CHARLES J. KAHN, Jr., Magistrate Judge.
Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 1). Respondent filed an answer, submitting relevant portions of the state court record. (Doc. 18). Petitioner replied. (Doc. 21). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by petitioner, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to habeas relief, and that the petition should be denied.
On December 23, 2009, petitioner was charged in Jackson County Circuit Court Case Number 09-CF-744, with one count of sale or delivery of a controlled substance (cocaine), in violation of Section 893.13(1)(a), Florida Statutes. (Doc. 18, Ex. A).
The day petitioner's case was scheduled for jury selection, August 23, 2010, petitioner entered a counseled, non-negotiated, straight/open plea of no contest to the charge. Petitioner's plea was memorialized in a written "Plea, Waiver and Consent" form which petitioner executed and defense counsel co-signed. (Exs. B, C). By signing the written plea form, petitioner attested that he was informed that the maximum penalty the court could impose for his offense was 15 years in the Florida Department of Corrections; that he felt his plea was in his best interest; that he was advised of the nature of the charge against him; that he had sufficient time to discuss the charge with his attorney; that he was satisfied with the services and advice of his attorney; that no person made any promises or suggestions of any kind to him that if he pled to the charge he would receive a light sentence, probation, or any other form of leniency; that he understood the constitutional rights he was giving up by entering his plea and he knowingly waived those rights; that his plea was entered freely and voluntarily and of his own free will with no one having forced, threatened, persuaded, promised, induced or otherwise influenced him to enter his plea; that he was in full command of his normal faculties; that he agreed that the State of Florida could prove a prima facie case that he committed the crime charged; and that he had the advice of counsel on, and fully understood the matters addressed within, the plea form. (Ex. B).
Upon receipt of petitioner's written plea, the trial court conducted a plea colloquy wherein he questioned petitioner about the voluntariness of his plea, as well as his understanding of the nature of the charge, the maximum sentence he could receive and the consequences of his plea. (Ex. C). Petitioner affirmed under oath that he signed the plea form after going over it with his attorney; that he was knowingly entering his no contest plea to the charge of sale of cocaine; that he understood the maximum sentence he could receive was 15 years in state prison; and that no one promised him anything or threatened him in any manner to induce him to enter the plea. (Ex. C). The prosecutor recited the factual basis for petitioner's plea. The trial court determined there was a sufficient factual basis and that the plea was knowingly and voluntarily entered with the advice of counsel, and accepted petitioner's plea. (Id.). A pre-sentence investigation was ordered, and the matter was set for a sentencing hearing on September 1, 2010. (Id.).
On September 1, 2010, the trial court adjudicated petitioner guilty of sale of cocaine, reviewed the pre-sentence investigation, heard arguments from counsel as to the appropriate sentence, considered testimony from petitioner's wife, petitioner, and Jackson County Sheriff's Office Captain Joey Rabon, and sentenced petitioner to 12 years in state prison. (Exs. D (sentencing transcript) E (judgment)). The Florida First District Court of Appeal ("First DCA") affirmed the judgment on August 21, 2012. Jackson v. State, 95 So.3d 444 (Fla. 1st DCA 2012) (Mem.) (copy at Ex. L).
On September 26, 2012, petitioner filed a pro se motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800(c). (Ex. N, pp. 1-21; Ex. S, pp. 1-21). The state circuit court summarily denied the motion on October 29, 2012. (Ex. N, p. 22; Ex. S, p. 22).
On October 30, 2012, petitioner filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which he twice amended. (Ex. N, pp. 23-56, 57-95, 96-143). The state circuit court struck the motions as facially insufficient with leave to amend. (Ex. N, p. 144). Petitioner filed a third amended motion on October 23, 2013. (Ex. N, pp. 159-176). The state court denied relief without an evidentiary hearing. (Ex. N, pp. 177-200 and Ex. O, pp. 201-251). The First DCA affirmed, per curiam and without a written opinion. Jackson v. State, 149 So.3d 5 (Fla. 1st DCA 2014) (Table) (copy at Ex. Q). The mandate issued October 1, 2014. (Ex. R).
