Gagne v. Secretary, Department of Corrections et al
Filing
11
OPINION AND ORDER. Gagne's petition for writ of habeas corpus 1 is DENIED. The Clerk is directed to enter judgment against Gagne and to close this case. It is further ORDERED that Gagne is not entitled to a certificate of appealability and he is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 3/17/2017. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RAYMOND GAGNE,
Petitioner,
v.
Case No. 8:14-cv-554-T-36TBM
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
______________________________/
ORDER
Petitioner Raymond Gagne, an inmate in the Florida Department of Corrections
proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt.
1). He challenges his convictions entered in 2005 by the Circuit Court for the Thirteenth
Judicial Circuit, Hillsborough County, Florida. Respondent filed a response (Dkt. 7), which
concedes the petition’s timeliness. Gagne did not file a reply. Upon review, the petition
must be denied.
PROCEDURAL HISTORY
Gagne challenges his convictions in four cases. He faced a total of four counts of
robbery with a firearm, one count of armed burglary of a structure, three counts of dealing
in stolen property, two counts of giving false information to a pawn broker, one count of
burglary of a structure involving assault or battery, and one count of throwing a deadly
missile into a building.
Gagne entered open pleas of guilty to these offenses. The court sentenced him to
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an overall term of thirty years in prison, followed by ten years of probation. (Dkt. 7, Ex. 4.)1
The court imposed ten-year minimum mandatory terms under § 775.087(2)(a)(1), Fla. Stat.,
on the charges of robbery with a firearm and armed burglary. (Dkt. 7, Ex. 4, pp. 37, 40,
170, 227.)2
The state appellate court per curiam affirmed the judgments and sentences. (Dkt.
9, Ex. 8.) Gagne filed a motion for postconviction relief under Florida Rule of Criminal
Procedure 3.850 and a motion to amend. (Dkt. 9, Exs. 9, 10.) The state court denied one
of Gagne’s claims and directed the State to respond to other claims. (Dkt. 9, Ex. 11.)
Upon receiving the State’s response (Dkt. 9, Ex. 12) and Gagne’s reply (Dkt. 9, Ex. 13), the
state court required another response of the State (Dkt. 9, Ex. 14). Subsequently, the State
court summarily denied a number of Gagne’s claims, and conducted an evidentiary hearing
on two claims. (Dkt. 9, Exs. 16, 17.) Following the evidentiary hearing, the state court
denied the rest of Gagne’s claims. (Dkt. 9, Ex. 18.) The state appellate court per curiam
affirmed the denial. (Dkt. 9, Ex. 21.)
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). Habeas relief can only be granted if a petitioner is in custody
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
1
Gagne’s judgment and sentence for count three of case number 04-13964, burglary of a structure
with assault or battery, was later vacated. (Dkt. 9, Ex. 5.)
2
Section 775.087(2)(a)(1), Fla. Stat., requires a minimum term of ten years in prison if an offender
commits one of the offenses enumerated in that section, which include robbery and burglary, and actually
possessed a firearm or destructive device during the commission of the offense.
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§ 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court
review of a state court adjudication, states:
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, 412-13 (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 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, 694 (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
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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, 562 U.S. 86, 103 (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 [the federal court is] 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, 529
U.S. at 412.
The purpose of federal review is not to re-try the 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.” Cone, 535 U.S. at 693. In other words, “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
(2010). See also Cullen v. Pinholster, 563 U.S. 170, 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 affirmed
the denial of Gagne’s postconviction motion. This decision warrants deference under
§ 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.
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906 (2003). See also Richter, 562 U.S. at 99 (“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.”). Review of the state court decision is limited to the
record that was before the state court. Pinholster, 131 S. Ct. at 1398.
Gagne 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).
INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance of counsel are analyzed under the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate
both deficient performance by counsel and resulting prejudice. Demonstrating deficient
performance “requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at
687. Deficient performance is established if, “in light of all the circumstances, the identified
acts or omissions [of counsel] were outside the wide range of professionally competent
assistance.” Id. at 690. However, “counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. Additionally, “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.
