bond, he committed the third degree felonies of burglary and grand theft on
September 26 and 27, 2005.5 He also impregnated a sixteen-year-old, who gave birth to
his baby prior to his sentencing in September, 2007.6
On July 17, 2007,7 Ramirez entered an open plea of nolo contendere on all
charges.8 Before accepting the plea, the state trial court informed Ramirez of the
maximum sentence of forty years in prison, which included fifteen years on each of the
two counts of lewd and lascivious battery and five years each on the burglary and grand
theft.9 The court noted that Ramirez scored to a low end guidelines sentence of 15.9
years.10 The state decided to seek the maximum.11
At sentencing on September 25, 2007, the court heard from seven witnesses:
Ramirez’ mother, two aunts, one uncle, a cousin (the victim), the mother of the girl
4

See docket 10, Exh. 6 (Felony Information in Case No. CRC05-588CFAES filed in March

2005).
5

See docket 10, Exh. 1 (Felony Information in Case No. CRC05-5250CFAES filed in
November 2005).
6

See docket 10, Exh. 7, p. 5.

7

Prior to the plea hearing, Ramirez had entered a written plea of guilty to the burglary and grand
theft on January 5, 2007. See docket 10, Exh. 2 (Plea Form in Case 5250). The judge withheld
adjudication of guilt and imposed two years’ probation. See docket 10, Exh. 3 (Judgment in Case 5250).
Approximately one month later, Mr. Ramirez violated his probation by possessing and using cocaine. See
docket 10, Exh. 4 (Warrant and Affidavit for violation of probation in Case 5250).
8

See docket 10, Exh. 7, pp. 19-21.

9

See docket 10, Exh. 7, pp. 13, 16-17 & 21.

10

See docket 10, Exh. 7, p. 23.

11

See docket 10, Exh. 7, p. 21.

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Ramirez impregnated while on bond, and the detective.12 The state sought the maximum
of thirty years on the lewd and lascivious batteries.13 On the motion for a downward
departure, trial counsel argued (1) that Ramirez was eligible for youthful offender status,
which carries no more than a six-year sentence and (2) that his mental illness warranted a
downward departure.14 The judge imposed a sentence of fifteen years in prison on the
first count of the lewd and lascivious battery and a consecutive five-year prison term
followed by ten years’ probation on the second count of the lewd and lascivious charge.15
Ramirez also received concurrent five-year prison terms on the burglary and grand theft,
concurrent with the second count of the lewd and lascivious battery.16 The total sentence
imposed was twenty years’ incarceration followed by ten years’ probation.17
On direct appeal, the public defender filed an Anders18 brief, and Ramirez
voluntarily dismissed the appeal.19 Ramirez timely filed a motion for post-conviction
relief pursuant to Florida Rule of Criminal Procedure 3.850 and raised one claim of

12

See docket 10, Exh. 8, pp. 11-63.

13

See docket 10, Exh. 8, p. 67 & 69.

14

See docket 10, Exh. 8, pp. 74-75.

15

See docket 10, Exh. 8, p. 79; docket 10, Exh. 9.

16

See docket 10, Exh. 8, p. 80.

17

See docket 10, Exh. 8, p. 80.

18

Anders v. California, 386 U.S. 738 (1967).

19

See docket 10, Exhs. 10, 12, 13, 14, & 15.

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ineffective assistance of counsel.20 After an evidentiary hearing,21 the state trial court
denied the motion.22 The denial was affirmed per curiam without opinion by the state
appellate court on May 18, 2012.23
GROUND FOR FEDERAL HABEAS RELIEF
Ramirez timely raises the same ground in this proceeding as he raised in his
motion for post-conviction relief filed pursuant to Florida Rule of Criminal
Procedure 3.850: his counsel was ineffective for misadvising him during the plea
proceedings.24 He claims he would have received a ten-year prison sentence, rather than
twenty years in prison followed by ten years’ probation, if his counsel had advised him to
accept the state’s offer of a ten-year sentence. According to Ramirez, his trial counsel
was certain he would be sentenced as a youthful offender and receive no more than six
years on all charges. Ramirez’ story was supported by the affidavits and testimony of his
mother, aunt, and grandmother, who were all present when his trial counsel allegedly
discussed the existence of a ten-year offer and told them Ramirez should request youthful
offender status and no more than six years. Ramirez asserts that trial counsel rejected the
20

See docket 10, Exh. 16.

21

Based on Johnson v. State, 757 So. 2d 586 (Fla.Dist.Ct.App. 2000), the trial court properly
ordered an evidentiary hearing to determine whether trial counsel gave erroneous advice that his sentence
would be much less than ten years. See docket 10, Exh. 20. Johnson stands for the proposition that a
defendant’s negative response to the trial court’s question of whether he was promised anything to induce
the plea, does not conclusively refute a claim for ineffective assistance of counsel based on erroneous
advice.
22

See docket 10, Exh. 22.

