CARLOS E. MENDOZA, District Judge.
THIS CAUSE is before the Court on Petitioner Sheldon Gayle's Petition for Writ of Habeas Corpus ("Petition," Doc. 1) filed by counsel pursuant to 28 U.S.C. § 2254. Respondents filed a Response to Petition ("Response," Doc. 6) in compliance with this Court's instructions. Petitioner filed a Reply to Response ("Reply," Doc. 10).
Petitioner asserts six grounds for relief. For the following reasons, the Petition will be denied.
A grand jury charged Petitioner with first degree murder (Count One), unauthorized possession or use of a driver's license (Count Two), and resisting an officer without violence (Count Three). (Doc. 7-1 at 30-31). A jury found Petitioner guilty of Counts Two and Three but was unable to reach a verdict as to Count One. (Doc. 7-2 at 51-53). The state court declared a mistrial as to Count One. (Id. at 54). During jury selection in the second trial, Petitioner entered a plea of guilty to the lesser offense of second-degree murder pursuant to a plea agreement. (Doc. Nos. 7 at 113-29; 7-2 at 114-16). The trial court sentenced Petitioner to a 260.4 month term of imprisonment as to Count One, a three year of imprisonment as to Count Two, and 827 days of imprisonment as to Count Three with all sentences to run concurrently. (Doc. Nos. 7-1 at 12; 7-2 at 88-89). Petitioner appealed, and the Fifth District Court of Appeal of Florida ("Fifth DCA") affirmed per curiam. (Doc. 7-4 at 184).
Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. (Doc. 7-6 at 25-45). The state court conducted an evidentiary hearing and denied the motion. (Doc. 7-8 at 109-15). Petitioner appealed, and the Fifth DCA affirmed per curiam. (Doc. 7-9 at 120).
Pursuant to the Antiterrorism Effective Death Penalty Act, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings of the Supreme Court of the United States "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).
"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the `contrary to' and `unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
Petitioner asserts counsel rendered ineffective assistance by improperly advising him to reject the State's prior plea offers.
Petitioner raised this ground in his Rule 3.850 motion. The state court denied relief. (Doc. 7-8 at 110-11). The state court reasoned that counsel's inability to "provide perfect advice about the wisdom of accepting a plea offer" did not establish ineffective assistance and the State could have rescinded the plea offers even if Petitioner had accepted one of the earlier offers. (Id.).
The right to effective assistance of counsel extends to plea negotiations. Lafler v. Cooper, 566 U.S. 156, 162 (2012). "[D]efense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused" and is deficient for failing to do so. Missouri v. Frye, 566 U.S. 134, 145 (2012). Furthermore, "[i]f a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Id. at 168. The two-part test enunciated in Strickland applies to claims that counsel was ineffective during plea negotiations. Id. at 163 (applying Strickland's two-part test to petitioner's claim that counsel was ineffective for advising him to reject a plea offer). "Trials are difficult to predict, and advising a criminal defendant whether to accept or reject a plea offer can be a tricky proposition." United States v. Martini, 31 F.3d 781, 782 n.1 (9th Cir. 1994). To prevail under Strickland, "the advice would have to fall outside a `wide range of reasonable professional assistance.'" Id. (quoting Strickland, 466 U.S. at 689). "`[W]ithout evidence that [counsel] gave incorrect advice or evidence that he failed to give material advice, [a defendant] cannot establish that his lawyer's performance was deficient.'" Mostowicz v. United States, 625 F. App'x 489, 494 (11th Cir. 2015) (quoting Burt v. Titlow, 571 U.S. 12, 17 (2013)).
To demonstrate prejudice where a plea offer has lapsed or been rejected because of deficient performance,
Frye, 566 U.S. at 147.
With respect to counsel's advice regarding the two conveyed plea offers, Petitioner has not established that counsel provided deficient performance.
Regarding counsel's failure to convey the manslaughter offer, Petitioner has not established that prejudice resulted. As noted by Petitioner, the manslaughter plea offer was the first plea offer and would have subjected Petitioner to a maximum fifteen-year sentence. (Doc. 10 at 9). The State offered this plea to Petitioner during the course of his second trial. (Doc. 7-2 at 180-84). At that time, counsel told the trial court that he had not conveyed the offer to Petitioner. Consequently, the trial court advised Petitioner of the offer and ensured he was aware of it. (Id.). Petitioner advised the court that he understood the offer and indicated he did not want to accept it. (Id. at 184-85). Petitioner subsequently rejected a twelve-year plea offer. Petitioner, therefore, has not shown that a reasonable probability exists that he would have accepted the manslaughter plea offer had counsel conveyed it to him. Accordingly, Ground One will be denied.
Petitioner maintains counsel rendered ineffective assistance by misinforming him of the sentence he would receive by entering the plea. (Doc. 1 at 7). According to Petitioner, counsel advised him that he would receive a sentence of seven years if he entered the plea and that he could withdraw his plea within thirty days if he wanted to proceed to trial. (Id.).