While his Rule 3.850 proceeding was pending, petitioner filed a pro se motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), on November 21, 2012. (Ex. S, pp. 23-28). The state circuit court denied the motion on December 14, 2012. (Ex. S, pp. 29-94). The First DCA affirmed, per curiam and without a written opinion. Jackson v. State, 108 So.3d 1083 (Fla. 1st DCA 2013) (Table) (copy at Ex. T). The mandate issued March 20, 2013. (Ex. U).
Also while his Rule 3.850 proceeding was pending, petitioner filed a pro se petition for writ of habeas corpus in the First DCA alleging ineffective assistance of appellate counsel. (Ex. V). The petition was denied on the merits on February 6, 2014. Jackson v. State, 132 So.3d 360 (Fla. 1st DCA 2014) (Mem.) (copy at Ex. T).
Petitioner filed his federal habeas petition on December 30, 2014. (Doc. 1). The petition presents six claims. (Id.). Respondent asserts that each claim fails because petitioner fails to satisfy his burden under § 2254(d). (Doc. 18, pp. 6-19).
Federal courts may issue habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. Section 2254(d) provides, in relevant part:
28 U.S.C. § 2254(d) (2015).
The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L. Ed. 2d 389 (2000).
Id., 529 U.S. at 412-13 (O'Connor, J., concurring).
Employing the Williams framework, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a state court proceeding, the federal court must first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is "clearly established" only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 175 L. Ed. 2d 1003 (2010); Woods v. Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376, 191 L. Ed. 2d 464 (2015) ("We have explained that clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions." (internal quotation marks and citation omitted)).
After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is "contrary" only if either the reasoning or the result contradicts the relevant Supreme Court cases. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L. Ed. 2d 263 (2002) ("Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). Where there is no Supreme Court precedent on point, the state court's conclusion cannot be contrary to clearly established federal law. See Woods, 135 S. Ct. at 1377 (holding, as to claim that counsel was per se ineffective in being absent from the courtroom for ten minutes during testimony concerning other defendants: "Because none of our cases confront the specific question presented by this case, the state court's decision could not be contrary to any holding from this Court." (internal quotation marks and citation omitted)). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 954, 127 S.Ct. 2842, 168 L. Ed. 2d 662 (2007).
If the "contrary to" clause is not satisfied, the federal habeas court next determines whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was "objectively unreasonable" in light of the record before the state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam). In applying this standard, the Supreme Court has emphasized:
Woods, 135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L. Ed. 2d 624 (2011)).
Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where that adjudication "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." 28 U.S.C. § 2254(d)(2). The "unreasonable determination of the facts" standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011). As with the "unreasonable application" clause, the federal court applies an objective test. Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L. Ed. 2d 931 (2003) (holding that a state court decision based on a factual determination "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding."). Federal courts "may not characterize . . . state-court factual determinations as unreasonable merely because we would have reached a different conclusion in the first instance." Brumfield v. Cain, — U.S. —, 135 S.Ct. 2269, 2277, 192 L. Ed. 2d 356 (2015) (quotation marks omitted).
When performing review under § 2254(d), the federal court presumes that all factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). The petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that a federal court can disagree with a state court's factual finding and, when guided by AEDPA, "conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence"). Neither the Supreme Court nor the Eleventh Circuit has interpreted how § 2254(d)(2) and § 2254(e)(1) interact in the context of fact-based challenges to state court adjudications. Cave v. Sec'y for Dep't of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit recently declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate court's summary affirmance, where it found that the validity of the state court decision was not premised on the trial court's unreasonable fact finding, and that the petitioner failed to demonstrate "by clear and convincing evidence that the record reflect[ed] an insufficient factual basis for affirming the state court's decision." Gill, 633 F.3d at 1292.