23

See docket 10, Exh. 28.

24

See docket 10, Exh. 16.

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ten-year offer without permission from Ramirez.25 Ramirez now seeks the ten-year
sentence rather than his current sentence.
LEGAL STANDARDS
Standard Under the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA)
The AEDPA governs Ramirez’ petition. Wilcox v. Florida Dep’t of Corr., 158
F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840, 121 S.Ct. 103, 148
L.Ed.2d 62 (2000). Section 2254(d) creates a highly deferential standard which does not
permit the granting of federal habeas relief with respect to a claim adjudicated on the
merits in state court unless either (1) the “contrary to” or “unreasonable application”
clauses of subsection (d)(1) are met or (2) the state court decision was based on “an
unreasonable determination of the facts in light of the evidence presented” under
subsection (d)(2). See Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000) (interpreting the deferential standard); Parker v. Head, 244 F.3d 831,
835-36 (11th Cir. 2001) (explaining the standard and noting the presumption of
correctness attributed to a factual issue decided by state court). “The AEDPA prevents
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,
130 S.Ct. 1855, 1866, 176 L.Ed.2d 678 (2010).26
25

See docket 10, Exh. 19.

26

See also Cullen v. Pinholster, ___ U.S. ___ , 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011)
(stating section 2254(d) creates “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

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Standard for Ineffective Assistance of Counsel
A petition claiming ineffective assistance of counsel must meet the two-part
standard for counsel’s performance established by Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a prima facie claim of
ineffective assistance of counsel, the defendant must show that counsel’s performance
was deficient and that the deficient performance prejudiced the defense. Strickland, 466
U.S. at 687-88. Deficient performance is performance which is objectively unreasonable
under prevailing professional norms. Id. at 688.
The Sixth Amendment right to effective assistance of counsel extends to plea
negotiations. Missouri v. Frye, 566 U.S. ___, 132 S.Ct. 1399, 1404-08, 182 L.Ed.2d 379
(2012); Lafler v. Cooper, 566 U.S. ___, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012).
The Supreme Court held in Hill27 that the two-part Strickland test applies to challenges to
guilty pleas based on ineffective assistance of counsel. See United States v. Pease, 240
F.3d 938, 941 (11th Cir. 2001) (citing Hill). In the circumstance of challenging a plea of
guilty or nolo contendere,28 the inquiry is modified and the defendant “must show the
outcome of the plea process would have been different with competent advice.” Lafler,
132 S.Ct. at 1384-85, citing Frye; see also Hill. To establish the prejudice prong of

omitted).
27

Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

28

“A plea of nolo contendere has the same legal effect in a criminal proceeding as a guilty plea.”
Lockley v. McNeil, No. 5:10-cv-64-Oc-29TBS, 2013 WL 5289609, at *4 (M.D. Fla. Sept. 19, 2013). A
nolo contendere plea stands on equal footing with a guilty plea. North Carolina v. Alford, 400 U.S. 25,
35-36, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

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Strickland, “a defendant must demonstrate a reasonable probability that: (1) he would
have accepted a plea offer but for counsel’s ineffective assistance; (2) the plea would
have been entered without the prosecution canceling it or the trial court refusing to accept
it; and (3) the plea would have resulted in a lesser charge or a lower sentence.” Frank v.
United States, No. 12-13930, 2013 WL 3287178, at *2 (11th Cir. Jul. 1, 2013) (citing
Frye, 132 S.Ct. at 1409 and Lafler, 132 S.Ct. at 1384-85) (unpublished opinion). If either
of the two prongs – constitutionally deficient performance or prejudice – is established, it
is unnecessary to address the remaining prong. Bishop v. Warden, GDCP, 726 F.3d 1243,
1254 (11th Cir. 2013) (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)).
ANALYSIS
The state trial court’s denial of Petitioner’s claim that his counsel rendered
ineffective assistance in giving him incorrect advice regarding the plea is supported by
the record. Although the testimony is contradictory, the state trial court did not find
Ramirez’ testimony credible. The record shows that there was no firm offer of a ten-year
sentence and no promise of a youthful offender sentence, which is no more than six years.
The trial court made it clear that Ramirez would be entering an open plea with no offers
outstanding. Based on the prejudice prong of the Strickland standard, the petition should
be denied.
Offers
As to any ten-year offer, the transcripts from the plea, sentencing, and postconviction evidentiary hearings reveal that no firm offer ever existed from the state or

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anyone else. At the outset of the change of plea,29 trial counsel stated that Ramirez
wanted to plead to only the violation of probation, Case No. 5250, but not to the pending
lewd and lascivious battery on a child, Case No. 588, because “we haven’t been able to
reach any kind of a disposition.”30 The ensuing colloquy between trial counsel and the
assistant state attorney confirms that no disposition had been reached:
[Trial Counsel]:

The only thing was – I mean, on the pending
case [lewd and lascivious], I was looking for
a cap.

