CHARLENE EDWARD HONEYWELL, District Judge.
Loretha Hart timely filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) challenging her Pinellas County convictions. Respondent filed a response (Dkt. 21) and Hart filed a reply (Dkt. 27). Upon consideration, Hart's petition will be DENIED.
The State charged Hart with armed robbery and conspiracy to commit armed robbery. (Dkt. 25, Ex. 1, pp. 9-10). Hart entered open guilty pleas to both charges. (Id., pp. 89-90). She was sentenced to concurrent terms of 25 years in prison, with 10 years suspended and to be served on probation. (Dkt. 25, Ex. 3, pp. 253-54). The state appellate court per curiam affirmed the convictions and sentences. (Dkt. 25, Ex. 7). The state appellate court also per curiam affirmed the denial of Hart's motion for postconviction relief, filed under Florida Rule of Criminal Procedure 3.850. (Dkt. 25, Exs. 9, 11).
The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). 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. § 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:
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, 412-13 (2000). A decision is 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 to the facts of the prisoner's case." Id. at 413.
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, and . . . an unreasonable application is different from an incorrect one." Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
The state appellate court affirmed the convictions and sentences and the denial of postconviction relief without discussion. These decisions warrant 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. 2002). 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."). When a state appellate court issues a silent affirmance, "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." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Claims of ineffective assistance of counsel are analyzed under the test established in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and resulting prejudice. Id. at 687. To show deficient performance, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. A court must consider whether, "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. Because Hart entered a plea, her counsel owed her a "lesser duty" than he would have had she gone to trial. Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). Counsel was only required to provide Hart "with an understanding of the law in relation to the facts" to enable her to make an informed choice between pleading and going to trial. Id.
Hart must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92. To show prejudice, a petitioner must demonstrate "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. Because Hart entered a plea, the prejudice inquiry focuses on whether counsel's alleged 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).
Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal habeas review 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 Burt v. Titlow, 571 U.S. 12, 15 (2013) (this doubly deferential standard of review "gives both the state court and the defense attorney the benefit of the doubt.").
Hart claims that the trial court violated her due process rights by holding her "protestation of innocence" and "lack of remorse" against her at sentencing. (Dkt. 1, p. 5). Hart does not clearly raise a federal claim in Ground One. A claim that does not allege a federal constitutional violation is not cognizable in a federal habeas proceeding. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.1988) ("[A] habeas petition grounded on issues of state law provides no basis for habeas relief."). Even liberally construing Ground One as alleging a federal due process violation, however, it is barred from review. A federal habeas petitioner must exhaust her claims by presenting them in state court before raising them in her habeas petition. 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.").
Hart did not satisfy the exhaustion requirement because she did not present the federal nature of the claim on direct appeal. (Dkt. 25, Ex. 5). See Pearson v. Sec'y, Dep't of Corr., 273 Fed. App'x 847, 849-50 (11th Cir. 2008) ("The exhaustion doctrine requires the petitioner to `fairly present' his federal claims to the state courts in a manner to alert them that the ruling under review violated a federal constitutional right."); Zeigler v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003) ("To present a federal constitutional claim properly in state court, `the petitioner must make the state court aware that the claims asserted present federal constitutional issues.'" (quoting Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998))).
State procedural rules do not provide for successive direct appeals. See Fla. R. App. P. 9.140(b)(3) (a notice of appeal must be filed within 30 days of the rendition of a written sentencing order). Because Hart is prohibited from returning to state court to present the federal due process argument, her claim is procedurally defaulted. See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001) ("If 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."). The claim is barred from review unless Hart establishes the applicability of either the cause and prejudice or fundamental miscarriage of justice exception. See id.
Hart does not establish that an exception applies to overcome the default. In her reply, Hart states that "[a] `fundamental miscarriage of justice' was in fact established once the Petitioner's right to due process was violated." (Dkt. 27, p. 1). To the extent Hart contends that the fundamental miscarriage of justice exception applies, her argument fails. 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). This exception requires a petitioner's "actual" innocence, rather than mere legal insufficiency. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). Such a "claim of innocence is . . . `not itself a constitutional claim, but instead a gateway through which a petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). "To be credible, . . . a claim [of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Id. at 325. Hart has not presented any new, reliable evidence of her actual innocence. Accordingly, she fails to establish that the fundamental miscarriage of justice exception applies to excuse the default. Ground One is barred from review.