Gagne must demonstrate that counsel’s alleged errors prejudiced the defense
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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
judgment.” Id. at 691-92. To show prejudice, a petitioner 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.” Id. at 694. When the case involves a plea, the prejudice
inquiry focuses on whether counsel’s deficient performance “affected the outcome of the
plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant
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).
A petitioner cannot meet his burden merely by showing that counsel’s choices were
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, 1220-21 (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. But, the 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)).
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Sustaining a claim of ineffective assistance of counsel on federal habeas review 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, 562 U.S.
at 105 (citations omitted). See also Pinholster, 131 S. Ct. at 1410 (a petitioner must
overcome the “‘doubly deferential’ standard of Strickland and AEDPA.”).
If a claim of ineffective assistance of counsel can be resolved through one of the
Strickland test’s two prongs, the other prong need not be considered. 466 U.S. at 697
(“[T]here 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 v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998) (“When applying Strickland, we
are free to dispose of ineffectiveness claims on either of its two grounds.”).
DISCUSSION
With respect to his counts involving a firearm,3 Gagne asserts that he merely
possessed a BB gun and did not qualify for the ten year minimum mandatory term for
possession of a firearm. He argues that counsel was ineffective for failing to file a motion
to suppress on this basis.
Gagne further asserts that counsel was aware he only
possessed a BB gun and therefore knew of a viable defense. Gagne states that counsel
misadvised him to enter the plea, and that had counsel informed him of this defense, he
would have insisted on going to trial.
As a preliminary matter, the record supports a finding that Gagne’s pleas were
3
In his postconviction motion, Gagne raised this claim with respect to case number 04-13966, which
involved two counts of robbery with a firearm. (Dkt. 9, Ex. 9, p. 43; Ex. 10, p. 361.) However, Gagne’s three
cases that involved a firearm were addressed in the testimony at the evidentiary hearing that the state court
cited and relied upon in its order. The Court construes the state court’s decision as involving these three
cases.
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voluntarily entered. The record reflects the following at the change of plea hearing:
THE COURT: Okay. Next you have several cases with new offenses
pending as follows: In Case 04-13966, you’re charged with two counts of
Robbery with a Firearm. Each is a first-degree felony punishable by Life in
prison. Does 10-20-LIFE apply as to Gagne?
[STATE]: Judge, on both cases 10-20-LIFE would apply to Mr. Gagne, yes,
sir.
THE COURT: Okay. This - - these offenses come under 10-20-LIFE, which
means that you score a minimum mandatory of 10 years in prison up to a
maximum of Life in Florida State Prison.
In Case 04-13975 you’re charged with one count of Throwing a Deadly
Missile into a building, that carries a penalty of up to 15 years in prison.
In Case 04-13965, you’re charged with one count of Robbery with a
Firearm, that carries - - that’s a first-degree felony which carries a
punishment penalty of up to Life in Florida State Prison. It likewise carries
a ten-year minimum mandatory. Count 2 charges you with Dealing in Stolen
Property, that carries up to 15 years in prison. Count 3 charges you with
Giving False Information to a Pawn Broker, that carries up to five years in
prison. Count 4 charges you with Dealing in Stolen Property, that carries up
to 15 years in prison. And Count 5 charges you, again, with False
Information to a Pawnbroker, that carries up to five years in prison.
In Case 04-13964, you’re charged with one count - - Count 1,
Robbery, that carries up to Life in Florida State Prison and it carries a
mandatory ten-year, day-for-day. Count 2 charges you with Armed Burglary
of a Structure. Is that - -is that a 10-20-LIFE, Armed Burglary?
[STATE]: Judge, the Armed Burglary on that particular case, yes, sir - you’re talking Count 2 on 964, sir?
THE COURT: Yes, sir.
[STATE]:
Yes, sir, it is.
THE COURT: All right. That likewise carries a mandatory ten years in prison
day-for-day. Count 3 is - - charges Burglary of a Structure involving Assault
or Battery, that carries up to Life in Florida State Prison. And Count 4
charges you with Dealing in Stolen Property, that carries up to 15 years in
Florida State Prison.
