JOHN ANTOON, II, District Judge.
Donald Merrill Clumm ("Petitioner") filed a Petition for Writ of Habeas Corpus ("Petition," Doc. 1) pursuant to 28 U.S.C. § 2254, alleging seven claims for relief based on ineffective assistance of counsel at trial in violation of the Sixth Amendment to the United States Constitution. Petitioner also filed a supporting Memorandum of Law (Doc. 3). Respondents filed a Response to Petition ("Response," Doc. 13) and a Supplemental Response to Petitioner ("Supplemental Response," Doc. 21) in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner filed a Reply (Doc. 27) to the Response and Supplemental Response. For the following reasons, the Court concludes that Petitioner is not entitled to relief on his claims.
The state trial court sentenced Petitioner to 4 years of incarceration and 6 years of probation for the offense of aggravated battery in Seminole County, Florida on January 4, 2010. (Doc. 14-1 at 30; case number 2008CF005107A). Judge Marlene Alva presided over this proceeding. (Id. at 28). Petitioner was released to probation on January 23, 2012. (Id. at 41). On April 13, 2012, while on probation, Florida's Department of Corrections filed an affidavit of violation of probation alleging that Petitioner had violated the conditions of his probation in three ways, the most serious violation being committing the criminal offense of burglary of a conveyance. (Id. at 41-42).
Petitioner made his first appearance on the violation of probation on April 13, 2012. (Id. at 40). On May 14, 2012, the state filed an information charging Petitioner with a new substantive offense for the burglary of a conveyance (Count One). (Id. at 68). This new offense was assigned case number 12CF1095A. At Petitioner's violation of probation arraignment on May 29, 2012 before Judge Kenneth Lester, the violation was consolidated with case number 12CF1095A. (Id. at 44). The parties agreed to this consolidation.
The case proceeded to trial before Judge Lester on August 29, 2012 and a jury found Petitioner guilty of a burglary of a conveyance. (Id. at 117). The trial court adjudicated Petitioner guilty of that offense (Doc. 14-3 at 324) and then found Petitioner in willful violation of his probation on the aggravated battery charge. (Id. at 325; Doc. 14-1 at 50). On October 10, 2012, the trial court sentenced Petitioner as a violent career criminal to a term of fifteen years imprisonment for the burglary of a conveyance offense. (Doc. 14-1 at 56, 125-28). The trial court also sentenced Petitioner to a term of fifteen years imprisonment for the violation, to be served consecutively to the sentence imposed for the burglary offense.
Petitioner filed an appeal of the October 10, 2012 order adjudicating Petitioner guilty and imposing the sentences for the burglary offense and the violation with Florida's Fifth District Court of Appeal. (Doc. 14-2 at 58). The Fifth District Court of Appeal affirmed per curiam. (Doc. 14-4 at 94).
Petitioner next filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), which the trial court granted only to the extent that the violent career criminal designation was stricken from the sentencing order as to the violation of probation. (Doc. 14-5 at 43-51). The Fifth District Court of Appeal affirmed per curiam. (Id. at 65).
Petitioner then filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which the trial court denied. (Doc. 14-4 at 97-119). Petitioner appealed the denial, and the Fifth District Court of Appeal affirmed per curiam. (Doc. 14-5 at 35).
Finally, Petitioner filed a second Rule 3.850 motion, which the trial court dismissed as an abuse of process. (Id. at 72-111). The Fifth District Court of Appeal affirmed per curiam. (Id. at 132).
Pursuant to the AEDPA, 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 United States Supreme Court "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. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was described in Williams:
Williams, 529 U.S. at 413. 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."
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 decision applicable to an ineffective-assistance claim is Strickland v. Washington, 466 U.S. 668 (1984). See Premo v. Moore, 562 U.S. 115, 121 (2011). To make a successful claim of ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. In determining whether counsel gave adequate assistance, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Counsel's performance is deficient only if it falls below the wide range of competence demanded of attorneys in criminal cases. See id. at 687-88. To make such a showing, a defendant must demonstrate that "no competent counsel would have taken the action that his counsel did take." United States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003) (quotation omitted).
