ROY B. DALTON, Jr., District Judge.
This cause is before the Court on the Petition for Writ of Habeas Corpus ("Petition," Doc. 1) filed by Petitioner pursuant to 28 U.S.C. § 2254. Respondents filed a Response to Petition ("Response," Doc. 11) 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. 18) to the Response. For the reasons set forth herein, the Petition is denied.
A Statewide Grand Jury charged Petitioner and several other individuals by indictment with the commission of various crimes. (Doc. 12-1 at 4-24). The Grand Jury charged Petitioner with racketeering (count one), conspiracy to racketeer (count two), conspiracy to traffic in 400 grams of cocaine (count three), and conspiracy to traffic in 25 pounds of cannabis (count four). (Id.). During trial, the State dismissed count four. (Doc. 12-4 at 342). A jury found Petitioner guilty as to counts one, two, and three. (Doc. 12-5 at 235). However, count two was later dismissed on Double Jeopardy grounds. (Id. at 239-40). The trial court adjudicated Petitioner guilty of counts one and three and sentenced him to imprisonment for a term of thirty years as to count one and for a term of fifteen years as to count three, with the sentences to run consecutively. (Doc. 12-1 at 26-30). Petitioner filed a direct appeal with the Florida Fifth District Court of Appeal ("Fifth District"), which affirmed per curiam. (Doc. 12-7 at 122).
Petitioner then filed a petition for writ of habeas corpus, which the Fifth District denied. (Id. at 126-170, 181).
Petitioner next filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which the trial court denied. (Id. at 183-89, 214-17). Petitioner appealed the denial, and the state appellate court affirmed the denial per curiam. (Id. at 257).
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 discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11
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 United States Supreme Court 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 (11
Petitioner states that trial counsel was ineffective for failing "to advise him to accept a plea offer extended by the State to plead guilty and be sentenced to a total of 12 years of imprisonment. . . ." (Doc. 1 at 7). This claim was raised in Petitioner's Rule 3.850 motion and was denied because Petitioner did not "establish that counsel failed to convey the offer or advised him to reject it. . . ." ("Doc. 12-7 at 217).
Petitioner admitted in his Rule 3.850 motion that counsel "informed him that the state had offered him a twelve (12) year sentence if he would agree to plead guilty to the charges against him." (Doc. 12-7 at 189). According to Petitioner, counsel described the offer as a "good offer." (Id). Petitioner never alleged that he was misinformed regarding the possible sentence he faced. (Id. at 195-96). Petitioner also stated in the Rule 3.850 motion that "trial counsel at no time advised [Petitioner] whether to accept or reject the state's plea offer." (Id. at 189).
In the context of a plea bargain, "defense 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[.]" Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012). Counsel's failure to communicate formal plea offers to a defendant would constitute deficient performance under the first part of the Strickland test. Id. at 1408. To demonstrate prejudice under the second part of the Strickland test when a plea offer has lapsed or been rejected due to counsel's deficient performance, a defendant must show a reasonable probability he or she would have accepted the earlier plea offer had counsel acted reasonably. Id. Here, there has been no showing of prejudice.
Given a defendant's awareness of the plea offer, "his after the fact testimony concerning his desire to plead, without more, is insufficient to establish that but for counsel's alleged advice or inaction, he would have accepted the plea offer." James v. United States, 623 F. App'x 973, 975-76 (11th Cir. 2015) (quotation and citation omitted). Petitioner provides no evidence that he expressed a desire to plead guilty prior to his conviction, and, in fact, he maintained his innocence throughout his case. There is no evidence before this Court to show that Petitioner's decision to go to trial or take a plea offer would be different had he received different advice from counsel.
While the plea offer provided for a lower sentence than the one Petitioner received, Petitioner has not established that he would have accepted the plea but for counsel's alleged ineffectiveness, or that the trial court would have accepted it. Petitioner must demonstrate more than the fact that the sentence he received was more than the sentence offered by the plea deal. Petitioner has also failed to point to any evidence that the trial court would have accepted the plea offer, especially in light of the severity of the sentence actually imposed. Consequently, Petitioner failed to show that counsel was ineffective, and he has not demonstrated a reasonable probability that the result would have been different.
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 one is denied.
Petitioner states that counsel was ineffective for failing to file a pretrial "motion to dismiss the indictment on the ground that the Office of the Statewide Prosecutor lacked jurisdiction to prosecute his case." (Doc. 1 at 17). This claim was raised in Petitioner's Rule 3.850 motion and was denied because there was "no reasonable probability that a pre-trial Motion to Dismiss would have been granted." (Doc. 12-7 at 215.
Under the Florida Constitution, the Office of Statewide Prosecution has the authority to "prosecute violations of criminal laws occurring or having occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is affecting or has affected two or more judicial circuits as provided by general law." See Fla. Const. Art. IV, § 4(b). Here, the Indictment specifically provided that "all said offenses occurred in two or more judicial circuits in the State of Florida as part of a related transaction or said offenses were connected with an organized criminal conspiracy affecting two or more judicial circuits in the State of Florida." (Doc. 12-1 at 23). This language has been deemed sufficient to fulfill the jurisdictional requirements for the statewide prosecutor. State v. Nuckolls. 677 So.2d 12 (Fla. 5th DCA 1996). Thus, the allegation in the Indictment established the authority of the Office of the Statewide Prosecutor to prosecute the charged offenses.
In addition, each of the four counts of the Indictment specifically stated that Petitioner engaged in the criminal activity "in the Second, Ninth, and Eleventh Judicial Circuits of Florida, to wit: Gadsen, Leon, Orange, and Miami-Dade Counties." Thus, the Indictment contained factual allegations to establish that the crimes occurred in two or more judicial circuits. Consequently, there was no basis upon which to move to dismiss the Indictment prior to trial.
Petitioner has failed to show that counsel was ineffective or that he sustained prejudice with regard to this matter. 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 two is denied.
Petitioner states that his right to an impartial jury was violated when a spectator (an individual who had been sitting with the family of the defendants) entered the jury room. This claim was raised in Petitioner's direct appeal.
In support of this claim, Petitioner relies primarily on Remmer v. United States, 347 U.S. 227 (1954). In Remmer, the Supreme Court held that "any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial. . . ." Id. at 229. However, the Supreme Court has also discussed that
Smith v. Phillips, 455 U.S. 209, 217 (1982).
Here, there is no indication that the individual had any private communication with any juror. Each juror was interviewed about the incident, and no juror had any personal interaction with the individual. (Doc. 12-4 at 50-71). One juror mentioned that the individual gave her the "willies," and another juror mentioned feeling "awkward." (Id. at 52, 57). However, no juror expressed any concern about the situation, and there is nothing in the record to show that there was any private, extrinsic contact with any juror that would create a presumption of prejudice under the dictates of Remmer.
Further, the trial court conducted a thorough voir dire of the jurors and took precautionary measures. No juror expressed any concern about continuing with the trial, and no juror stated that his or her impartiality would be affected by the incident. The voir dire demonstrated that no prejudice resulted from the incident.
Petitioner's right to a fair trial was fully protected, and the trial court properly denied his motion for a mistrial. There was also no basis for the trial court to excuse any of the jurors. Consequently, the state court properly denied this claim.
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 three is denied.
Allegations not specifically addressed herein are without merit.
This Court should grant an application for a certificate of appealability only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing "[t]he 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). However, the petitioner need not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner fails to demonstrate 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 fails 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
1. The Petition for Writ of Habeas Corpus (Doc. 1) is
2. This case is
3. Petitioner is
4. The Clerk of the Court is directed to enter judgment in favor of Respondents and to close this case.