Now, your cases are set for jury trial Monday also, but your lawyer
tells me that you’ve made a decision to plead guilty to each of these
offenses; is that correct?
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THE DEFENDANT: Yes, sir.
THE COURT: And these are what we call open pleas, which means there’s
no deal between you and the State as to what sentence I will impose, is that
your understanding?
THE DEFENDANT: Yes, sir.
THE COURT: Now, he was over 21 at the times of these crimes; is that
correct?
[DEFENSE COUNSEL]: Under 21, Judge.
...
THE COURT: So he does qualify as a Youthful Offender.
[DEFENSE COUNSEL]: Yes, he does, Judge.
[STATE]: Potentially, sir.
THE COURT: Potentially.
[STATE]: Yes, sir.
THE COURT: So you do qualify for potential Youthful Offender sentencing,
which means that if I do that, the maximum sentence I could impose would
be six years; however, there’s no assurance or guarantee that I would
sentence you as a Youthful Offender. If I sentence you as an adult so to
speak not as a Youthful Offender, then I’m constrained to - - the minimum
sentence I could impose would be ten years day-for-day; and, of course, I
could sentence you to as much as Life. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that you don’t have to plead guilty, but that
you have the absolute right to plead not guilty and to have a separate jury
trial for each case number next week. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
THE COURT: If you plead guilty, you give up your right to have each of those
jury trials and you give up any right to appeal. Is this what you want to do,
plead guilty?
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THE DEFENDANT: Yes, sir.
THE COURT: If these cases were to go to jury trial, you and your lawyer
together at each of those trials would have the right to confront your accusers
in court. You would have the right to summon witnesses to come into court
to testify on your behalf; and if you wished to do so, you could be a witness
yourself at your trials. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
THE COURT: If you plead guilty, you’re going to give up all of those rights.
Are you satisfied with the advice given to you by your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: As you stand here now, are you under the influence of any
drugs, medicine or alcohol?
THE DEFENDANT: No, sir.
...
THE COURT: I’ll find that there are sufficient facts, that your pleas are
knowingly and voluntarily entered and I will accept your pleas.
(Dkt. 9, Ex. 1, pp. 387-94.)
The standard for determining the validity of a guilty plea is “whether the plea
represents a voluntary and intelligent choice among the alternative courses of action open
to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). “A reviewing federal
court may set aside a state court guilty plea only for failure to satisfy due process: ‘If a
defendant understands the charges against him, understands the consequences of a guilty
plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea
. . . will be upheld on federal review.’” Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir.
1991) (quoting Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980)).
Although a defendant’s statements during a plea colloquy are not insurmountable,
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“the representations of the defendant [and] his lawyer [at a plea hearing] . . . 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, 73-74 (1977). “[W]hen a
defendant makes statements under oath at a plea colloquy, he bears a heavy burden to
show his statements were false.’” United States v. Rogers, 848 F.2d 166, 168 (11th Cir.
1988).
The trial court reviewed all of the charges, possible maximum penalties, and
minimum mandatory penalties. The colloquy shows that Gagne knew he was pleading
open to charges carrying a possible life sentence, with no guarantee of the court imposing
any particular sentence. Additionally, the record supports the conclusion that Gagne
understood the rights he waived by entering his pleas and that he wanted to enter the
pleas. He does not show that his statements at the change of plea hearing were false.
Thus, the record reflects that Gagne knowingly and voluntarily entered his pleas.
Generally, entry of a voluntary plea forecloses allegations of constitutional violations
that occurred prior to the plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“[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.”); Lefkowitz v. Newsome, 420 U.S. 283, 288 (1975) (“[T]he general rule [is]
that a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional
challenges to the pretrial proceedings.”).
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A plea does not bar review of a claim of ineffective assistance of counsel to the
extent the alleged ineffectiveness bears upon the voluntariness of the plea itself. See Hill,
474 U.S. at 56-57 (defendant who enters guilty plea upon advice of counsel can only attack
the voluntary nature of the plea by showing that counsel’s advice was not within the range
of competence demanded of attorneys); Wilson v. United States, 962 F.2d 996, 997 (11th
Cir. 1992) (“A defendant who enters a plea of guilty waives all nonjurisdictional challenges
to the constitutionality of the conviction, and only an attack on the voluntary and knowing
nature of the plea can be sustained.”); Stano, 921 F.2d at 1150-51 (“The Court allows only
challenges to the voluntary and intelligent entry of the plea if a convicted defendant can
prove ‘serious derelictions’ in his counsel’s advice regarding the plea.”) (citation omitted).
