STEVEN D. MERRYDAY, District Judge.
Williams applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 44) and challenges his convictions for false application for a driver's license, fraudulent use of personal identification, and scheming to defraud, for which he is imprisoned for a total of fifteen years. Williams pleaded nolo contendere. Numerous exhibits ("Respondent's Exhibit __") support the amended response. (Doc. 51)
This application challenges the validity of Williams's pleas of nolo contendere in two separate criminal cases. In 02-08819 a single-count information charged Williams with "Scheme to Defraud." (Respondent's Exhibit 19 at 63) This order refers to that criminal case as the "fraud case." In 02-07376 a two-count information charged Williams with "False Application for a Driver's License" and "Criminal Use of Personal Identification Information." (Respondent's Exhibit 19 at 1) This order refers to that criminal case as the "driver's license case." Williams's change of plea for each information occurred at the same hearing and proceeded as a single case on both direct appeal and in post-conviction. Likewise, the federal application presents the two convictions in a single action.
Williams timely filed his application following his direct appeal but before he pursued state post-conviction proceedings. As a consequence, his claims of ineffective assistance of counsel were unexhausted. This federal action was stayed and administratively closed because, under Florida's two-year limitation, Williams could still timely file a Rule 3.850 motion for post-conviction relief to exhaust his claims of ineffective assistance of counsel. Four years later this action was re-opened after the post-convictions proceedings concluded and after Williams amended his application. (Doc. 44)
In the fraud case Williams was charged with defrauding at least six individuals by representing that he was purchasing distressed merchandise, which he would then sell and divide the profits with his investors. At the change of plea hearing, the prosecutor recited the following factual basis to support the charge in the fraud case (Respondent's Exhibit 19 at 156S58):
In the driver's license case Williams was charged with having unlawfully obtained the personal identification of another person and used the information to obtain a Florida driver's license. Williams committed this criminal act shortly before he fled from Pinellas County as described above in the fraud case. At the change of plea hearing, the prosecutor recited the following factual basis to support the charges in the driver's license case (Respondent's Exhibit 19 at 127S28):
Williams offered no objection to the above facts when he pleaded nolo contendere in both cases.
A conviction based on a plea of nolo contendere is reviewed the same as a conviction based on a guilty plea. Wallace v. Turner, 695 F.2d 545, 548 (11th Cir. 1982). Tollett v. Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a non-jurisdictional defect:
This waiver of rights precludes most challenges to the conviction. See e.g., United States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003) ("Generally, a voluntary, unconditional guilty plea waives all non-jurisdictional defects in the proceedings."), and Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) ("A defendant who enters a plea of guilty waives all non-jurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained."). A guilty plea waives a claim of ineffective assistance of counsel based on a pre-plea event.
Hutchins v. Sec'y, Dep't of Corr., 273 Fed. App'x 777, 778 (11th Cir.), cert. denied, 555 U.S. 857 (2008). Consequently, the entry of a guilty plea waives a claim (other than a challenge to the court's jurisdiction or a challenge to the voluntariness of the plea), including both a substantive claim and a purported failing of counsel that occurred before entry of the plea. "[T]he representations of the defendant . . . [at the plea proceeding] as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73S74 (1977). Williams's allegations are in direct conflict with his statements during the plea colloquy. Statements during a plea colloquy are presumed true. See United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
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). Section 2254(d), which creates 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, 693 (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, 131 S.Ct. 770, 786S87 (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 we are 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 v. Taylor, 529 U.S. at 412.
The purpose of federal review is not to re-try the state 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." Bell v. Cone, 535 U.S. at 694. A federal court must afford due deference to a state court's decision. "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, 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 appellate court on direct appeal affirmed Williams's convictions and sentence. (Respondent's Exhibit 14) Similarly, in another per curiam decision without a written opinion the state appellate court affirmed the denial of Williams's subsequent Rule 3.850 motion to vacate. (Respondent's Exhibit 34) The state appellate court's per curiam affirmances warrant 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, 131 S. Ct. at 784S85 ("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."), and Bishop v. Warden, 726 F.3d 1243, 1255S56 (11th Cir. 2013) (describing the difference between an "opinion" or "analysis" and a "decision" or "ruling" and explaining that deference is accorded the state court's "decision" or "ruling" even if there is no "opinion" or "analysis").