Petitioner raised this ground in his Rule 3.850 motion. The state court denied relief but did not address Petitioner's allegation concerning counsel's advice on withdrawing the plea. (Doc. 7-8 at 111-12). In denying the portion of the claim concerning counsel's advice about the sentence Petitioner would receive, the state court determined that the record established that Petitioner knew he could be sentenced to a maximum term of 265.5 months in prison if he entered the plea and that no promises had been made regarding the sentence. (Id. at 112).
At the plea hearing, Petitioner affirmed that he understood that the maximum sentence he could receive under the plea agreement was a 265.5 month term of imprisonment. (Doc. 7 at 115). The trial judge explained that he had discretion to determine the sentence to be imposed, and Petitioner affirmed that no one had promised him he would receive less than 265.5 months. (Id. at 117, 120). Petitioner's representations 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). Consequently, the state court's denial of this portion of the claim is not contrary to, or an unreasonable determination of, clearly established federal law.
Furthermore, pursuant to Florida law, "`[t]he court may in its discretion, and shall on good cause,' permit a no contest or guilty plea to be withdrawn at any time prior to sentencing." Crane v. State, 69 So.3d 357, 359 (Fla. 2d DCA 2011) (quoting Fl. R. Crim. P. 3.170(f)). "Good cause `has been found to exist when the defendant's plea was `infected by misapprehension, undue persuasion, ignorance, or was entered by one not competent to know its consequence or that it was otherwise involuntary, or that the ends of justice would be served by withdrawal of such plea.'" Id. (quoting Lehmkuhle v. State, 20 So.3d 971, 973 (Fla. 2d DCA 2009). Consequently, Petitioner could have moved to withdraw his plea after he pleaded guilty, and in fact did so, and such a motion would have been granted in the trial court's discretion if good cause existed to withdraw the plea. Assuming counsel advised Petitioner that he could withdraw his plea, therefore, this advice was not entirely erroneous.
More importantly, Petitioner has not demonstrated that prejudice resulted from counsel's purported advice. Petitioner knew that he was facing a mandatory sentence of life in prison if convicted as charged at trial and a minimum sentence of twenty-five years if convicted of committing a lesser included offense with a firearm. (Doc. 7 at 113-15). Petitioner understood he was giving up his right to proceed to trial by entering the plea, and he affirmed that no one had promised him anything that was not in the plea agreement to enter the plea. (Id. at 119-20). Given that Petitioner was subject to a mandatory term of life in prison if convicted at trial as charged and his affirmation that there was nothing promised to induce him to enter the plea, a reasonable probability does not exist that Petitioner would have proceeded to trial but for counsel's purported erroneous advice. Accordingly, Ground Two will be denied.
Petitioner asserts counsel rendered ineffective assistance by moving to disqualify the judge. (Doc. 1 at 9-10). In support of this ground, Petitioner argues that he was prejudiced when the trial judge recused himself, on the defense's motion, prior to ruling on Petitioner's motion to withdraw the plea and prior to sentencing. (Id. at 10).
Petitioner raised this ground in his Rule 3.850 motion. The state court denied relief. (Doc. 7-8 at 112). The state court reasoned that defendants have no right to any particular judge to hear their case. (Id.).
The state court's denial of this ground is not contrary to, or an unreasonable application of, federal law. After Petitioner entered his plea, defense counsel learned that the judge was acquainted with the owner of the boxing club where the victim trained and knew of the victim's status as a star boxer. (Doc. 7-4 at 97-99). Defense counsel moved to disqualify the trial judge on this basis. (Id.). Along with the motion, counsel filed Petitioner's affidavit in which Petitioner attested that he believed the judge "does or may have a prejudice or bias adverse to my interests in this matter. . . [and] fear . . . that I will not receive a fair hearing at sentencing on June 8, 2010." (Id. at 101-02).
From the record, defense counsel had a legal basis to move to disqualify the judge. Furthermore, based on Petitioner's sworn statement, at the time counsel filed the motion, Petitioner was concerned that he would not receive a fair sentencing hearing unless the judge recused himself. Consequently, a reasonable attorney could have determined that moving for the judge's recusal was warranted. Moreover, Petitioner has not demonstrated that a reasonable probability exists that the outcome of the proceeding would have been different had counsel not moved for the trial judge to withdraw. It is purely speculative that but for the judge's withdrawal, Petitioner would have received a lesser sentence or that his motion to withdraw his guilty plea would have been granted. Accordingly, Ground Three will be denied.
Petitioner asserts counsel rendered ineffective assistance by improperly advising him regarding the availability and testimony of a key State witness. (Doc. 1 at 12). According to Petitioner, counsel erroneously told him that Rodney Thorpe ("Thorpe"), the sole eyewitness to the shooting, had been arrested, was in jail, and was available to testify as a State witness and that Thorpe's testimony would result in a guilty verdict and life sentence. (Id. at 13). Petitioner maintains that Thorpe was not in custody and, unbeknownst to Petitioner, Thorpe had notified the trial judge that he had lied during the first trial. (Id.).
Petitioner raised this ground in his Rule 3.850 motion. The state court denied relief after an evidentiary hearing. (Doc. 7-8 at 113-14). The state court found defense counsel's testimony that he was aware that Thorpe had recanted his trial testimony and discussed the matter with Petitioner prior to the entry of the plea to be credible. (Id. at 113).
