VIRGINIA M. HERNANDEZ COVINGTON, District Judge.
Petitioner Thomas Medlin, a prisoner in the Florida Department of Corrections proceeding pro se, initiated this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1). Medlin challenges his convictions entered by the Circuit Court for the Tenth Judicial Circuit, Polk County, Florida, in 2010. Respondent filed a response (Doc. 7), in which it concedes the timeliness of Medlin's petition. Medlin filed a reply (Doc. 13). Upon review, Medlin's petition must be denied.
Medlin entered pleas of nolo contendere to fifty counts of possession of photographs of sexual performance by a child in case number 2005CF-007623. (Doc. 9, Ex. 1.) He was sentenced to an overall term of 16.5 years in prison. The written sentence provides for: sentences of five years on counts one through fifteen concurrent with each other; a sentence of five years on count sixteen, consecutive to the sentence on count one; sentences of five years on counts seventeen through thirty-one, concurrent with each other and with count sixteen; a sentence of five years on count thirty-two, consecutive with count sixteen; sentences of five years on counts thirty-three through forty-nine, concurrent with each other and with the sentence on count thirty-two; and a sentence of one year and six months on count fifty, consecutive to the sentence on count thirty-two. (Doc. 9, Ex. 1.) Medlin did not file a direct appeal.
Medlin filed a motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(a), in which he sought credit for time served in addition to the 86 days of credit he received at sentencing. (Doc. 9, Ex. 2.) The state court granted Medlin's motion, awarding him a total of 453 days of jail credit. (Doc. 9, Ex. 3.) Medlin filed a motion for rehearing, requesting that this amount of credit be applied to each of the "four groups" into which "the counts were broken up" for sentencing. (Doc. 9, Ex. 4.) The state court granted his motion only to the extent that the 453 days of jail credit were applied to the concurrent sentences for counts one through fifteen. (Doc. 9, Ex. 5.) The state appellate court per curiam affirmed, with citations, the state court's orders. (Doc. 9, Ex. 8.)
Medlin next sought postconviction relief under Florida Rule of Criminal Procedure 3.850, raising three claims for relief. (Doc. 9, Ex. 11, pp. 26-49.) The state court entered an order dismissing claim 2 of the motion with leave to amend and directing the State to respond to claims 1 and 3. (Id., pp. 50-51.) The State filed its response. (Id., pp. 52-54.) Medlin filed an amended version of claim 2. (Id., pp. 55-60). The state court dismissed his amendment, however, because it was not sworn in accordance with the requirements of Rule 3.850. (Id., p. 61.) Medlin filed a second amended version of claim 2 and a reply to the State's response. (Id., pp. 62-78.)
The state court entered an order granting an evidentiary hearing on claim 1 and denying claim 2. (Id., pp. 79-81.) Following the hearing, the state court entered an order denying claim 1. (Id., pp. 176-77.) This order also denied claim 3, stating that the court intended to deny claim 3 in its earlier order denying claim 2 and had addressed its reasons in that earlier order. The state appellate court per curiam affirmed the denial of Medlin's postconviction motion. (Doc. 9, Ex. 15.)
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody "in violation of the Cons titution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court review of a state court adjudication, states in pertinent part:
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:
"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "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." Harrington v. Richter, 562 U.S. 86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide."). 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, 529 U.S. at 412.
The purpose of federal review is not to re-try the case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Cone, 535 U.S. at 693. In other words, "AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, ___ U.S. ____, 131 S.Ct. 1388, 1398 (2011) ("This is a `difficult to meet,' . . . and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt' . . . .") (citations omitted).
In a per curiam decision without a written opinion, the state district court of appeal affirmed the denial of Medlin's postconviction motion. The state appellate court's per curiam affirmance warrants deference under Section 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.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003). 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.").
Review of the state court decision is limited to the record that was before the state court:
Pinholster, 131 S. Ct. at 1398. Medlin bears the burden of overcoming by clear and convincing evidence a state court factual determination. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).
Medlin asserts ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984):
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998). In order to show deficient performance, a petitioner must demonstrate that "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Strickland, 466 U.S. 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. Additionally, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.
Medlin 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. When the case involves a plea, the prejudice inquiry focuses on whether counsel's 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).
