Belle v. Jones

Filing 27

ORDER: Belle's petition is DENIED. The CLERK is directed to enter judgment against Belle and to CLOSE this case. A certificate of appealability and leave to appeal in forma pauperis are DENIED. Signed by Judge Kathryn Kimball Mizelle on 3/31/2021. (NPC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID BELLE,
Applicant,
v.

Case No. 8:18-cv-629-KKM-SPF

SECRETARY, Department of Corrections,
Respondent.
____________________________________/
ORDER
David Belle, through counsel, applies for habeas relief under 28 U.S.C. § 2254,
challenging his conviction for attempted lewd or lascivious molestation of a child under
the age of twelve and his sentence of imprisonment for eleven years. (Doc. 1).
Respondent concedes that the petition is timely and that the ground for relief is
exhausted (Doc. 13 at 4, 7), but correctly contends that Belle fails to meet his burden
of showing entitlement to relief under § 2254. 1 Similarly, Belle fails to establish
entitlement to a certificate of appealability. The petition is therefore denied.

Because the Court can resolve the petition on the record alone, an evidentiary hearing is
unwarranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

1

I.

BACKGROUND

A. Pre-Plea and Plea Proceedings
The State of Florida charged Belle with lewd or lascivious molestation of his
girlfriend’s seven-year-old daughter. (Doc. 14-2, Ex. 1). The State’s case included an
audio recording captured by his girlfriend’s cellular telephone that contained
inculpatory statements by both Belle and the victim. (Doc. 14-2, Ex. 2). Belle moved to
suppress the recording on the basis that it violated section 934.06, Florida Statutes,
which prohibits introduction into evidence in any trial a recording made in violation of
§ 934.03 that bans “[i]ntentionally intercept[ing]” oral communications. (Doc. 14-2, Ex.
2, at 1–5). The trial court denied the motion. (Doc. 14-2, Ex. 3).
Two weeks later––and because the admissibility of the recording was
dispositive––Belle pleaded nolo contendere reserving the right to appeal the denial of
the motion to exclude. (Doc. 14-2, Ex. 4, at 9, 13). 2 Before he entered his plea, the trial
judge cautioned Belle that “[i]f I have the impression that you’re being pressured into
this and it’s not voluntary, I won’t accept it,” and Belle represented that “[i]t’s in my
best interest to sign the plea.” (Id. at 6, 8). The trial court accepted Belle’s plea of
2

In the absence of a plea agreement, his counsel characterized the “negotiated plea” as follows:
[W]e do have a – a kind of an odd arrangement with the State, it’s an adjudication of
guilt, 11 years Florida State Prison with all credit for time served including today’s
date with leave to appeal the stipulated – dispositive motion to exclude the iPhone
recording, designation as a sexual predator and all financial obligations to a civil
judgment.

(Doc. 14-2, Ex. 4, at 7).
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no contest to the lesser-included attempted lewd and lascivious molestation, sentenced
Belle to eleven years of imprisonment, and noted that Belle reserved the right to appeal
the admissibility of the audio recording of the incident. (Id. at 13).
B. Appellate Proceeding
The only issue raised on direct appeal was the admissibility of the audio recording
on the girlfriend’s cellphone. In affirming the trial court, Belle v. State, 177 So. 3d 285
(Fla. 2d DCA 2015), the appellate court noted that Belle’s “attorney did not present
evidence” at the hearing. Id. at 286. Instead, “[t]he parties essentially stipulated to a bare
minimum of facts, engaging in open court negotiations as to what facts would be part
of the stipulation.” Id. The trial court thus never made factual findings, thereby
complicating the presentation of facts on appeal. Id. But the appellate court stated
certain facts were “undisputed”—namely, that Belle’s girlfriend turned on an
application on her iPhone and a recording was made documenting Belle’s sexual abuse
of the minor victim. Id.
Belle argued on direct appeal that the trial court violated his rights under state
law by not suppressing the recording. Id. at 285. “Although a motion to suppress or
exclude evidence under section 934.06 has similarities to a motion to suppress under
the Fourth Amendment, it is a statutory right, and it was Mr. Belle’s burden to establish
that the facts in this case fell within the provisions of this statutory exclusionary rule.”
Belle, 177 So. 3d at 287. The appellate court (1) agreed with the “trial court . . . that Mr.