Hart alleges that counsel was ineffective in failing to object when, in determining her sentence, the court considered her "failure to admit guilt, lack of remorse, and [the court's] opined sense that she lied" at a competency hearing. (Dkt. 1, p. 9). The factual basis for Hart's plea provided that Hart enlisted the help of numerous co-defendants to rob a pain clinic in St. Petersburg, Florida. (Dkt. 25, Ex. 2, pp. 175-77). On the morning of May 12, 2010, Hart visited the pain clinic. (Id., p. 176). While there, she called her son, Jared Murray. (Id.). Jared Murray and two other co-defendants, Larry Boyd and Kenneth Baxter, then met with Hart at Hart's home. (Id.). Hart told them where pills and a safe were located in the clinic. (Id.). She also provided co-defendant Lindsey Sermon with a pillowcase and told him to use the pillowcase because it would not pick up fingerprints. (Id.).
Jared Murray provided guns to Baxter and Sermon, who carried them into the clinic. (Id., pp. 175, 176-77). Sermon confronted a manager at gunpoint, hit her over the head, and took $3,000 in cash and numerous pain pills from a safe. (Id., p. 175). After leaving, Sermon, Baxter, and another co-defendant, Stewart Lucas, got into a car with Jared Murray and Jacob Murray. (Id., pp. 175-76).
At the sentencing hearing, after presenting several mitigation witnesses, Hart denied that she had been on the phone with her son while at the clinic. (Id., p. 203). Hart said that she was on the phone with another doctor's office. (Id., pp. 203-04). The court then stated:
(Id., pp. 205-07).
The court reviewed Hart's criminal history, including her convictions for theft, dealing in stolen property, battery, sale and possession of cocaine, and harassing telephone calls. (Id., pp. 207-08). The court continued:
(Dkt. 25, Ex. 2, pp. 208-11, 213).
Hart claimed in her postconviction motion that counsel was ineffective in failing to object to the court's consideration of her lack of candor and failure to take responsibility. The state court denied this claim:
(Dkt. 25, Ex. 9, p. 18) (court's record citations omitted).
The court did not unreasonably deny Hart's claim on Strickland's prejudice prong. Hart fails to show that an objection would have succeeded. The court did not improperly consider Hart's truthfulness and lack of remorse in determining her sentence based on the aggravating and mitigating circumstances:
Corbitt v. State, 220 So.3d 446, 450 (Fla. 5th DCA 2016).
The sentencing court clearly considered Hart's mitigation evidence, stating that the mitigation convinced the court to suspend part of her prison sentence. And, as the state court found, Hart failed to show a reasonable probability that she would have received a lesser sentence even if counsel had objected and secured resentencing before a different judge. Accordingly, Hart has failed to demonstrate prejudice resulting from counsel's failure to object at the sentencing hearing. The state court did not unreasonably apply Strickland or unreasonably determine the facts in denying Hart's claim. She is not entitled to relief on Ground Four.
Hart alleges that trial counsel was ineffective in failing to advise her of a "discrepancy between the heading and the body of the Information as to the offense charged." (Dkt. 1, p. 6). She claims that "the offen[s]e described in the body is one in which defendant is charged with Armed Robbery; where the Charging Instrument does not allege that Defendant possessed a firearm or any other weapon at the time of the crime." (Id.).
The record supports a finding that Hart's plea was voluntary. 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 adefendant's statements during a plea colloquy are not insurmountable, "the representations of the defendant, his lawyer, and the prosecutor 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 transcript from Hart's change of plea hearing demonstrates that Hart understood the charges against her and possible penalties she faced. (Dkt. 25, Ex. 2, pp. 134-35, 137). It also indicates Hart's understanding that an open plea carried no guarantee of a sentence for any term of years and that the judge would determine the sentence after hearing mitigation. (Id., pp. 168-69). Hart also told the court that she understood the rights she waived by pleading, and that she was not forced, coerced, or threatened into entering the plea. (Id., pp. 171-73). The court found that Hart entered her plea freely and voluntarily. (Id., p. 177).