Prejudice 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "Conclusory allegations of ineffective assistance are insufficient." Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) (quotation omitted). In light of the general principles and presumptions applicable to a claim of ineffective assistance of counsel, the cases in which a habeas petitioner can prevail are "few and far between." Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc).
Petitioner claims trial counsel was ineffective for failing to advise him "of the maximum prison exposure he faced if he refused the State's plea offer." (Doc. 1 at 5). According to Petitioner, he would have accepted the State's plea offer if he had known that the rejection thereof "exposed him to 30 years in prison." (Id. at 6). It does not appear that this claim was raised with the state courts and, thus, it is procedurally defaulted. However, Petitioner argues that this claim should be considered pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).
In this case, the trial court held a Pretrial Conference on August 16, 2012, which appeared to involve the burglary of a conveyance case (Case Number 2012-CF-1095) and the violation of probation case (Case Number 2008-CF-5107).
Respondents argue that "Petitioner was specifically informed that he was facing a VCC sentence with a minimum mandatory sentence of ten years. He was not facing a possible thirty years sentence and it does not appear he was ever told this." (Doc. 21 at 5). However, it is Petitioner's position that, by rejecting the plea offer, he was actually facing the possibility of a sentence of thirty years—fifteen years in the burglary of a conveyance case and fifteen years in the violation of probation case. According to Petitioner, his counsel never informed him of the possibility of a thirty-year sentence. (Doc. 1 at 6). Petitioner states that he would have accepted the offer of seventy months if he had been properly advised by counsel of the actual sentence he was facing. (Id.).
The Court concludes an evidentiary hearing is warranted on Claim One to determine whether Petitioner is entitled to relief under Martinez.
Petitioner next claims that trial counsel was ineffective for failing to advise him that he was "eligible to be sentence[d] as a VCC during plea negotiations." (Doc. 1 at 8). This claim was raised in Petitioner's first Rule 3.850 motion, and it was denied.
This claim is refuted by the record. Petitioner acknowledges that on August 16, 2012 his counsel showed him "a copy of the `notice to seek sentencing as a Violent Career Criminal.'" (Id.). Petitioner expressed to his counsel "I don't qualify for that." (Id.).
Petitioner has failed to demonstrate that counsel acted deficiently with regard to this matter or that he sustained prejudice. He has failed to demonstrate that the state court's decision rejecting his claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, Claim Two is denied.
Petitioner states that trial counsel was ineffective for failing "to file a timely motion to suppress [his] Miranda statement." (Doc. 1 at 9). Petitioner claims that his statement was involuntary because he was promised leniency if he confessed. (Id.). This claim was raised in Petitioner's Rule 3.850 motion and was denied.
At trial, Gregory Luge of the Seminole County Sheriff's Office testified that Petitioner voluntarily accompanied him to the police station for an interview, but that Petitioner was not arrested until after the conclusion of the interview. (Doc. 14-3 at 239, 250). Prior to the interview, Deputy Luge advised Petitioner of his Miranda
The interview was recorded and admitted into evidence. (Doc. 14-3 at 243). At no point in the recording did Deputy Luge make any promises of leniency. Deputy Luge asked Petitioner about the events of that evening, and Petitioner admitted entering the vehicle and "look[ing] in it," although he denied taking anything from the vehicle. (Id. at 245-46).
Petitioner has failed to demonstrate that there was any basis upon which to file a motion to suppress. There is no evidence that Deputy Luge made any promises of leniency, and Petitioner freely and voluntarily waived his Miranda rights. Petitioner has failed to demonstrate that counsel acted deficiently with regard to this matter or that he sustained prejudice. Petitioner has thus failed to demonstrate that the state court's decision rejecting this claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, Claim Three is denied.
Petitioner asserts that the judge who presided over his 2008 aggravated battery charge should have been the judge that presided over his violation of probation in that case. He thus maintains that his trial counsel was ineffective for failing to "object to the appointment of a successor judge." (Doc. 1 at 11). This claim was raised in both Petitioner's Rule 3.850 motion and his 3.800(a) motion. It was denied on the basis that Petitioner was "not entitled to have the original judge preside over subsequent revocation proceedings." (Doc. 14-4 at 118; see also, Id. at 136, citing Scott v. State, 909 So.2d 364 (Fla. 5th DCA 2005)). This court agrees.