Counsel's strategic choices "made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. A petitioner cannot meet his burden merely by showing that counsel's choices were unsuccessful:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
Sustaining a claim of ineffective assistance of counsel on federal habeas review is very difficult 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 Pinholster, 131 S. Ct. at 1410 (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA.").
If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.").
Medlin claims that trial counsel was ineffective for providing affirmative misadvice. He claims counsel misinformed him about the amount of credit for time served he would receive and, therefore, the length of time he would spend in prison. Medlin characterizes his sentence as "composed of 4 tiers of 5 years, 5 years, 5 years, and 1.5 years each consecutive to the previous sentence." (Dkt. 1, p. 4.) Medlin states that based on counsel's advice, he believed he would receive 453 days of credit for time served on each consecutive tier of his sentence, for a total of 1,812 days. Medlin further asserts that counsel's erroneous advice led him to enter his plea.
Under Florida law, a prisoner must be credited with all time spent in jail before sentencing. § 921.161(1), Fla. Stat. ("[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence."). As addressed, Medlin's post-sentencing motion for jail credit was granted to the extent he was awarded credit for 453 days of time served on the concurrent sentences for counts one through fifteen. (Doc. 9, Ex. 3.) The state court denied his request that this amount be applied to all four tiers of his sentence. (Doc. 9, Exs. 4, 5.)
The state appellate court affirmed the state court's orders. (Doc. 9, Ex. 8.) It cited, without further discussion, Steadman v. State, 23 So.3d 811 (Fla. 2d DCA 2009) and Murray v. State, 36 So.3d 792 (Fla. 1st DCA 2010). These decisions provide that a defendant is entitled to jail credit on concurrent sentences, but not on consecutive sentences.
Medlin raised this claim of ineffective assistance of counsel in his postconviction motion. The state court conducted an evidentiary hearing on this claim. At the hearing, Medlin testified his understanding of jail credit was "an inducement" and the "final reason" he decided to take the plea. (Doc. 9, Ex. 11, pp. 116, 118.) Medlin testified that he recalled counsel telling him that the sentence was "set up" so that he would receive the credit on each tier. (Id., pp. 117, 123, 124.) Medlin stated that after sentencing, he asked his attorney for case law on this issue but did not hear from her again. (Id., p. 119.) He testified that he would not have entered the plea had he known he would not have received jail credit as he was led to believe by counsel. (Id., p. 121.)
Medlin also testified that he understood he was initially charged with 100 counts of possessing child pornography, that the State potentially could have brought another 300 counts against him, and that he believed he faced "[a]nywhere from 33 years to 500 years." (Id., p. 129.) Medlin testified he was willing to put the images of child pornography before a jury in the hope that they would be "sympathetic" because he had "two degrees as an Anthropologist" and studied under "one of the leading sex researchers in the Nation." (Id., pp. 134-35.) Medlin answered affirmatively when asked whether it was his position that "because [he] didn't get approximately 45 months of credit that [he was] willing to risk 135 years in prison." (Id., p. 136.)
Counsel testified that if Medlin did not accept a plea, the State would consider proceeding with the additional 300 counts, and if Medlin pleaded "straight up," the State would proceed with all 100 originally-charged counts. (Id., p. 140.) Counsel relayed this information to Medlin. (Id., pp. 140-41.) She testified that she and the prosecutor "went back and forth" over a matter of months about a plea agreement. (Id., pp. 141-42.) Counsel testified that Medlin wrote her an undated letter about plea offers:
(Id., pp. 143-44.) Counsel again mentioned the letter in her testimony, indicating that it provided, "if [the State does not] accept either of these two options then let's just go to trial and get me sentenced to life." (Id., p. 150.)
Counsel's evidentiary hearing testimony further reflects that she recalled telling Medlin at some point that she would try to find out whether jail credit would apply to each tier of his sentence. She testified to this effect several times:
(Id., p. 143.)
(Id., p. 146.)
(Id., pp. 153-54.)
Counsel also testified concerning a letter she received from Medlin after sentencing, in which he asked her if she found any case law to support what he characterized as counsel's "theory that [his] time served might be applied to all four sentences." (Id., pp. 146-47, 155.) She believed, but was not certain, that she sent Medlin a copy of Ransone v. State, 48 So.3d 692 (Fla. 2010).