Only if the federal habeas court finds that the petitioner satisfied AEDPA and § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti, 551 U.S. at 954. Even then, the writ will not issue unless the petitioner shows that he is in custody "in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2254(a). "If this standard is difficult to meet, that is because it was meant to be." Richter, 562 U.S. at 102.
Petitioner's first two grounds assert that Fla. Stat. § 893.13 is unconstitutional on its face because it violates due process by eliminating a mens rea requirement. (Doc. 1, pp. 6-7 in ECF). Respondent argues that relief on this claim is foreclosed by State v. Adkins, 96 So.3d 412 (Fla. 2012), and Shelton v. Sec'y, Dep't of Corr., 691 F.3d 1348 (11th Cir. 2012), cert. denied, 133 S.Ct. 1856 (2013). (Doc. 18, p. 6). Petitioner agrees in his reply that Grounds One and Two are without merit, and notifies the court that he abandons these claims. (Doc. 21, pp. 1-2).
Petitioner's third ground for relief claims that trial counsel was ineffective for failing to seek dismissal of petitioner's charge on the grounds that Fla. Stat. § 893.13 is unconstitutional on its face. (Doc. 1, pp. 8-9 in ECF). Respondent asserts that because petitioner's underlying constitutional challenge to the statute lacks merit, counsel cannot be ineffective for failing to raise it. (Doc. 18, pp. 6-7). Petitioner's reply agrees with respondent that this claim is without merit, and notifies the court that he abandons Ground Three. (Doc. 21, p. 2). Because petitioner has abandoned Grounds One, Two and Three, the court should deny habeas relief on these claims.
Petitioner claims trial counsel was ineffective at sentencing because he failed to argue "for a downward departure sentence based on conceded sentence manipulation by Captain Joey Dean Rabon of the Jackson County Sheriff's Department." (Doc. 1, p. 11 in ECF). Petitioner explains his theory of sentence manipulation as follows:
(Id., p. 12 in ECF). Petitioner also faults counsel for "fail[ing] to move to consolidate the other related and pending cases with the instant case, 09-744, after learning that the officers participated in sentence manipulation." (Id.). Petitioner further contends counsel was deficient because after the judge announced his preliminary determination that a 12-year sentence was appropriate, counsel should have "mov[ed] for a comparative proportionality review of that sentence and argued that imposition of the sentence would result in unwarranted sentencing disparity between Jackson's sentence and the sentences previously discussed that were imposed for similar crimes on defendants with similar or worse records." (Id.). Petitioner argues that had counsel made the sentencing arguments petitioner proposes, there is a reasonable probability his sentence would have been different, and there is also a reasonable probability he would not have pleaded guilty and would have insisted on going to trial. (Doc. 1, p. 13 in ECF). Respondent asserts that the state court's rejection of petitioner's claim was a reasonable application of Strickland v. Washington, 466 U.S. 668 (1984). (Doc. 18, pp. 7-16).
In determining the validity of a plea to a criminal charge, a plea of nolo contendere 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); Hudson v. United States, 272 U.S. 451, 47 S.Ct. 127, 71 L. Ed. 347 (1926). "A guilty plea is an admission of criminal conduct as well as the waiver of the right to trial." Finch v. Vaughn, 67 F.3d 909, 914 (11th Cir. 1995) (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L. Ed. 2d 747 (1970)). With regard to a plea admitting criminal conduct, the Supreme Court explained:
United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L. Ed. 2d 927 (1989).
"Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady at 748. Accordingly, in the context of a guilty plea, the standard for determining the validity of the plea is "whether the plea represents a voluntary intelligent choice among the alternative courses open to the defendant." Alford, 400 U.S. at 31; Boykin, 395 U.S. at 242. The assistance of counsel received by a defendant is relevant to the question of whether a defendant's guilty plea was knowing and intelligent insofar as it affects the defendant's knowledge and understanding. See McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 25 L. Ed. 2d 763 (1970).