Review of the state court decision is limited to the record that was before the state court:
Pinholster, 131 S. Ct. at 1398. Williams 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). The state court's rejections (Respondent's Exhibits 25 and 30) of Williams's post-conviction claims warrant deference in this case.
The application asserts four grounds for relief. A theme that runs throughout most of the application is that James B. Sterling had authorized Williams to use his identification, that law enforcement falsified information regarding the authorization, and that trial counsel was ineffective in not adequately investigating the authorization. The first ground asserts claims that were resolved in the state post-conviction proceeding, specifically, numerous allegations of ineffective assistance of counsel. The remaining three grounds involve pre-plea and direct appeal issues, specifically, that Williams was denied counsel on direct appeal and that the primary investigating detective both falsified information and falsely testified. This order addresses the pre-plea and direct appeal issues before the post-conviction issues.
In ground three Williams alleges that the investigating detective falsified "the initial warrant[,] never sat down and interviewed James B. Stirling on the fact that he gave me his birth certificate[, and] falsified the parties involved and the amounts of money involved." In ground four Williams alleges that the investigating detective "falsified the grounds and facts for the arrest warrant," specifically, that the detective "never sat down and interviewed James B. Stirling. . . ." The respondent correctly asserts two reasons why Williams is entitled to relief under neither ground.
First, review under Section 2254 is limited to alleged violations of a federally protected right. "The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Williams asserts the violation of no constitutional right, however, these allegations against the investigating detective are also asserted as part of Williams's claims of ineffective assistance of counsel. Nevertheless, the allegations do not assert a separate claim that Williams can pursue under Section 2254.
Second, even if the allegations could assert a separate claim, Williams's entry of a plea of nolo contendere waived the claim. See McMann v. Richardson, 397 U.S. 759, 766 (1970) (holding that a plea waives the right to trial and, therefore, waives the "right to contest the admissibility of any evidence the State might have offered against the defendant").
Williams alleges that he was denied the right to counsel on direct appeal. Williams admits that he was appointed a member of the public defender's office to represent him on appeal, but because he disagreed with appellate counsel's strategy, counsel moved to withdraw as Williams requested. (Respondent's Exhibits 1 and 2) The appellate court granted Williams's request for counsel to withdraw. (Respondent's Exhibits 4 and 5) Williams's subsequent motion for the appointment of counsel not associated with a public defender's office was denied and Williams filed a pro se opening brief. (Respondent's Exhibits 6, 7, and 11)
Although a "State must provide counsel for the indigent on his first appeal as of right," Douglas v. California, 372 U.S. 353 (1963), that right guarantees neither "a `meaningful relationship' between an accused and his counsel," Morris v. Slappy, 461 U.S. 1, 14 (1983), nor the "right to representation by an attorney he cannot afford." Wheat v. United States, 486 U.S. 153, 159 (1988). A indigent who dismisses his appointed counsel and proceeds pro se "cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.'" Faretta v. California, 422 U.S. 806, 835, n.46 (1975).
Williams was provided with appellate counsel, whom he chose to dismiss. Consequently, Williams was not denied counsel on direct appeal.
Williams claims 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)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 ("There 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."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[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." 466 U.S. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690.
Williams 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." 466 U.S. at 691S92. To meet this burden, Williams must show "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." 466 U.S. at 694.
Strickland cautions that "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." 466 U.S. at 690S91. Williams cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.
White v. Singletary, 972 F.2d 1218, 1220S21 (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)). How extensive of an investigation that counsel must perform was recently addressed in Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S.Ct. 2126 (2015):
See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous claim).