After the evidentiary hearing, the state court denied Medlin's claim:
(Doc. 9, Ex. 11, pp. 176-77) (footnote omitted).
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).
Accordingly, "[a] defendant who enters a plea of guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained." Wilson v. United States, 962 F.3d 996, 997 (11th Cir. 1992). A plea does not bar review of a claim of ineffective assistance of counsel to extent the alleged ineffectiveness bears upon the voluntariness of the plea itself. See Hill, 474 U.S. at 56-57 ("[A] defendant who pleads guilty upon the advice of counsel "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within" the range of competent assistance); Stano 921 F.2d at 1150-51 (11th Cir. 1991) ("The Court allows only challenges to the voluntary and intelligent entry of the plea if a convicted defendant can prove `serious derelictions' in his counsel's advice regarding the plea.") (citation omitted).
The state court found credible counsel's testimony that she did not provide Medlin a definite answer regarding jail credit before the plea, and found not credible Medlin's testimony that misadvice from counsel induced him into entering the plea. A credibility finding is a question of fact. Martin v. Kemp, 760 F.2d 1244, 1247 (11th Cir. 1985) ("Factual issues include . . . credibility determinations."). The state court's determination that counsel's testimony was credible is presumed correct. Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) ("We must accept the state court's credibility determination and thus credit [the attorney's] testimony over [the petitioner's]."), cert. denied, 526 U.S. 1047 (1999); Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993) ("Findings by the state court concerning historical facts and assessments of witness credibility are . . . entitled to the same presumption accorded findings of fact under 28 U.S.C. § 2254(d)."), cert. denied, 513 U.S. 1161 (1995).
Medlin fails to show by clear and convincing evidence that the state court's finding of fact with regard to counsel's credibility was incorrect. Counsel did not testify that she actually told Medlin he would receive jail credit on all four consecutive tiers of his sentence. Rather, counsel provided testimony consistent with the conclusion that she did not decisively advise Medlin on the jail credit issue prior to his plea. The state court's finding is further supported by counsel's testimony about Medlin's letter asking whether counsel found any law to support her "theory" that the credit "might be applied." This language does not suggest that counsel communicated to Medlin with any certainty that he would receive the credit on each consecutive sentence. Medlin argues that the state court erred in finding counsel's testimony credible because she made numerous statements that she did not recall or have specific recollections of events. This assertion does not establish, by clear and convincing evidence, that the state court's finding was erroneous.
Moreover, Medlin fails to show prejudice. The state court found not credible Medlin's testimony he would have proceeded to trial on all counts absent counsel's alleged misadvice. Medlin does not produce in support of his petition the undated letter in which he apparently indicated to counsel he would prefer to proceed to trial and be sentenced to life if the State would not accept either of the two offers he proposed. However, information about the letter's contents, provided through counsel's evidentiary hearing testimony, does not constitute clear and convincing evidence that the state court's credibility determination was incorrect.
Counsel testified that Medlin wrote he would go to trial if the State did not agree to either six years in prison followed by ten years of non sex offender probation, or eight years in prison with no probation. Medlin claims that this statement demonstrates he would have insisted on proceeded to trial and shows that the state court erred in its finding. His argument is unav ailing. Medlin's assertion is belied by his acceptance of a plea for 16.5 years in prison. This is a significantly longer prison term than the eight-year prison maximum he was allegedly willing to accept rather than proceeding to trial. Taking into account Medlin's belief that approximately five years would have been removed from his sentence had the jail time been credited differently does not change this conclusion.
Medlin does not demonstrate that the state court unreasonably applied clearly established federal law or unreasonably determined the facts in rejecting his claim that counsel was deficient or that he suffered prejudice. Medlin is not entitled to relief on Ground One.
Medlin asserts counsel provided ineffective assistance by coercing him into entering the plea when she informed him that the State threatened to seek a 500-year sentence if he went to trial. Medlin also argues that counsel was ineffective for not presenting to him several potential defenses. He claims counsel's actions rendered his plea involuntary. Based on the argument within this claim, Ground Two of the federal habeas petition is interpreted as raising the claims presented in Medlin's second amended version of claim 2 of his state postconviction motion. (Doc. 9, Ex. 11, pp. 65-76.)