Because Hart's claim alleges a constitutional deprivation occurring before the entry of her guilty plea, it is barred from review. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("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."). Accordingly, only "an attack on the voluntary and knowing nature of the plea can be sustained." Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). Liberally construing Hart's claim as involving the voluntariness of her plea, however, she fails to show that counsel was ineffective. The state court summarily denied Hart's claim:
(Dkt. 25, Ex. 9, pp. 14-15) (court's record citation omitted).
The record shows that the second amended information listed "robbery" in the heading for count one, and within the body of count one, the State alleged that co-defendants Jared Murray, Lindsey Sermon, and Kenneth Baxter possessed a firearm. (Dkt. 25, Ex. 1, p. 9).
There is support for the state court's finding that the information did not contain any error or discrepancy to which counsel should have objected. As the state court explained, under Florida law, Hart could be charged as a principal to armed robbery even though the State did not allege that she possessed a firearm. See § 777.011, Fla. Stat.
Hart contends that counsel did not engage in plea negotiations with the State until three days before the date her case was set for trial. She claims that trial counsel was ineffective in failing to attempt plea negotiations earlier. Because Hart does not allege that counsel's alleged deficiency affected the voluntary nature of her plea, this claim is barred under Tollett. Alternatively, Hart fails to show entitlement to relief on her claim. The state court denied this argument when Hart raised it in her postconviction motion:
(Dkt. 25, Ex. 9, pp. 15-16) (court's record citations omitted).
The record supports the state court's conclusion. At the change of plea hearing, the prosecutor indicated that the State was willing to agree to an open plea (Dkt. 25, Ex. 12, p. 132), but that the State would ask for a life sentence:
(Id., p. 131).
Despite the prosecutor's noting the proximity to trial, there is no indication that the prosecutor was at any time willing to agree to a negotiated plea for a term of years. To the contrary, the prosecutor stated at the sentencing hearing, "for the record, the State was seeking a life sentence and we always have been in this case against Ms. Hart based on her prior record, the facts and her actions in this case." (Dkt. 25, Ex. 2, p. 196) (emphasis added). Accordingly, Hart has not established that counsel would have succeeded in obtaining a negotiated plea for a term of years had he started negotiations earlier. The state court did not unreasonably apply Strickland or unreasonably determine the facts in denying her claim.
Within Ground Three, Hart also claims that counsel failed to convey her plea offer to the state. Hart's claim is unexhausted because she did not present it to the state court in her postconviction motion. (Dkt. 25, Ex. 9, pp. 1-10). The claim is procedurally defaulted because Hart cannot return to state court to present it in an untimely, successive postconviction motion. See Fla. R. Crim. P. 3.850(b), (h). Notwithstanding the default, Hart cannot obtain relief. Hart's claim is vague and conclusory, as she does not specify the terms of the offer, or when or under what circumstances she told counsel to convey the offer to the State. Such unsupported claims are insufficient to show ineffective assistance of counsel. See Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) ("Conclusory allegations of ineffective assistance are insufficient.") (citation omitted); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim). Further, the record only reflects one defense offer for three years, which appears to have been rejected by the court. (Dkt. 25, Ex. 2, p. 140). But there is no indication that the State was not made aware of this offer or that the State would have accepted it. Accordingly, Hart has not demonstrated that her attorney performed deficiently in failing to convey a plea offer to the State, or that she suffered prejudice as a result. Hart is not entitled to relief on Ground Three.
Any claims not specifically addressed in this Order have been determined to be without merit.
Accordingly, it is
1. Hart's petition for writ of habeas corpus (Dkt. 1) is
2. The Clerk is directed to enter judgment against Hart and to close this case.
3. Hart is not entitled to a certificate of appealability ("COA"). 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 COA must first issue. 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 such a showing, Hart "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)). Hart has not made this showing. Because Hart is not entitled to a COA, she is not entitled to appeal in forma pauperis.