In Ground One, Gagne does not challenge the voluntariness of his plea. His claim
is therefore barred by Tollett. Even liberally construing his claim as involving the voluntary
nature of the plea, however, Gagne shows no entitlement to relief.
Gagne testified at the evidentiary hearing to his understanding that “under the
Florida Statutes, a BB gun is not considered a firearm.” (Dkt. 9, Ex. 17, p. 577.) He
testified that pleading to the offenses as charged exposed him to a possible life sentence
and in fact resulted in ten year minimum mandatory terms for the firearm charges. (Id.)
Gagne further testified that, if he had known of the possibility of having the charges
reduced, he would have gone to trial. (Id.)
Counsel testified with respect to all three of Gagne’s cases that involved the
minimum mandatory firearm sentence. He told the court that Gagne’s cases were “difficult”
for the defense, and that there was no offer from the State. (Id., p. 584.) First, counsel
described Gagne’s case involving offenses at a jewelry store, for which Gagne was
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charged in relevant part with robbery with a firearm and armed burglary of a structure. He
testified that the evidence against Gagne included fingerprints, the store clerk’s “one
hundred percent positive ID in a photopack of Mr. Gagne,” and the fact that Gagne pawned
items taken from the store. (Id., pp. 584-85.) Counsel’s cross-examination suggests that
a BB gun may have initially been used. (Id., pp. 588-89.) But counsel testified “[t]he
evidence was that Mr. Gagne jumped over the counter, removed a .38 caliber pistol from
the back pocket of the clerk, who had become suspicious and armed herself, so now he’s
armed with a weapon.” (Id., p. 584.) Therefore, counsel testified, he believed the issue of
a BB gun “goes out the window in that case.” (Id., p. 589.) Counsel further testified that
he believed the elements of burglary were established once Gagne jumped over the
counter into an area not open to the public. (Id., pp. 584-85.)4
Counsel also addressed Gagne’s case involving a robbery of two women outside of
a WalMart store, which appears to have involved two counts of robbery with a firearm.
Counsel explained that evidence included the store’s surveillance footage, which showed
the women having a conversation with several men and showed Gagne, and “a hundred
4
Burglary is defined in relevant part as:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense
therein, unless the premises are at the time open to the public or the defendant is licensed
or invited to enter; or
2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or
conveyance:
...
b. After permission to remain therein has been withdrawn, with the intent to commit an
offense therein; or
c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.
§ 810.02(1)(b), Fla. Stat.
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percent ID, photopack.” (Id., p. 585, 586.) Counsel testified that one of the victims testified
in her deposition that the gun was cocked and placed to the back of her head. (Id., pp.
585-86.) Counsel stated that he was not familiar with any BB gun that can be cocked. (Id.,
p. 586.)
Counsel testified that in the third case, which appears to have involved one count
of robbery with a firearm, the victim described “the intruders that came into his house as
being armed with a, he described it as a silver semi-automatic with black handles.” (Id.)
Counsel testified that when the home of Gagne’s co-defendant’s grandparents was
searched, “they recovered a black pellet gun that was in the shape of a semi-automatic, but
that was a black gun, not a silver gun. So there was some evidence in that case to support
the fact that a firearm was present there as well.” (Id.)
Accordingly, counsel testified, “there wasn’t a motion to suppress in my opinion,” and
“[w]hether or not a firearm is present was a question of fact.” (Id., p. 587.) Counsel further
testified that he reviewed with Gagne all the evidence and depositions and discussed
available options. (Id.) On cross-examination, counsel agreed that a potential strategy
would have been to “only plead [Gagne] to robbery with a deadly weapon, or robberyweapon.” (Id., p. 589.) But counsel testified that in this situation the State could have
chosen to proceed to trial on offenses as charged, and counsel thought “trial didn’t seem
to be a viable option, in my opinion in this case, because the evidence was so bad.” (Id.)
