STEVEN D. MERRYDAY, District Judge.
William Lawrenson applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and challenges the validity of his state convictions for battery and sexual battery on a person less than twelve years of age, for which convictions Lawrenson serves life imprisonment. Numerous exhibits ("Respondent's Exhibit __") support the response. (Doc. 8) The respondent admits the application's timeliness. (Doc. 8, p. 3)
The victim's parents were neighbors of Lawrenson and his wife while both couples lived in the United Kingdom. When the victim and her family moved to Polk County, Florida, they remained friends with the Lawrensons. The Lawrensons visited the victim and her family in the United States on several occasions. During one visit, Lawrenson and the victim — then eleven years old — stayed at the victim's home while her parents and Lawrenson's wife went to dinner. While alone with the victim, Lawrenson inserted his finger into the victim's vagina. During a later visit with the victim's family, Lawrenson fondled and licked the victim's breasts. On another occasion Lawrenson put his hand inside the victim's underwear and touched her vagina. On yet another occasion, when the victim was twelve years old, Lawrenson put his hand under the victim's swimsuit and grabbed her breasts. The victim's parents reported the allegations to the police, who arranged a controlled telephone call between the victim and Lawrenson while Lawrenson was in the United Kingdom. During the call, Lawrenson admitted to sexually abusing the victim. Lawrenson later visited the victim's family in Polk County. Lawrenson was taken to the police station. In a recorded interview, he admitted touching the victim's breasts and demonstrated how he inserted his finger into the victim's vagina. Lawrenson was arrested and charged with one count of sexual battery on a person less than twelve (count one) and two counts of lewd molestation (counts two and three).
A jury convicted Lawrenson of both sexual battery on a person less than twelve and the lesser-included offense of battery on count two. The jury acquitted Lawrenson of the second charge of lewd molestation (count three). Immediately after receipt of the verdict, the judge sentenced Lawrenson to a mandatory life sentence for the sexual battery conviction and to time served for the battery conviction.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs Lawrenson's application. 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, 562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) ("The critical point is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question. . . .") (citing Richter); Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) ("And an `unreasonable application of' those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.") (citing Woodall, 572 U.S. at 419). 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, 563 U.S. 170, 181 (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).
When the last state court to decide a federal claim explains its decision in a reasoned opinion, a federal habeas court reviews the specific reasons as stated in the opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) ("[A] federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable."). When the relevant state-court decision is not accompanied with reasons for the decision, the federal court "should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale [and] presume that the unexplained decision adopted the same reasoning." "[T]he State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision. . . ."
In a per curiam decision without a written opinion the state appellate court on direct appeal affirmed Lawrenson's convictions and sentences. (Respondent's Exhibit 11) The state appellate court affirmed the denial of Lawrenson's Rule 3.850 motion for post-conviction relief. (Respondent's Exhibits 17 and 23) 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."), 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").
As Pinholster, 563 U.S. at 181-82, explains, review of the state court decision is limited to the record that was before the state court:
Lawrenson 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 rejection of Lawrenson's post-conviction claims warrants deference in this action. (Final Orders Denying Motion for Post-Conviction Relief, Respondent's Exhibits 13 and 21)
Lawrenson 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)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
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.
Lawrenson 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, Lawrenson 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 690-91. Lawrenson cannot meet his burden merely by showing that the avenue chosen by counsel proved 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)). The required extent of counsel's investigation was addressed recently 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) (confirming that counsel has no duty to raise a frivolous claim).
Under 28 U.S.C. § 2254(d) Lawrenson 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." 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, 562 U.S. at 106. See also Pinholster, 563 U.S. at 202 (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 Lawrenson's motion for post-conviction relief, the state court recognized that Strickland governs a claim of ineffective assistance of counsel. (Respondent's Exhibits 13 and 21) Because the state court rejected the claims based on Strickland, Lawrenson cannot meet the "contrary to" test in Section 2254(d)(1). Lawrenson 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.
In ground one Lawrenson raises three claims for relief: (1) the trial judge improperly intervened and improperly interrupted counsel during cross-examination of the victim, (2) trial counsel rendered ineffective assistance by not "properly" arguing against the trial judge's interruption, and (3) trial counsel rendered ineffective assistance by not properly cross-examining or impeaching the victim. The respondent opposes claims 1 and 2 as unexhausted and procedurally barred because Lawrenson failed to raise claim 1 in his direct appeal and failed to raise claim 2 in his Rule 3.850 motion for post-conviction relief.
Lawrenson failed to raise claims 1 and 2 in the state court, rendering both claims unexhausted. An applicant must present each claim to a state court before raising the claim in federal court. "[E]xhaustion of state remedies requires that petitioners `fairly presen[t]' federal claims to the state courts in order to give the State the `opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995), Picard v. Connor, 404 U.S. 270, 275 (1971). Accord Rose v. Lundy, 455 U.S. 509, 518-19 (1982) ("A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error."), and Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) ("[T]he applicant must have fairly apprised the highest court of his state with the appropriate jurisdiction of the federal rights which allegedly were violated."). Also, an applicant must present to the federal court the same claim presented to the state court. Picard v. Connor, 404 U.S. at 275 ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts."). "Mere similarity of claims is insufficient to exhaust." Duncan v. Henry, 513 U.S. at 366.