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Belle failed to prove that his girlfriend intentionally intercepted the portion of the
recording that took place when she was gone” and (2) held that “Mr. Belle did not
establish that the communications were intercepted ‘under circumstances justifying’ an
expectation of privacy.” Id. at 288 (quoting § 934.02(2), Fla. Stat.). It noted that, had the
“facts been determined by the judge in this case after a full evidentiary hearing, the
factual basis for Mr. Belle’s motion might have been stronger.” Id. But it rightly noted
it could not resolve that issue on direct appeal and therefore affirmed. Id.
C. Postconviction Proceedings
Belle timely filed a motion for postconviction relief under Florida Rule of
Criminal Procedure 3.850, alleging that trial counsel rendered ineffective assistance by
failing to sufficiently introduce evidence to support the motion to suppress the audio
recording. (Doc. 14-2, Ex. 12). The postconviction court struck the initial Rule 3.850
motion as facially insufficient because it lacked a request to withdraw the plea. (Id. at 2).
The postconviction court likewise struck the first amended Rule 3.850 motion as facially
insufficient for failing to request to withdraw the plea. (Doc. 14-2, Ex. 16).
The postconviction court denied Belle’s second amended (and final) Rule 3.850
motion stating that, “[i]n the present motion, and those that preceded it, Defendant
acknowledges that Hill and its progeny require defendants to allege and demonstrate
that, but for counsel’s errors, they would not have entered a plea, but instead insisted
on going to trial. Nevertheless, Defendant stops short of alleging as much.” (Doc. 14-

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2, Ex. 18, at 5). The court rejected Belle’s proposed standard for proving ineffective
assistance of counsel, stating, “Defendant asserts that if counsel argued the motion to
suppress more effectively, the outcome of the suppression hearing and/or the appeal
that followed would have been different.” (Id.). But “[r]ather than seek a withdrawal of
the plea and request that the Court allow the case to return to a pretrial posture, [Belle]
suggests that the Court should essentially reconsider the merits of the motion to
suppress and, if persuaded that counsel’s ineffective pursuit of the motion at the prior
hearing lead to an incorrect ruling on the admissibility of the State’s evidence,
immediately vacate his conviction.” (Id.). In other words, “Defendant seeks a second
suppression hearing.” (Id.). But Belle never identified “any authority suggesting that the
remedy for ineffective assistance related to a dispositive issue is a second hearing on the
dispositive issue rather than a chance to withdraw the plea and proceed to trial.” (Id.).
Because Belle never requested to do so and never alleged “that he would have gone to
trial if not for counsel’s ineffectiveness,” the postconviction court once again concluded
the motion was facially insufficient and denied relief. (Id. at 6).
The state appellate court affirmed in a per curiam decision without a written
opinion. (Doc. 14-2, Ex. 21). Belle now seeks relief under § 2254 by raising the same
ineffective assistance of counsel claim that he exhausted in state court.
II.

STANDARDS OF REVIEW OF AN
APPLICATION UNDER SECTION 2254

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs
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this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas
relief under the AEDPA can be granted only if a petitioner is in custody “in violation
of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section
2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on
the merits in state court unless the state court’s adjudication:
(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.
For purposes of § 2254(d)(1), a decision is “contrary to” clearly established
federal law “if the state court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 413 (2000). The phrase “clearly established Federal law” encompasses the
holdings only of the United States Supreme Court “as of the time of the relevant
state-court decision.” Id. at 412. A decision involves an “unreasonable application” of
clearly established federal law “if the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably applies that principle

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to the facts of the prisoner’s case.” Id. 3
The AEDPA was meant “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. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s
application of clearly established federal law is objectively unreasonable,” as “an
unreasonable application is different from an incorrect one.” Id. at 694. Consequently,
to obtain relief under the AEDPA, “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, 562 U.S. 86, 103 (2011);
see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s
application of clearly established federal law must be objectively unreasonable” for a
federal habeas petitioner to prevail and that the state court’s “clear error” is insufficient).
When the last state court to decide a federal claim explains its decision in a
reasoned opinion, a federal habeas court reviews the specific reasons as stated in the
opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.
1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons given
by the state court and defers to those reasons if they are reasonable.”). When the
Belle does not challenge the state postconviction court’s ruling as based on an unreasonable
determination of facts under § 2254(d)(2). If he had, the AEDPA would require him to rebut the
presumption of correctness afforded to a state court’s factual findings by clear and convincing
evidence. § 2254(e)(1).