Thus, counsel determined that it was “a better strategy to have the client admit his guilt, try
to show some remorse, put mitigation in, and during sentencing, and ask for leniency to the
Judge. That seemed to be the better course of action to me.” (Id.)
The state court denied this claim after the evidentiary hearing:
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After reviewing the allegations, the testimony, evidence, and
arguments presented at the March 7, 2012 evidentiary hearing, the court
files, and the record, the Court finds “[w]hether a BB gun which resembles a
9 mm semi-automatic handgun, according to witnesses, can be considered
a deadly weapon when used in a bank robbery, is a question of fact for the
jury.” June v. State, 717 So.2d 191, 191 (Fla. 5th DCA 1998). Therefore, the
Court finds whether the gun used in this case was a firearm or a BB gun is
a question of fact for the jury.
Additionally, the Court finds [counsel]’s testimony to be more credible
than that of Defendant. Therefore, the Court finds based on [counsel]’s
testimony he did not believe there was a basis for a motion to suppress
because whether the firearm was really a BB gun was a question of fact for
the jury and not the subject of a motion to suppress. Consequently, the
Court finds Defendant cannot demonstrate that [counsel] acted deficiently
when there was no basis to file the alleged motion to suppress as the
question of whether the firearm was really a BB gun was a question of fact
for the jury and not the subject of a motion to suppress. As such, no relief
is warranted upon the allegations in claim one.
(Dkt. 9, Ex. 18, p. 511) (emphasis in original).
Gagne fails to show entitlement to relief on this ground. The state court found
counsel’s testimony to be credible. This determination is presumed to be correct. Baldwin
v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) (“We must accept the state court’s
credibility determination and thus credit [the attorney’s] testimony over [the petitioner’s].”),
cert. denied, 526 U.S. 1047 (1999); Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993)
(“Findings by the state court concerning historical facts and assessments of witness
credibility are . . . entitled to the same presumption accorded findings of fact under 28
U.S.C. § 2254(d).”), cert. denied, 513 U.S. 1161 (1995). Gagne does not overcome the
presumption of correctness.
Moreover, the state court’s determination is supported by the record. Counsel’s
testimony contains no indication that he thought a motion to suppress would be viable;
rather, he believed that whether Gagne possessed a firearm was a question of fact for the
Page 15 of 24
jury. Accordingly, the state court determined that counsel was not ineffective for failing to
file a motion to suppress when there was no basis to do so. In addition, counsel thought
the best strategy given the facts of Gagne’s cases was to enter a plea and seek leniency
at sentencing.5 Given the circumstances with which counsel was faced at the time, Gagne
fails to show that this tactical choice was unreasonable. See Putman v. Head, 268 F.3d
1223, 1244 (11th Cir. 2001) (“Moreover, ‘[t]he relevant question is not whether counsel’s
choices were strategic, but whether they were reasonable.’”) (quoting Roe v. Flores-Ortega,
528 U.S. 470, 481 (2000)). Gagne fails to establish “‘that no competent counsel would
have taken the action that his counsel did take.’” Id. (quoting Chandler v. United States,
218 F.3d 1305, 1315 (11th Cir. 2000)).
Gagne does not show that counsel was ineffective for the reasons alleged in Ground
One. He fails to show that the state court’s decision was an unreasonable application of
Strickland or was based on an unreasonable determination of the facts. Ground One
warrants no relief.
Ground Two
Ground Two concerns the charge of armed burglary of a structure in case number
04-13964, which occurred at a jewelry store. It appears from the record that Gagne jumped
over the store counter during the offense. Gagne asserts that counsel was ineffective for
5
The record reflects that at the sentencing hearing, counsel submitted a forensic psychological
evaluation of Gagne, three previous evaluations of Gagne, newspaper articles concerning physical abuse at
a youth detention center in New Hampshire where Gagne previously was located, and letters from Gagne’s
aunt and mother. (Dkt. 9, Ex. 3, pp. 266-68.) Counsel also called Gagne’s mother, who testified about
numerous familial issues, as well as Gagne’s diagnoses, involvement in the juvenile justice system, possible
past abuse, and drug use. (Id., pp. 269-85.) Counsel submitted letters from Gagne apologizing to the victims.