Petitioner was not entitled to have the original judge preside over the revocation proceedings. Thus, counsel had no basis for objection. Petitioner has failed to demonstrate that counsel acted deficiently with regard to this matter or that he sustained prejudice. Petitioner has failed to demonstrate that the state court's decision rejecting his claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, Claim Four is denied.
Petitioner's claim five is contradictory. Petitioner first asserts that "[d]efense counsel was ineffective in that he advised the Petitioner to not testify because his prior criminal record could be used against him." (Doc. 1 at 13). He then alleges that defense counsel told Petitioner not to testify without any explanation as to why. (Id.) Petitioner also states "[d]efense [counsel] failed to advise Petitioner that the nature of his prior offenses could not be used against him if he were to testify." (Id.). This claim was raised in Petitioner's Rule 3.850 motion.
The day jury selection for Petitioner's trial took place, the trial court discussed the decision to testify with Petitioner and his counsel:
At the preliminary charge conference, the trial court again discussed with Petitioner that it was his decision whether to testify:
Finally, after the State rested, the trial court conducted an inquiry of Petitioner as to his decision to testify.
It is clear that, on several occasions, the trial court discussed the decision to testify with Petitioner and that Petitioner had discussed the matter with his counsel. Petitioner informed the trial court that is was his "personal decision" not to testify after discussing the matter with his counsel. (Id.).
Petitioner has failed to demonstrate that counsel acted deficiently with regard to this matter or that he sustained prejudice. As such, Petitioner has failed to demonstrate that the state court's decision rejecting his claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, Claim Five is denied.
Petitioner states that trial counsel "failed to move for a mistrial on two separate occasions when State witnesses violated the motion in limine." (Doc. 1 at 14). This claim was raised in Petitioner's Rule 3.850 motion, and it was denied because such a motion would not have been granted. (Doc. 14-4 at 119).
Petitioner was charged with a single count of burglary of a conveyance. Prior to trial, Defendant's Motion in Limine excluding testimony that Petitioner was trying to enter other cars was granted. (Doc. 14-3 at 168). During the trial, there were three statements made that violated the trial court's pretrial order. Petitioner's counsel objected and moved for a mistrial with regard to the first violation. (Id.). The trial court denied the request for a mistrial but provided the jury with a corrective instruction. (Id. at 168-70). Petitioner's counsel made an objection with regard to the second violation, and the trial court again provided the jury with a corrective instruction. (Id. at 185-86). Petitioner's counsel also made an objection with regard to the third violation in which the deputy mentioned receiving a call about someone "possibly trying to break in to [sic] a vehicle or vehicles." (Id. at 213-14). The trial court overruled the objection, but the deputy clarified that the incident related to a single vehicle. (Id. at 214).
Petitioner's counsel moved for a mistrial on the first violation and objected to the last two violations. The trial court denied the request for a mistrial, overruled the objections, provided curative instructions to the jury, and ensured, as to the last violation, that the deputy clarified his statement. Petitioner's counsel's actions were not deficient with regard to this matter, and Petitioner has not demonstrated prejudice.
Petitioner has failed to demonstrate that the state court's decision rejecting his claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, Claim Six is denied.
Petitioner argues that the "cumulative effect" of counsel's errors deprived him of a fair trial. (Doc. 1 at 16). However, none of Petitioner's individual claims of error or prejudice has any merit, and therefore the Court has nothing to accumulate. The Eleventh Circuit Court of Appeals has made clear that when "[t]here [is] no error in any of the [trial] court's rulings, the argument that cumulative trial error requires that this Court reverse [the defendant's] convictions is without merit." Morris v. Sec'y, Dep't of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Moreover, the Court has considered the cumulative effect of Petitioner's ineffective assistance claims and concludes that he cannot demonstrate cumulative error sufficient to entitle him to habeas relief. Consequently, Claim Seven is denied.
Allegations not specifically addressed herein are without merit.
Accordingly, it is