"Once a plea of guilty has been entered, nonjurisdictional challenges to the conviction's constitutionality are waived, and only an attack on the voluntary and knowing nature of the plea can be sustained." Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir. 1983). This waiver includes all claims of ineffective assistance of counsel "except insofar as the ineffectiveness is alleged to have rendered the guilty plea involuntary." United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000). The Supreme Court said in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L. Ed. 2d 235 (1973):
Id., 411 U.S. at 267; see also Lefkowitz v. Newsome, 420 U.S. 283, 288, 95 S.Ct. 886, 43 L. Ed. 2d 196 (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."). A jurisdictional defect is one that "implicates a court's power to adjudicate the matter before it." United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002).
The advantages of entering a plea may only be secured "if dispositions by guilty plea are accorded a great measure of finality." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 52 L. Ed. 2d 136 (1977). Recognizing that a prisoner more often than not "has everything to gain and nothing to lose from filing a collateral attack upon his guilty plea", courts accord great deference to a defendant's statements during a plea colloquy and are reluctant to allow a defendant to go behind his own sworn testimony. Id., 431 U.S. at 71.
Id. at 73-74 (citations omitted).
When a petitioner challenges the voluntariness of his plea based upon allegations of ineffective assistance of counsel, the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), applies. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L. Ed. 2d 203 (1985); see also Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 178 L. Ed. 2d 649 (2011) (identifying Strickland as the clearly established federal law governing a habeas petitioner's challenge to his conviction obtained through a plea bargain). To obtain relief under Strickland, a petitioner must establish that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
In a plea situation, the focus of inquiry under the performance prong of Strickland is "whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Hill, 474 U.S. at 56-57 (quoting McMann, 397 U.S. at 771). "Judicial scrutiny of counsel's performance must be highly deferential," and courts should make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland at 689. The Supreme Court has expressly warned about second-guessing professional judgments made by counsel:
McMann, 397 U.S. at 769-70. Counsel must provide advice "within the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56-57 (quoting McMann, 397 U.S. at 771). Under this standard, representation is ineffective only if counsel commits "serious derelictions" of his duty when advising the accused. Stano v. Dugger, 921 F.2d 1125, 1150-51 (11th Cir. 1991). Absent such blatant errors, the court should "indulge a strong presumption that counsel's conduct fell within the wide range of reasonably professional assistance." Yordan v. Dugger, 909 F.2d 474, 477 (11th Cir. 1990).
To meet the prejudice prong of Strickland in a plea situation, petitioner must establish that "counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 59. Thus, while counsel can be deemed ineffective under Strickland for failing to provide proper advice during the plea process, petitioner must also demonstrate a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. Hill, 474 U.S. at 58-59. "It is not enough for [petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693.
When a district court considers a habeas petition, the state court's findings of historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption of correctness, while the performance and prejudice components are mixed questions of law and fact. Strickland, 466 U.S. at 698; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L. Ed. 2d 284 (2010). "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Richter, 562 U.S. at 105. As the Richter Court explained:
Id. (citations omitted).
Petitioner presented this claim to the state courts as Ground Three of his third amended Rule 3.850 motion. (Ex. N, pp. 168-172). The state circuit court denied relief on the merits. (Ex. N, pp. 178-179). The First DCA summarily affirmed. (Ex. Q).
The relevant decision for purposes of 28 U.S.C. § 2254 is the First DCA's summary affirmance, which is the final state court adjudication on the merits of petitioner's claim. 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."); Wilson v. Warden, Ga. Diagnostic Prison, ___ F.3d ___, 2016 WL 4440381, at *5 (11th Cir. Aug. 23, 2016) (defining the relevant decision for purposes of § 2254 review as the state appellate court's summary affirmance of the lower tribunal's decision). Where, as here, "the last adjudication on the merits provides no reasoned opinion, federal courts review that decision using the test announced in Richter." Wilson at *5. In Richter, the Court ruled that, "[w]here a state court's decision is unaccompanied by an explanation," a petitioner's burden under section 2254(d) is to "show[ ] there was no reasonable basis for the state court to deny relief." Id. at 98. "[A] habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the] Court." Id. at 102. Under that test, petitioner must establish that there was no reasonable basis for the Florida First DCA to affirm the denial of relief on his ineffective assistance claim.