These claims are procedurally defaulted. Before a district court can grant habeas reliefto a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state postconviction motion. 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."). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he firstproperly raised the issue in the state courts.") (citations omitted). A state prisoner "`must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's court of last resort, even if review in that court is discretionary." Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner `fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004). The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971).
Medlin raised the current arguments in claim 2 of his postconviction motion. But he did not brief claim 2 on collateral appeal. (Doc. 9, Ex. 13.) He was he was required to do so to raise it before the state appellate court. See Fla. R. App. P. 9.141(b)(3)(C). Because he failed to invoke one complete round of the state's established appellate review process, the claims are unexhausted. Pruitt, 348 F.3d at 1358-59. The doctrine of procedural default provides that "[i]f 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, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). Medlin cannot return to state court to file an untimely, successive postconviction appeal. Fla. R. App. P. 9.141(b); Fla. R. Crim. P. 3.850(k). The claims are procedurally defaulted.
To establish cause for a procedural default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982). The petitioner must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
To the extent Medlin argues that he establishes cause because postconviction appellate counsel was ineffective for failing to raise this claim, his assertion must fail. Generally, ineffective assistance of postconviction counsel cannot constitute cause. See Coleman v. Thompson, 501 U.S. 722, 752-55 (1991). The exception to this rule provided in Martinez v. Ryan, ___ U.S. ____, 132 S.Ct. 1309 (2012), only applies to claims that postconviction counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel in an initial-review collateral proceeding. The Court in Martinez stated that its holding "does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial." Id. at 1320. The holding therefore "does not concern attorney errors in other kinds of proceedin gs, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts." Id. Accordingly, Martinez does not extend to claims that postconviction appellate counsel was ineffective.Medlin therefore does not establish the cause and prejudice exception to overcome the default of Ground Two.
A petitioner may also obtain federal habeas review of a procedurally defaulted claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. 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); Henderson, 353 F.3d at 892. Medlin does not argue or demonstrate the applicability of the fundamental miscarriage of justice exception. Notwithstanding the default, Medlin does not show entitlement to relief.
Medlin claims that counsel was ineffective because she coerced him into entering the plea by communicating the State's alleged threat to seek a longer sentence should he proceed to trial. In support, Medlin identifies the following portion of a November 9, 2010 letter counsel sent to him:
(Doc. 1-1, p. 11.) The court identified this argument as subpart (f) of claim 2 in Medlin's postconviction motion. In rejecting this portion of claim 2, the state court found:
(Doc. 9, Ex. 11, p. 89.)
"A coerced plea is not a voluntary plea, and coercion can result from psychological . . . pressure." Flores v. Estelle, 578 F.2d 80, 82 (5th Cir. 1978). However, Medlin does not establish that counsel was ineffective by coercing him to enter the plea. Counsel's letter relays to Medlin her multiple attempts to reach an agreement with the State and advises him of the outcome. Counsel informed Medlin that despite her efforts, the State was not willing to agree to a sentence lower than 16.5 years in prison:
(Doc. 1-1, p. 11.)
While counsel warned Medlin about the State's possible sentencing request if he was convicted at a trial, Medlin does not establish that counsel threatened, coerced, or pressured him into entering the plea through this letter. Nor does Medlin demonstrate that the letter contained any actual threat made by the State. Furthermore, a choice between going to trial and risking a longer prison sentence or taking a plea and accepting a shorter sentence does not amount to constitutionally impermissible coercion. See Brady v. United States, 397 U.S. 742, 751 (1970) (a guilty plea is constitutionally valid even though "motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged."). Medlin fails to show that counsel was ineffective for coercing him into entering the plea through her letter. He cannot, therefore, demonstrate that his plea was involuntary on this basis.
Medlin does not show that the state court's decision was an unreasonable application of or contrary to clearly established federal law, or was based on an unreasonable determination of the facts.
Medlin also claims counsel was deficient for not presenting him with several defenses. He claims his plea was involuntary because he did not know of these alternatives. The record reflects that Medlin was sentenced for fifty violations of § 827.071, Fla. Stat. (Doc. 9, Ex. 1.) Medlin states that his offenses occurred in 2005. The record reflects that an "affidavit complaint" was filed on September 29, 2005, and the charging document was filed on November 30, 2005. (Doc. 9, Ex. 11, p. 9.) The relevant portion of the statute in effect at that time provides:
Section 827.071(5)(a), Fla. Stat. (2005).