3

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relevant state-court decision is not accompanied with reasons for the decision—such
as a summary affirmance without discussion—the federal court “should ‘look through’
the unexplained decision to the last related state-court decision that does provide a
relevant rationale [and] presume that the unexplained decision adopted the same
reasoning.” Id. Here, the postconviction court is the last reasoned decision and this
Court presumes that its decision provides the relevant basis for denial of relief.
III.

ANALYSIS

Belle seeks habeas relief on a single ground of ineffective assistance of counsel.
He argues that the state postconviction court “applied the wrong law” in denying his
motion for postconviction relief, and he seeks a remand to state court for “further
proceedings consistent with Strickland.” (Doc. 1 at 17, 24). The problem for Belle is that
the state court applied the correct federal law—Strickland v. Washington, 466 U.S. 668
(1984), and its progeny, Hill v. Lockhart, 474 U.S. 52 (1985). Because the state court’s
determination was neither “contrary to, [n]or involved an unreasonable application of”
those precedents, Belle fails to establish entitlement to relief. § 2254(d)(1).
The two-part standard articulated in Strickland is well-known: a petitioner must
show both deficient performance by his counsel and prejudice resulting from those
errors. 466 U.S. at 687. The first part “requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Id. The lynchpin of this analysis is whether counsel’s conduct

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“was reasonable considering all the circumstances.” Id. at 688. A petitioner establishes
deficient performance if “the identified acts or omissions [of counsel] were outside the
wide range of professionally competent assistance.” Id. at 690. A court “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.
The second part requires showing that the deficient performance prejudiced the
defense. Id. at 687. “An 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. To demonstrate 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.
In the context of guilty pleas—where there is no proceeding to evaluate because
the defendant has forfeited the proceeding entirely—prejudice must be demonstrated
by showing a “reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. Stated
otherwise, the prejudice in the guilty plea context “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.” Id.
(emphasis added).
A federal district court’s review of an ineffective assistance of counsel claim “ ‘is

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not whether a federal court believes the state court’s determination’ under the Strickland
standard ‘was incorrect but whether that determination was unreasonable—a
substantially higher threshold.’ ” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting
Schriro, 550 U.S. at 473). Consequently, federal petitioners rarely prevail on claims of
ineffective assistance of counsel 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 (quotation and citations omitted).
In Belle’s case, the state postconviction court recognized that Strickland governs
ineffective assistance of counsel claims generally. (Doc. 14-2, Ex. 18, at 3). It further
acknowledged that, when adjudicating these claims in the context of guilty pleas, a
petitioner must show “that there is a reasonable probability that, but for counsel’s
errors, the movant would not have entered a plea but would have insisted on going to
trial.” (Id. at 4 (quoting Campbell v. State, 139 So. 3d 490, 497 (Fla. 2d DCA 2014) (citing
Hill))). The state court then explained that “a defendant must allege and demonstrate
that he would not have accepted the plea and instead gone to trial” and that failure to
move to withdraw a plea results in denial of relief. (Id.)
Belle expressly argued before that court that he did not seek withdrawal of his
plea and that the voluntariness of his plea was not at issue.(Doc. 14-2, Ex. 20, at 7
(“Appellant was not challenging the voluntary nature of his plea.”)); see (Doc. 1 at 14
(“[P]etitioner was not, in any way, challenging the voluntary nature of his plea.”) & 21