The First DCA could reasonably have concluded that petitioner failed to establish deficient performance and prejudice under Strickland, because defense counsel made the same substantive arguments petitioner proposes. At sentencing, defense counsel argued:
(Ex. D, pp. 106-109). The State presented the testimony of Captain Rabon who encouraged the court to impose the maximum sentence of 15 years:
(Ex. D, p. 113). Defense counsel cross-examined Rabon concerning why, if petitioner was such a cancer to the community, law enforcement did not immediately arrest him after the first controlled buy instead of proceeding with several additional controlled buys. (Ex. D, p. 114). Captain Rabon explained: "Well, we made a number of, a series of controlled buys from Mr. Jackson to ensure that he would actually go to prison for the damages he's done to the community. . . . [O]ne buy would [have] left you, as his counsel, an opportunity to try to dismantle our investigation." (Id.).
At the conclusion of arguments and testimony, the trial court announced his intention to impose a 12-year sentence, explaining:
(Ex. D, pp. 117-119).
The sentencing transcript demonstrates that defense counsel made what petitioner describes as a "sentence manipulation" argument (law enforcement's decision not to arrest petitioner after the first controlled buy but to instead defer his arrest until after several other controlled buys were made) as well as petitioner's "comparative proportionality review" argument (that the court should impose the same or similar sentences as those received by Windell Peterson and Norris Wynn). The record conclusively refutes petitioner's claim that counsel failed to make these arguments.
As for counsel's alleged failure to move for a "downward departure", petitioner did not "score" a minimum prison sentence
As for counsel's alleged failure to move, during sentencing, to consolidate all of petitioner's pending cases including the instant case, a motion to consolidate would have been denied. In Florida, the "`rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are "connected" only by similar circumstances and the accused's alleged guilt in both or all instances.'" Ellis v. State, 622 So.2d 991, 999 (Fla. 1993) (quoting Wright v. State, 586 So.2d 1024, 1029 (Fla. 1991)). Counsel was not ineffective for failing to make a meritless argument for consolidation. See Freeman v. Attorney Gen., Fla., 536 F.3d 1225, 1233 (11th Cir. 2008) ("A lawyer cannot be deficient for failing to raise a meritless claim. . . ."); Bolender v. Singletary, 16 F.3d 1547, 1473 (11th Cir. 1994) ("[I]t is axiomatic that the failure to raise nonmeritorious issues does not constitute ineffective assistance.").
As a final note, petitioner mentions in the most conclusory of terms that he would not have pleaded guilty but for counsel's deficient arguments at sentencing. Petitioner fails, however, to connect counsel's arguments at sentencing to the voluntary and intelligent character of the plea he entered two weeks prior.
For all of the foregoing reasons, it would not have been unreasonable for the First DCA to conclude that petitioner failed to show deficient performance or prejudice under Strickland. Petitioner is not entitled to federal habeas relief on Ground Four.
Petitioner challenges the validity of his no contest plea on the ground that trial counsel misadvised him concerning the amount of time he would serve if he entered the plea and declined to contest the forfeiture of certain property. Specifically, petitioner alleges:
(Doc. 1, p. 14 in ECF). Respondent argues that the state court's rejection of this claim was consistent with clearly established Federal law. (Doc. 18, pp. 17-18).
The clearly established Federal law governing challenges to guilty pleas on grounds of ineffective assistance of counsel is set forth above.
Petitioner presented this claim to the state courts as Ground Four of his third amended Rule 3.850 motion. (Ex. N, pp. 173-174). The state circuit court denied relief on the merits, finding petitioner's claims conclusively refuted by the record (petitioner's written plea and the transcript of the plea hearing). (Ex. N, pp. 179). The First DCA summarily affirmed. (Ex. Q).