Medlin states several potential defenses concerning the propriety of his charges. Chapter 827 of the Florida Statutes is entitled Abuse of Children. Medlin first appears to assert that charges were improper under § 827.071, Fla. Stat., because his possession of pornographic images of children did not itself constitute child abuse.
Medlin further asserts that § 827.071 does not clearly define what constitutes a "separate offense" because it fails to adequately define the terms "photographs," "motion pictures," "shows," "exhibitions," "representations," and "presentations."
Lastly, Medlin mentions in Ground Two of his federal habeas petition the lack of a presentence investigation ("PSI") in his case. In claim 2 of the postconviction motion, Medlin asserted that had he "known his true position in this case," he would have gone to trial and relied upon a PSI report at sentencing to show that he was a good candidate for probation. (Ex. 11, p. 75.)
The state court denied Medlin's claims that counsel was ineffective for not informing him of these potential defenses:
(Ex. 11, pp. 88-89) (court's record citation omitted) (emphasis in original).
Medlin does not establish entitlement to relief. His potential defenses concern the application and operation of state statutes. A federal habeas court is bound by state court determinations concerning the interpretation of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Therefore, to the extent Medlin claims counsel was ineffective for not presenting defenses based the propriety of charging him under a certain state statute or otherwise resting upon the application of state statutes, deference must be afforded to the state court's determination. See Will v. Sec'y for Dep't of Corr., 278 Fed. App'x 902, 908 (11th Cir. 2008) ("Although an ineffective-assistance-of-counsel claim is a federal constitutional claim, which we consider in light of the clearly established rules of Strickland, when `the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law.'") (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)).
The state court has determined that these potential defenses would have failed under Florida law. See Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) ("The Florida Supreme Court already has told us how the issues would have been resolved under Florida state law had [petitioner's counsel] done what [petitioner] argues he should have done. . . . It is a `fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.'") (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)). Specifically, in subparts (a), (b), (c), and (e) of its order, the state court rejected all of Medlin's potential defenses concerning the propriety of his charges under specific state statutes, as well as his claim that counsel should have moved to dismiss the counts as improperly charged under § 827.071. In subpart (d), the court rejected his claim with regard to the potential defense, again concerning the application of state law, that he was legitimately pursuing professional study. Moreover, Medlin presents no evidence that he was conducting any sort of study or research, and § 827.071 provides no exception for such activity. Nor does Medlin point to any authority suggesting that this may constitute a defense to possession of the images.
Finally, in subpart (f), the court rejected Medlin's claim that had he known of these defenses, he would have insisted on proceeding to trial, after which the court would have a PSI for consideration during sentencing upon conviction. Medlin does not show that the state court made an objectively unreasonable determination when it denied his claim. As the state court found that none of the defenses presented by Medlin would have succeeded, Medlin does not show deficient performance. Furthermore, as the postconviction court observed, the trial court could have sentenced Medlin to a term of years significantly longer than that he was assured to receive by entering his plea even if the PSI had been prepared. Under these circumstances, Medlin does not establish a reasonable probability that he would have insisted on proceeding to trial had he known that a PSI would be prepared.
Accordingly, Medlin fails to establish that counsel was deficient so as to render his plea involuntary or that he was prejudiced by counsel's performance. He does not show that the state court's decision was contrary to or an unreasonable application of clearly established federal law, or was based upon an unreas onable determination of the facts. Medlin is not entitled to relief on Ground Two.
In Ground Three, Medlin presents a distinct claim involving the lack of a PSI. Medlin asserts that no PSI was prepared, contrary to the requirements of Florida Rule of Criminal Procedure 3.710. This Rule provides, in relevant part:
Fla. R. Crim. P. 3.710(a).
Medlin therefore asserts that the trial court erred when it deviated from the Rule and imposed an unlawful sentence, and that counsel was ineffective for not objecting to the unlawful sentence. The claims presented in Medlin's federal habeas petition differ from the claim presented in his postconviction motion. In claim 3 of his postconviction motion, Medlin asserted that counsel was ineffective for failing to advise him of Rule 3.710. Medlin claimed that counsel did not tell him he was waiving his right to a PSI, and that, if he had been told about his entitlement to a PSI, he would have rejected the plea offer and demanded a jury trial because the PSI would have provided a basis for the court to impose probation. (Doc. 9, Ex. 11, pp. 39-47.) The state court denied claim 3 of Medlin's postconviction motion. On collateral appeal, Medlin altered his claim to one of trial court error, alleging that "the imposition of a prison sentence without ordering a PSI was improper." (Doc. 9, Ex. 13, p. 18.)