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(“Because petitioner was happy with his dispositive plea agreement, he did not challenge
the voluntary nature of his plea.”)). He instead sought reconsideration of the motion to
suppress on the basis that, had his counsel adequately performed at the original
suppression hearing, the appellate court “would have had a complete record upon
which to decide the petitioner’s direct appeal” and he would presumably have secured
a reversal. (Doc. 1 at 21). The postconviction court ruled that such relief was not an
appropriate remedy and, because Belle never filed a motion to withdraw his plea nor
alleged that he would have gone to trial if not for counsel’s ineffectiveness, he was not
entitled to relief. (Doc. 14-2, Ex. 18, at 5–6).
Belle asserts the same position in his federal petition: “The instant case is not
one where petitioner challenged the voluntary nature of his plea. To the contrary, the
petitioner was happy with the terms of his dispositive plea, but unhappy with counsel’s
performance in preparing for, and arguing, his motion to suppress the i[P]hone
recording.” (Doc. 1 at 22). He argues that Hill is inapplicable and that the state
postconviction court erroneously applied it. In Belle’s view, Strickland is the “proper
standard governing his ineffective assistance of counsel claims.” (Id. at 21). Per Belle,
applying Strickland correctly would “go[ ] directly to the outcome of the appellate
proceedings.” (Id. at 7).
Belle raises odd and confusing arguments, both here and in the state
postconviction court. Belle argues that, because he does not challenge the plea, the

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postconviction court erroneously applied Hill in conjunction with Strickland, rather than
applying only Strickland without Hill. The Court fails to see how applying Hill (or Hill
with Strickland) was contrary to clearly established federal law under § 2254(d)(1).
Strickland applies to a general claim of ineffective assistance of counsel. And Hill extends
Strickland to a claim of ineffective assistance of counsel involving a guilty plea instead
of a guilty verdict at the end of a trial.
Not only did the state postconviction court identify the correct federal standard,
that court’s determination was not an unreasonable application of Hill/Strickland. The
Supreme Court requires petitioners to demonstrate prejudice by showing a “reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill, 474 U.S. at 59. But Belle resists that showing by
his own framing of his intended desire not to challenge his plea. He certainly never
attested before the state court to a desire to unwind his plea—repeatedly asserting that
he is “happy with his dispositive plea agreement.” And Belle does not cite any authority
for support that the state court unreasonably applied Strickland by applying Hill to his
circumstance. Whether this Court might have interpreted Belle’s unusual
postconviction motion as one actually attacking the plea itself (despite his contrary
assertions), it was not an unreasonable application of federal law to deny relief.4 This

Respondent argues that Belle’s claim is procedurally barred because the postconviction court
premised its denial of facial insufficiency on a state law requirement that a petitioner must request to

4

(continued…)

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conclusion is particularly warranted where Bell has been represented by counsel at every
stage of the state-court and federal-court proceedings.
IV.

CONCLUSION

Belle fails to meet his burden to show that the state postconviction court’s
decision was contrary to, or an unreasonable application of, controlling Supreme Court
precedent. The state court reasonably applied Strickland––whether alone or in tandem
with Hill––in determining that Belle was entitled to no relief. See White v. Woodall,
572 U.S. 415, 427 (2014) (“The critical point is that relief is available under
§ 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that a
clearly established rule applies to a given set of facts that there could be no ‘fairminded
disagreement’ on the question . . . .” (quoting Richter, 562 U.S. at 103)); Woods v. Donald,
575 U.S. 312, 316 (2015) (“And an ‘unreasonable application of ’ those holdings must
be objectively unreasonable, not merely wrong; even clear error will not suffice.”
(quoting Woodall, 572 U.S. at 419)).
Accordingly, Belle’s petition for the writ of habeas corpus (Doc. 1) is DENIED.
The clerk must enter a judgment against Belle and CLOSE this case.

withdraw his plea. (Doc. 13 at 9–11). The Court is not convinced that the postconviction court’s
reasoning relied necessarily on a state law requirement instead of application of Hill and similar
caselaw to establish prejudice, especially because the cases cited by the postconviction court relied
on Hill. (Doc. 14-2, Ex. 18, at 4 (quoting Campbell v. State, 139 So. 3d 490, 497 (Fla. 2d DCA 2014) (citing
Hill))). But if it did, that would be another basis for denying federal habeas relief.
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NO CERTIFICATE OF APPEALABILITY
A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal
a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Instead, a district court
or court of appeals must first issue a certificate of appealability (COA). Id. To obtain a
COA, a petitioner must show that “jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 326 (2003); 28 U.S.C. § 2253(c)(2). Belle fails to show that
reasonable jurists would debate either the merits of the grounds or the procedural issues
and is therefore not entitled to a COA or to appeal in forma pauperis.
A certificate of appealability is DENIED. Leave to appeal in forma pauperis is
DENIED.
ORDERED in Tampa, Florida, on March 31, 2021.

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