At the evidentiary hearing, defense counsel testified that he told Petitioner in advance of his second trial about Thorpe's letter in which Thorpe recanted his trial testimony. (Doc.7-5 at 14, 24). Defense counsel adamantly maintained that Petitioner knew about Thorpe's recantation prior to entering the plea. (Id. at 16). Defense counsel further testified that he knew Thorpe was not in jail at the time of the second trial, and counsel denied telling Petitioner that Thorpe was in jail before Petitioner entered the plea. (Id. at 12). Defense counsel also denied telling Petitioner that he would receive a life sentence if Thorpe testified. (Id. at 13).
The state court made a factual determination that counsel's testimony was credible. "Credibility determinations are factual findings and therefore `are presumed to be correct absent clear and convincing evidence to the contrary.'" Guerra v. Sec'y, Dep't of Corr., 271 F. App'x 870, 871 (11th Cir. 2008) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Although Petitioner testified that he did not know about Thorpe's recantation until after he entered the plea, Petitioner has not demonstrated by clear and convincing evidence that the state court's factual determination is incorrect. Consequently, Petitioner has not demonstrated that counsel was deficient or that a reasonable probability exists that Petitioner would not have entered the plea but for counsel's purported advice. Accordingly, Ground Four will be denied pursuant to § 2254(d).
Petitioner contends counsel rendered ineffective assistance by failing to investigate a witness and subpoena a material witness for trial. (Doc. 1 at 15). According to Petitioner, counsel failed to investigate prior to the entry of the plea to determine what testimony Nashida Gayle ("Gayle") would give.
Petitioner raised this ground in his Rule 3.850 motion. The state court denied relief. (Doc. 7-8 at 114-15). The state court noted that Petitioner was aware of Gayle's purported recantation when he entered his plea and that Taylor testified at the first trial that he did not see who fired the gun.
Petitioner has not established that the state court's denial of this ground is contrary to, or an unreasonable application of, clearly established federal law. Petitioner has not explained exactly what testimony Gayle would have provided at trial other than that she would have recanted her earlier testimony. "[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim." United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (footnotes omitted)).
Furthermore, at the evidentiary hearing, defense counsel testified during a proffer that he had spoken to Gayle prior to the second trial date. (Doc. 7-5 at 16, 40). Defense counsel said that he knew Gayle was available to testify for the defense. (Id. at 16). Defense counsel also indicated that Taylor used a false name when he gave his statement to police and neither the State nor the defense was able to locate him.
More importantly, there is no indication that Petitioner was unaware at the time he entered his plea of Gayle and Taylor's purported testimony. Nevertheless, at the plea hearing, Petitioner affirmed that he understood that by entering the plea he was giving up the right to call and subpoena witnesses to testify for him and to present a defense to the offense. (Doc. 7 at 119-20). Petitioner further affirmed that he was satisfied with his attorney and never complained that counsel failed to investigate or subpoena any witnesses. See id. at 113. Petitioner has not demonstrated that a reasonable probability exists that he would not have entered the plea but for counsel's failure to investigate these witnesses or subpoena Taylor. Accordingly, Ground Five will be denied.
Petitioner asserts that the cumulative effect of counsel's deficiencies resulted in prejudice. (Doc. 1 at 17). Petitioner raised this ground in his Rule 3.850 motion. The state court denied relief because it found there was no merit to any Petitioner's grounds for relief. (Doc. 7-8 at 115).
"The Supreme Court has not directly addressed the applicability of the cumulative error doctrine in the context of an ineffective assistance of counsel claim." Forrest v. Fla. Dep't of Corr., 342 F. App'x 560, 564 (11th Cir. 2009). The Supreme Court has held, however, in relation to a claim of ineffective assistance of counsel, that "`there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.'" Id. (quoting United States v. Cronic, 466 U.S. 648, 659 n. 26 (1984)).
Petitioner has not demonstrated that counsel rendered ineffective assistance in any of his grounds. Consequently, Petitioner's claim of cumulative error fails. See, e.g., Borden v. Allen, 646 F.3d 785, 823 (11th Cir. 2011) ("Because Borden has not sufficiently pled facts that would establish prejudice—cumulative or otherwise—we decline to elaborate further on [a cumulative-effect ineffective assistance of counsel claim] for fear of issuing an advisory opinion on a hypothetical issue."). Accordingly, Ground Six will be denied pursuant to § 2254(d).
Any of Petitioner's allegations not specifically addressed herein have been found to be without merit.
This Court should grant an application for certificate of appealability only if Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec'y Dep't of Corr., 568 F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal habeas petition on procedural grounds without reaching the underlying constitutional claim, a certificate of appealability should issue only when a petitioner demonstrates "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.; Lamarca, 568 F.3d at 934. However, a prisoner need not show that the appeal will succeed. Miller-El, 537 U.S. at 337.
Petitioner has not demonstrated that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot show that jurists of reason would find this Court's procedural rulings debatable. Petitioner has failed to make a substantial showing of the denial of a constitutional right. Thus, the Court will deny Petitioner a certificate of appealability.
Accordingly, it is hereby