[State]:

She’s saying he can have ten years or
nothing. That’s it. No cap.

[Trial Counsel]:

Ten years or that’s it. And probably going to
ask for youthful offender at some point on
this. Ask for a downward departure or
something like that.31

While the identity of the “she” in the statement by the prosecution is unclear, the absence
of a firm ten-year offer is apparent. After this conversation, the court stated, “[i]f he
wants to plea, he can plea and I’ll remand him and we’ll see what happens on the other
case.”32 The court made it clear that he would not agree to a departure sentence nor
would he release Ramirez on bond.33 After a brief recess for the parties to talk, trial
counsel announced that Ramirez would enter a plea of no contest on both Case No. 588

29

See docket 10, Exh. 7 (“Bond-reduction hearing/change of plea”).

30

See docket 10, Exh. 7, p. 3.

31

See docket 10, Exh. 7, p. 6.

32

See docket 10, Exh. 7, p. 6.

33

See docket 10, Exh. 7, pp. 6-7.

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and Case No. 5250.34 Regarding any prior offer, the state noted that “any offer that was
ever given is off the table and it’s, basically, fair game.”35
At the post-conviction evidentiary hearing, Ramirez’ mother and his grandmother
testified that at the recess during the plea hearing trial counsel told them that he had
turned down the state’s offer of ten years in prison because he was going to try to get
youthful offender status.36 Ramirez’ aunt did not specifically remember the ten-year offer
but remembered that trial counsel was trying to obtain for him youthful offender status
that carried no more than six years.37
Trial counsel testified at the evidentiary hearing that he and the assistant state
attorney engaged in plea negotiations, but the state attorney’s office’s policy was “not to
make hard offers.”38 He stated that the state attorney’s office intimated that they would
accept a ten-year offer.39 Prior to the plea hearing, Ramirez rejected any ten-year
sentence.40 Ramirez told trial counsel that he was not interested in going to prison for ten
years but was interested in an open plea because a chance existed for youthful offender

34

See docket 10, Exh. 7, p. 9.

35

See docket 10, Exh. 7, p. 10.

36

See docket 10, Exh. 21, pp. 69, 73 &76-78.

37

See docket 10, Exh. 21, pp. 84-86.

38

See docket 10, Exh. 21, p. 92.

39

See docket 10, Exh. 21, pp. 92 & 94.

40

See docket 10, Exh. 21, p. 94.

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status.41 Trial counsel never told Ramirez, contrary to Ramirez’ claim, that Ramirez had
the option of accepting a ten-year sentence if the judge refused to sentence him as a
youthful offender.42 Trial counsel denied promising Ramirez that Ramirez would receive
a youthful offender sentence.43
At the evidentiary hearing, Ramirez testified that he knew nothing about the tenyear offer from the state until trial counsel told Ramirez that on Ramirez’ behalf trial
counsel had rejected the offer because trial counsel thought he could get a better deal.44
Ramirez claimed that he thought he would receive youthful offender status and no more
than six years because he assumed trial counsel would not have turned down the ten-year
offer absent the judge’s and the state’s agreement to youthful offender status.45 Ramirez
admitted that he knew he might not receive a youthful offender sentence because the
court had ordered a pre-sentence investigation.46 Ramirez knew that trial counsel
intended to put on witnesses for mitigation, which was unnecessary if it was already
decided that Ramirez would receive a youthful offender sentence.47

41

See docket 10, Exh. 21, pp. 93-94.

42

See docket 10, Exh. 21, p. 98.

43

See docket 10, Exh. 21, p. 98.

44

See docket 10, Exh. 21, pp. 19, 28.

45

See docket 10, Exh. 21, p. 20.

46

See docket 10, Exh. 21, p. 45.

47

See docket 10, Exh. 21, pp. 43-45.

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The transcripts establish that the prosecution never offered – and trial counsel
never conveyed to Ramirez – a firm offer of ten years. Therefore, the Strickland
prejudice prong remains unsatisfied. Additionally, no plea could have been entered
without extinguishing the outstanding offer, again leaving Strickland unsatisfied. The
trial court credited trial counsel’s testimony that trial counsel conveyed to Ramirez only
the potential for a plea of ten years (after all, this state attorney makes no offer but only
receives offers) and that Ramirez pre-emptively rejected any notion of agreeing to serve a
ten-year sentence. Instead, Ramirez wanted trial counsel to try to obtain a youthful
offender sentence of no more than six years. While trial counsel advised Ramirez that it
was possible to receive a youthful offender sentence of six years or less, trial counsel did
not lead Ramirez to believe that a youthful offender sentence was likely. The trial court’s
finding trial counsel’s testimony more credible than the petitioner’s commands a
presumption of correctness. See Baldwin v. Johnson, 152 F.3d 1304, 1316 & 1320 (11th
Cir. 1998).
Open Plea
After informing Ramirez that the maximum on each count of the lewd and
lascivious was fifteen years in prison, the judge asked him, “[I]s it your intention today to
enter this no-contest plea understanding that I don’t know what your sentence might be
and you don’t know what your sentence might be at this time?”48 He answered, “Yes.”49

48

See docket 10, Exh. 7, p. 13.