Although the Strickland standard controls a claim that counsel was ineffective in recommending that a client plead guilty, Hill v. Lockhart, 474 U.S. 52 (1985), Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994), greater evidence is needed to prove both deficient performance and prejudice if the client pleads guilty. "[C]ounsel owes a lesser duty to a client who pleads guilty than to one who decided to go to trial, and in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution's offer and going to trial." Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). And to prove prejudice, "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. at 59.
Williams must prove that the state court's decision was "(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or (2) . . . 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). Sustaining a claim of ineffective assistance of counsel 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, 131 S. Ct. at 788. See also Pinholster, 131 S. Ct. at 1410 (An applicant must overcome this "`doubly deferential' standard of Strickland and the AEDPA."), Johnson v. Sec'y, Dep't of Corr., 643 F.3d 907, 911 (11th Cir. 2011) ("Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding."), and Pooler v. Sec'y, Dep't of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) ("Because we must view Pooler's ineffective counsel claim — which is governed by the deferential Strickland test — through the lens of AEDPA deference, the resulting standard of review is "doubly deferential."), cert. denied, 134 S.Ct. 191 (2013).
In summarily denying Williams's motion for post-conviction relief, the state court specifically recognized that Strickland governs a claim of ineffective assistance of counsel. (Respondent's Exhibit 25) Because the state court rejected the claims based on Strickland, Williams cannot meet the "contrary to" test in Section 2254(d)(1). Williams instead must show that the state court unreasonably applied Strickland or unreasonably determined the facts. In determining "reasonableness," a federal application for the writ of habeas corpus authorizes determining only "whether the state habeas court was objectively reasonable in its Strickland inquiry," not an independent assessment of whether counsel's actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002). The presumption of correctness and the highly deferential standard of review requires that the analysis of each claim begin with the state court's analysis.
The respondent fairly describes Williams's claims of ineffective assistance of counsel as "eighteen one line claims of how his counsel was ineffective [with] no factual basis for any of his claims [except] one vague statement per claim." (Doc. 51 at 25S26) The post-conviction court organized the claims into five groups, labeled as "Grounds ISV," an organization that both Williams followed in his amended motion for post-conviction relief and the post-conviction court retained when it denied the amended motion for post-conviction relief. (Respondent's Exhibits 23S25)
The post-conviction court initially denied all of the grounds as insufficiently pleaded. The appellate court remanded for the post-conviction court to address more fully the "Ground II," which the post-conviction court denied on remand as follows (Respondent's Exhibit 30 at 2) (citations to the record omitted):
As discussed earlier under "III. Nolo Contendere Plea," each of these allegations of deficient performance occurred before Williams pleaded nollo contendere and, as a consequence, each claim is waived. The transcript from the plea hearing shows that, for both the fraud charge and the driver's license charge, Williams represented that he was "satisfied with [counsel's] services." (Respondent's Exhibit 19, vol. II at 127 and 155) The transcript discloses that Williams was singularly focused on convincing the judge to recommend that his state sentence run concurrently with his federal sentence. Despite Williams's persistence, the state judge held steadfast in denying Williams's request for a recommendation that the state sentence run concurrently with the federal sentence. (Respondent's Exhibit 19, vol. II at 134-40 and 150-52) The state court reasonably applied Strickland in determining that Williams failed to prove both deficient performance and resulting prejudice.
To summarize, Williams fails to meet his burden to show that the state court's decision was either an unreasonable application of controlling Supreme Court precedent or an unreasonable determination of fact. As Burt v. Titlow, 134 S.Ct. 10, 15S16 (2013), recognizes, this burden is very difficult to meet:
Accordingly, Williams's amended application for the writ of habeas corpus (Doc. 44) is DENIED. The clerk must enter a judgment against Williams and close this case.
Williams is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, Williams must show that reasonable jurists would find debatable both the merits of the underlying claims and the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, Williams is entitled to neither a COA nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Williams must obtain permission from the circuit court to appeal in forma pauperis.
ORDERED.