(Id., p. 285.) Gagne also spoke to the court and apologized. (Id., pp. 310-11.) Finally, counsel asked for
youthful offender sentencing, or if the court found such a sentence to be inappropriate, for leniency under the
sentencing guidelines. (Id., p. 309.)
Page 16 of 24
not adequately investigating the offense of armed burglary “and the applicable and viable
defense of ‘consent’” because he was permitted to be in the store. (Dkt. 1, p. 7.) Gagne
argues that counsel’s ineffective assistance in failing to investigate resulted in a due
process violation because he was “convicted of a crime that did not occur.” (Dkt. 1, p. 8.)
Gagne raises no specific challenge to the voluntariness of his plea. His voluntary
plea forecloses allegations of constitutional violations prior to the entry of the plea. See
Tollett, 411 U.S. at 267. Even liberally interpreting the claim as involving the voluntary
nature of the plea, however, Gagne does not show entitlement to relief. The state court
conducted an evidentiary hearing on Gagne’s claim of ineffective assistance of counsel,
after which it denied this claim:
At the hearing, Defendant testified earlier that day, the victim granted
him entry into the jewelry store in Brandon. He admitted he later entered the
jewelry store again whereby she pressed the buzzer to let him in. Therefore,
he admitted the consent factor should have reduced the charge against him.
He testified, “I would have went to trial, because if, an element of a burglary
is a forceful entry, how can I be found guilty for burglary? So therefore, I feel
like maybe the charge would have been dropped or dismissed, or I could
have beaten it - - .. - - at trial.” He further testified, “[t]here’s a possibility I
could have been found not guilty... Or guilty of a lesser included offense.”
On cross-examination, when asked about whether the jewelry store
clerk’s alleged consent to Defendant’s entrance might have mitigated or
reduced the charge, [counsel] responded as follows:
[COUNSEL]: I don’t believe so. I’ve researched the case law.
I had a case where a, one of my clients entered a liquor store,
which is open to the public. Once he jumped behind the
counter with a gun, stuck a gun to the clerk’s head, the case
law says he’s now entered a place which is not open to the
public, even though the store itself was, and it meets the
elements for a burglary. So in my opinion, whether he was
buzzed in or walked into a public place, once you get behind
the counter, the case law supports the fact that the elements
of a burglary have been met, if there’s an intent to commit a
crime.
Page 17 of 24
After reviewing the allegations, the testimony, evidence, and
arguments presented at the March 7, 2012 evidentiary hearing, the court
files, and the record, the Court finds “if a defendant can establish that the
premises were open to the public, then this is a complete defense.” Miller v.
State, 733 So.2d 955, 957 (Fla. 1998); see Harrell v. State, 765 So.2d 962,
963 (Fla. 3d DCA 2000). However, the Court finds “this rule is subject to the
qualification that if in committing the crime, the defendant entered a portion
of the premises which was not open to the public (which can include the area
behind the counter), then a burglary has been committed.” Johnson v. State,
3 So.3d 412, 415 (Fla. 3d DCA 2009); see also Johnson v. State, 786 So.2d
1162, 1163 (Fla. 2001).
The Court further finds [counsel]’s testimony to be more credible than
that of Defendant. Therefore, the Court finds based on [counsel]’s testimony,
although Defendant may have initially had the jewelry store clerk’s consent
to enter the store, once Defendant entered the area behind the counter, a
portion of the premises not open to the public, Defendant committed a
burglary. Consequently, the Court finds Defendant cannot demonstrate that
[counsel] acted deficiently when [counsel] investigated the alleged offense
and the elements of the alleged offense, and found consent was not an
affirmative defense available to Defendant based on the fact that he entered
the non-public area behind the counter. As such, no relief is warranted
upon the allegations in claim two.
(Dkt. 9, Ex. 18, pp. 512-14) (court’s record citations omitted) (emphasis in original).