49

See docket 10, Exh. 7, p. 14.

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The judge read all of the rights Ramirez would be giving up by entering the plea,
including asking him whether he was satisfied with the representation of his counsel, to
which he responded, “Yes.”50 When asked if any promises regarding the sentence had
been made, Ramirez answered, “No.”51 The judge informed him that the maximum
sentence on the lewd and lascivious batteries was thirty years in prison and the maximum
on the violations of probation, burglary and grand theft, was ten years in prison.52
Ramirez admitted that the judge informed him that the maximum sentence was
forty years in total.53 He also admitted remembering that the prosecution informed the
judge that the state was seeking the maximum.54 Ramirez stated that he did not question
the judge about a youthful offender departure because he thought the judge was reciting a
litany of “legal procedure.”55 He thought the witnesses had to be presented in mitigation
so that he would not receive all six years in prison as a youthful offender.
Ramirez testified that, when he responded affirmatively to the judge’s questions
about whether Ramirez understood that his sentence was not yet determined, Ramirez
thought that the sentence would be some combination of incarceration and house arrest

50

See docket 10, Exh. 7, pp. 14-18.

51

See docket 10, Exh. 7, p. 17.

52

See docket 10, Exh. 7, p. 21. He scored to a guidelines low end of 15.9 years in prison, with
the high end at thirty years. See docket 10, Exh. 7, p. 22; Exh. 8, p. 40 & 76.
53

See docket 10, Exh. 21, pp. 39-40.

54

See docket 10, Exh. 21, p. 39.

55

See docket 10, Exh. 21, pp. 39-40.

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within a six-year time limit. In other words, Ramirez claims his testimony meant that he
did not know what sentence he would receive inside a six-year youthful offender
sentence.56 Therefore, according to Ramirez, when the prosecutor announced that the
ten-year plea was “off the table,” Ramirez did not worry because trial counsel told him
the ten-year offer would still be valid if the judge did not sentence him as a youthful
offender.57 Ramirez testified he would have accepted a ten-year offer had trial counsel
explained the difference between pleading to ten years versus pleading open to the
court.58 On the other hand, Ramirez also testified that he never had the opportunity to
reject the ten-year offer because his counsel told him it had already been rejected on his
behalf.
Trial counsel testified that he fully explained the risks involved in entering an open
plea.59 Trial counsel states that he made it clear to Ramirez that the ten-year sentence was
no longer valid if he entered an open plea.60 Ramirez told trial counsel that he
unequivocally wanted to reject the ten-year sentence and to plead open to the court,
knowing the risk involved in taking a chance for a youthful offender sentence.61

56

See docket 10, Exh. 21, pp. 24-27.

57

See docket 10, Exh. 21, pp. 35-36.

58

See docket 10, Exh. 21, pp. 19, 28-29.

59

See docket 10, Exh. 21, pp. 93-96.

60

See docket 10, Exh. 21, p. 98.

61

See docket 10, Exh. 21, pp. 100, 108 & 112.

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Trial counsel testified that he explained what “pleading open” meant, and the court
questioned Ramirez to confirm that Ramirez understood the consequences and risk of
pleading open. The trial court credited trial counsel’s testimony (1) that he discussed
with Ramirez a potential ten-year sentence, which Ramirez rejected before the plea
hearing began and (2) that no six-year youthful offender sentence was ever promised.
Because no plea offer for ten years existed at the time Ramirez entered his open plea, as
Ramirez admitted he knew, no lower sentence would have resulted had he not entered the
open plea. Aptly describing Ramirez’ plight, the trial court observed, “[Pleading open is]
a risk, a chance, a wager62
The petition for writ of habeas corpus (Dkt. 1) is denied. The clerk is directed to
enter judgment in favor of the respondent, to terminate any pending motion, and close the
case.
The court declines to issue a certificate of appealability because Ramirez has failed
to make a substantial showing of the denial of a constitutional right as required by 28
U.S.C. § 2253(c)(2). Nor will the court authorize Ramirez to proceed on appeal in forma
pauperis because such an appeal would not be taken in good faith. See 28 U.S.C.
§ 1915(a)(3).
ORDERED in Tampa, Florida, on October 29, 2013.

62

See docket 10, Exh. 21, p. 136.

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