Medlin was required to present the same legal and factual bases for the claim in both his state court pleading and federal habeas petition to exhaust the claim for purposes of federal habeas review. See Kelley, 377 F.3d at 1344. But neither aspect of his current claim, that the trial court erred in imposing an unlawful sentence, or that counsel was ineffective for not objecting to the allegedly unlawful sentence, was presented to the state postconviction court in Medlin's postconviction motion.
Medlin therefore failed to exhaust the claims raised in Ground Three of his federal habeas petition. He cannot return to state court to file a successive postconviction motion. Fla. R. Crim. P. 3.850(h). Accordingly, the claims are procedurally defaulted. Smith, 256 F.3d at 1138. Medlin does not demonstrate that either the cause and prejudice or fundamental miscarriage of justice exception applies to overcome the default. Id.
Notwithstanding the procedural default, Medlin cannot obtain relief on the claims presented in Ground Three of his federal habeas petition. First, his claim that the state court erred in not complying with Florida Rule of Criminal Procedure 3.710 is not cognizable in this proceeding. Habeas relief under § 2254 is available only on the grounds that a state prisoner is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). In other words, federal habeas corpus relief will not issue to correct errors of state law or procedure. McGuire, 502 U.S. at 67-68 (1991). "[F]ederal courts can not review a state's alleged failure to adhere to its own sentencing procedures." Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (citations omitted).
Accordingly, Medlin's his claim that the state trial court violated state procedure in sentencing him without a PSI as required by Rule 3.710 is a matter of state law for which federal habeas jurisdiction does not lie. This is true even though Medlin references the Fourteenth Amendment and asserts that he was denied equal protection and due process. Branan, 861 F.2d at 1508 ("This limitation on federal habeas review is of equal force when a petition, which actually involves state law issues, is `couched in terms of equal protection and due process.'") (quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir. 1976)). Medlin does not present a claim cognizable on federal review.
Second, Medlin's claim that counsel was ineffective for failing to object to his being sentenced without a PSI must fail. Medlin does not establish that counsel was deficient for not doing so, or that he was prejudiced by counsel's performance. The state court's findings with regard to a PSI support the rejection of Medlin's claim. As addressed in Ground Two, in denying claim 2 of the postconviction motion, the state court found:
(Doc. 9, Ex. 11, p. 89) (emphasis in original).
Additionally, in rejecting claim 1 of the postconviction motion, the state court noted that "Medlin's fall-back position is . . . that if convicted the PSI would show him to be a good candidate for probation. The Fla. Sentencing Guidelines would have over 560 total sentence points and a lack of prior record is not a basis for a downward departure." (Doc. 9, Ex. 11, p. 177.)
Medlin cannot show that counsel was ineffective for not objecting at sentencing. Although Medlin believes a PSI would have shown he was a good candidate for probation, it is entirely speculative to assert what conclusions or recommendations a PSI would have contained. It is just as speculative to suggest that the trial court would have imposed a lesser sentence based upon the potential contents of a PSI. Speculation cannot sustain a claim of ineffective assistance of counsel. See Hill, 474 U.S. 52 (conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim).
In addition, Rule 3.710 provides that a PSI contains sentencing recommendations. Therefore, requesting a PSI implies that Medlin would not have agreed to a particular term of years but would have left the sentencing determination to the court. Even assuming that a PSI had been done, as the postconviction court observed, the trial court could have sentenced Medlin to a significantly longer prison term than that he knew he would receive by entering the negotiated plea. And the postconviction court noted that the sentencing court could not make a downward departure from the sentencing guidelines
It is therefore ORDERED that Medlin's petition for writ of habeas corpus (Doc. 1) is DENIED. The Clerk is directed to enter judgment against Medlin and to close this case.
IT IS FURTHER ORDERED that Medlin is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). 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, Medlin "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)). Medlin has not made the requisite showing in these circumstances.
Finally, because Medlin is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