Gagne does not show entitlement to relief. Again, the state court’s determination
that counsel’s testimony was more credible is given deference. Baldwin, 152 F.3d at 1316;
Devier, 3 F.3d at 1456. The record reflects that counsel believed the proposed defense
was not viable based on the facts of this case because Gagne entered an area of the store
not open to the public. The state court found that, in accordance with state law interpreting
the elements of burglary, counsel was not ineffective for not pursuing such a defense. This
determination must be given deference in this federal habeas petition. “[A] state court’s
interpretation of state law . . . binds a federal court sitting in habeas corpus.” Bradshaw v.
Richey, 546 U.S. 74, 76 (2005). See Will v. Sec’y, Dep’t of Corr.278 Fed. App’x 902, 908
(11th Cir. 2008) (“Although an ineffective-assistance-of-counsel claim is a federal
Page 18 of 24
constitutional claim, which we consider in light of the clearly established rules of Strickland,
when ‘the validity of the claim that [counsel] failed to assert is clearly a question of state
law, . . . we must defer to the state’s construction of its own law.’”) (citing Alvord v.
Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)). Furthermore, counsel cannot be
deemed ineffective for failing to file a meritless claim. See Brownlee v. Haley, 306 F.3d
1043, 1066 (11th Cir.2002) (counsel was not ineffective for failing to raise claims that
clearly lacked merit).
Gagne does not establish that the state court unreasonably applied Strickland or
unreasonably determined the facts in rejecting his claim. He is not entitled to relief on
Ground Two.
Grounds Three, Four, Five, and Six
Gagne presents claims of ineffective assistance of trial counsel and illegal sentence
in Grounds Three, Four, Five, and Six. In Ground Three, he states that counsel was
ineffective for failing to negotiate a plea agreement with the State and misadvising him with
respect to the sentence he would receive upon entering an open plea. In Ground Four,
Gagne asserts that his sentence is illegal because it exceeds the sentencing guidelines
without a written reason for departure by the state court. In Ground Five, Gagne contends
that counsel was ineffective for failing to file a petition for writ of prohibition “to stay records
of his co-defendant so the contents could be determined.” (Dkt. 1, p. 10.) In Ground Six,
Gagne asserts that counsel was ineffective because he was unfamiliar with relevant
statutes.
Gagne presented these claims in his postconviction motion. (Dkt. 9, Ex. 9, pp. 4854; Ex. 10, pp. 370-384.) The state court summarily denied them. (Dkt. 9, Ex.11, pp. 35Page 19 of 24
36; Ex. 16, pp. 417-22.) However, Gagne did not raise these claims on collateral appeal.
(Dkt. 9, Ex. 19.) He was required to do so in order to properly present the claims to the
state appellate court.
Florida Rule of Appellate Procedure 9.141(b)(3) governs collateral proceedings
when a motion has been granted or denied after an evidentiary hearing was held on one
or more claims. In Cunningham v. State, 131 So.3d 793 (Fla. 2d DCA 2012), addressing
the application of this Rule, “Florida’s Second District Court of Appeal clarified that
[between December 2000 and September 2010], where the state post-conviction court had
summarily denied some grounds, but denied others after an evidentiary hearing, the
Second District would consider the merits, without briefing, of all grounds that the state
post-conviction court had summarily denied.” Bucklon v. Sec’y, Dep’t of Corr., 606 Fed.
App’x 490, 492 (11th Cir. 2015) (emphasis in original).
However, the Second District Court of Appeal explained that after this time frame,
it changed its policy such that “[i]f any ground is resolved after an evidentiary hearing, we
require the appellant to process the appeal under rule 9.141(b)(3).” Cunningham, 131
So.3d at 795. Therefore, the court explained, it “no longer conducts an independent
review” of summarily denied claims that were not briefed on appeal if any claim was
resolved after an evidentiary hearing. Id. As Gagne’s collateral brief was filed in 2013, his
appeal proceeded under Florida Rule of Appellate Procedure 9.141(b)(3), which requires
submission of an initial brief within 30 days of service of the record. Furthermore, in
Florida, an appellant is considered to have abandoned claims that were not briefed with
specific argument. Simmons v. State, 934 So.2d 1100, 1111 n. 12 (Fla. 2006) (citing
Coolen v. State, 696 So.2d 738, 742 n.2 (Fla. 1997)).