In light of petitioner's declarations on the plea form and during his plea colloquy, the First DCA could reasonably have concluded that petitioner's allegation — that counsel promised him he would not go to state prison if he entered the open plea and did not contest the forfeiture proceeding — was conclusively refuted by the record. By signing the plea form, petitioner attested that he knew his maximum sentence exposure was 15 years in state prison; that no one, including his attorney, made any promises or suggestions of any kind that if he pleaded no contest to the charge he would receive a light sentence, probation, or other form of leniency; and that he was not forced, threatened, persuaded, promised, induced or otherwise influenced to enter his open plea. (Ex. B). During the plea colloquy, petitioner acknowledged under oath that he understood he could receive the maximum sentence of 15 years in the Florida Department of Corrections. (Ex. C, p. 133). Petitioner also acknowledged that the determination of his sentence was at the sole discretion of the judge, and that the only agreement concerning his sentence was that the judge would order a pre-sentence investigation and conduct a sentencing hearing at which petitioner could present testimony and evidence on the appropriate sentence. (Id.). Petitioner affirmed that no one promised him anything or threatened him in any manner to get him to enter his open plea. (Id., p. 134).
On this record, petitioner cannot show that the state court's rejection of his claim was contrary to Federal law, involved an unreasonable application of Federal law, or was based on an unreasonable determination of the facts. Petitioner is not entitled to federal habeas relief on Ground Five.
Petitioner's final claim is that appellate counsel was ineffective for failing to argue on direct appeal that trial counsel was ineffective at sentencing (for the reasons outlined in Ground Four, above), and that the trial court "reversibly erred by explicitly refusing to consider the defense's evidence of sentences received by other similarly situated defendants." (Doc. 1, pp. 17-18 in ECF). Respondent argues that the state court's rejection of this claim was consistent with clearly established Federal law. (Doc. 18, pp. 18-19).
An ineffective assistance of appellate counsel claim is considered under the two-part test announced in Strickland. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L. Ed. 2d 756 (2000) (holding that Strickland is the proper standard for evaluating a claim that appellate counsel was ineffective). Petitioner must show (1) appellate counsel's performance was objectively unreasonable, and (2) there is a reasonable probability that, but for counsel's unreasonable performance, petitioner would have prevailed on his appeal. Smith, 528 U.S. at 285-86.
Petitioner presented this claim to the state court in his state habeas petition alleging ineffective assistance of appellate counsel. (Ex. V). The First DCA denied relief on the merits, without explanation. (Ex. W).
Petitioner's claim fails because, as discussed in Ground Four, trial counsel was not ineffective at sentencing. "Appellate counsel cannot be deemed ineffective for failing to raise issues `reasonably considered to be without merit.'" United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)). As for appellate counsel's failure to raise petitioner's proposed claim of trial court error, it would not have been unreasonable for the First DCA to conclude that petitioner failed to establish deficient performance or prejudice. The trial court's sentence was within the parameters provided by petitioner's plea and Florida law. Petitioner's contention that the trial court "explicitly refus[ed] to consider the defense's evidence of sentences received by other similarly situated defendants" is belied by the sentencing transcript. The trial court considered defense counsel's argument but found the defendants whom the defense considered similar to be quite different. (Ex. D).
Petitioner has not shown that the state court's rejection of his claim was contrary to, or involved an unreasonable application of, the Strickland standard. Petitioner is not entitled to federal habeas relief on Ground Six.
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If a certificate is issued, "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.
The petitioner in this case fails to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L. Ed. 2d 542 (2000) (explaining the meaning of this term) (citation omitted). Accordingly, the court should deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED:
1. That the petition for writ of habeas corpus (doc. 1), challenging the judgment of conviction and sentence in State of Florida v. Michael Fitzgerald Jackson, Jackson County Circuit Court Case No. 09-CF-744, be DENIED.
2. That the clerk be directed to close the file.
3. That a certificate of appealability be DENIED.