Page 20 of 24
Before a district court can grant habeas relief to a state prisoner under § 2254, the
petitioner must exhaust all state court remedies that are available for challenging his
conviction, either on direct appeal or in a state postconviction motion.
28 U.S.C.
§ 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner
must give the state courts an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”). See also Henderson v. Campbell, 353 F.3d
880, 891 (11th Cir. 2003) (“A state prisoner seeking federal habeas relief cannot raise a
federal constitutional claim in federal court unless he first properly raised the issue in the
state courts.”) (citations omitted). A state prisoner “‘must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process,’ including review by the state’s court of last
resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59
(11th Cir. 2003) (quoting O’Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal
and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998) (“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 on and correct
alleged violations of its prisoners’ federal rights.’”) (quoting Duncan v. Henry, 513 U.S. 364,
365 (1995)). A federal habeas petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of the
State to raise, by any available procedure, the question presented.” Pruitt, 348 F.3d at
1358. The prohibition against raising an unexhausted claim in federal court extends to both
the broad legal theory of relief and the specific factual contention that supports relief.
Page 21 of 24
Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The requirement of exhausting state remedies as a prerequisite to federal review is
satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts
that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404
U.S. 270, 275-76 (1971). Because Gagne did not present the claims raised in Grounds
Three through Six to the state appellate court, he did not provide the state courts the
opportunity to review his federal claims by invoking one complete round of the collateral
review process. Accordingly, his claims are unexhausted.
This renders Gagne’s claims procedurally defaulted. The doctrine of procedural
default provides that “[i]f the petitioner has failed to exhaust state remedies that are no
longer available, that failure is a procedural default which will bar federal habeas relief,
unless either the cause and prejudice or the fundamental miscarriage of justice exception
is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). Gagne cannot
return to state court to file a second, untimely collateral appeal. See Fla. R. App. P. 9.141;
Fla. R. Crim. P. 3.850(k). Therefore, Grounds Three, Four, Five, and Six are procedurally
defaulted. To establish cause for a procedural default, a petitioner “must demonstrate that
some objective factor external to the defense impeded the effort to raise the claim properly
in state court.” Wright v. Hopper, 169 F. 3d 695, 703 (11th Cir. 1999). See also Murray v.
Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only
that the errors at his trial created the possibility of prejudice but that they worked to his
actual and substantial disadvantage and infected the entire trial with error of constitutional
dimensions. United States v. Frady, 456 U.S. 152, 167-70 (1982). The petitioner must
show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892;
Page 22 of 24
Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally
defaulted claim if review is necessary to correct a fundamental miscarriage of justice.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96.
A
fundamental miscarriage of justice occurs in an extraordinary case where a constitutional
violation has probably resulted in the conviction of someone who is actually innocent.
Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception
requires a petitioner’s “actual” innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of
acquittal absent the constitutional error. Schlup, 513 U.S. at 327. Gagne does not
establish the applicability of the cause and prejudice or fundamental miscarriage of justice
exception to overcome the procedural default. Therefore, Grounds Three, Four, Five, and
Six are barred from federal habeas review.
Any claims not specifically addressed in this Order have been determined to be
without merit.
Accordingly, it is
ORDERED that Gagne’s petition for writ of habeas corpus (Dkt. 1) is DENIED. The
Clerk is directed to enter judgment against Gagne and to close this case.
It is further ORDERED that Gagne is not entitled to a certificate of appealability. A
petitioner does not have absolute entitlement to appeal a district court’s denial of his
habeas petition. 28 U.S.C. § 2253(c)(1). A district court must first issue a certificate of
appealability (COA). Id. “A [COA] may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make
Page 23 of 24
such a showing, Gagne “must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that
“the issues presented were ‘adequate to deserve encouragement to proceed further.’”
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n. 4 (1983)). Gagne has not made this showing. Finally, because Gagne is not
entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 17, 2017.
Copy to:
Raymond Gagne
Counsel of Record
Page 24 of 24
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