As Baldwin v. Reese, 541 U.S. 27, 32 (2004), explains, an applicant must alert the state court that he is raising a federal claim and not just a state law claim:
As a consequence, "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982). See also Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004) ("The exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.") (citations omitted).
Lawrenson's failure to present to the state court either claim 1 or claim 2 deprived the state court of a "full and fair opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Boerckel, 526 U.S. at 845. See also Anderson v. Harless, 459 U.S. 4, 5, 6 (1982) ("It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made."); Preston, 785 F.3d at 460 (noting that "simply mentioning a phrase common to both state and federal law, like `sufficiency of the evidence,' cannot constitute fairly presenting a federal claim to the state courts"). Consequently, claims 1 and 2 are unexhausted. State procedural rules preclude Lawrenson from returning to state court to present his federal claims in either a second direct appeal or a second state Rule 3.850 motion. Lawrenson's failure to properly exhaust his federal claims in the state court results in a procedural default.
"If the [applicant] 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 applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, an applicant "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). To show prejudice, an applicant must demonstrate not only that an error at the trial created the possibility of prejudice but that the error worked to her actual and substantial disadvantage and infected the entire trial with error of constitutional dimension. United States v. Frady, 456 U.S. 152 (1982). In other words, an applicant must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892.
Absent a showing of cause and prejudice, an applicant may obtain federal habeas review of a procedurally defaulted claim only if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Murray v. Carrier, 477 U.S. 478, 495, 96 (1986). A fundamental miscarriage of justice occurs if a constitutional violation has probably resulted in the conviction of someone who is "actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995); Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet the "fundamental miscarriage of justice" exception, Lawrenson must show constitutional error coupled with "new reliable evidence — whether . . . exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324.
Lawrenson fails to demonstrate cause for the default of both his federal trial court error claim and his ineffective assistance of counsel claim because he fails to show that some "external factor" prevented his raising the federal claims on either direct appeal or state collateral review.
Lawrenson claims that his trial counsel rendered ineffective assistance by not "properly" cross-examining or impeaching the victim at trial. Lawrenson fails in the federal application to cite any fact or record citation to support this claim. To the extent that he asserts the same allegations presented to the state court in his Rule 3.850 motion, Lawrenson cannot obtain relief. The state post-conviction court summarily denied this claim in Lawrenson's Rule 3.850 motion as follows (Respondent's Exhibit 13, pp. 2-3) (court's record citations omitted):
Counsel's decision to cross-examine and the manner of the cross-examination are strategic decisions entitled to deference. Dorsey v. Chapman, 262 F.3d 1181 (11th Cir. 2001), cert. denied, 535 U.S. 1000 (2002); Fugate v. Head, 261 F.3d 1206, 1219 (11th Cir. 2001). The only question is whether counsel's strategic decision was "reasonable." See Minton v. Sec'y, Dep't of Corr., 271 F. App'x 916, 918 (11th Cir. 2008) ("The Supreme Court has `declined to articulate specific guidelines for appropriate attorney conduct and instead has emphasized that the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'") (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)); Dingle v. Sec'y, Dep't of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) ("Even if counsel's decision . . . appears to have been unwise in retrospect, the decision will be held to have been ineffective assistance only if it was `so patently unreasonable that no competent attorney would have chosen it.'"). A defendant's disagreement with counsel's tactics or strategy will not support a claim of ineffective assistance of counsel.
Even assuming that counsel performed deficiently by not impeaching the victim as he suggests, Lawrenson fails to demonstrate that the suggested impeachment would have resulted in his acquittal. Absent a showing of prejudice, Lawrenson cannot obtain relief because Strickland's requirements remain unsatisfied. Lawrenson fails to meet his burden of proving that the state court either unreasonably applied Strickland or unreasonably determined the facts by rejecting this claim of ineffective assistance of trial counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Lawrenson contends that he is a British national and that trial counsel's failure to alert him of his right to contact the British Consulate after his arrest "proves counsel to [have] been legally unprepared" and resulted in a deprivation of both his right to "counsel of choice" and to the effective assistance of counsel. Lawrenson asserts that "if [he] had or been given the opportunity of gaining `actual competent counsel,' the failures described within this [application] (in all reasonable probability) would not have occurred. A true adversarial testing process would have evolved and the result of the proceedings then, in all reasonable probability, would have been colored in a different light." (Doc. 1, p. 7) Lawrenson further claims that "the first words of advice the consulate would have offered would have been[,] "Do not talk to anyone without the benefit of counsel," which warning would have caused him to "not have uttered another word to either of the police/detectives until [he] did gain the necessary legal representation." (Id.)
The state post-conviction court summarily denied this claim in Lawrenson's Rule 3.850 motion as follows (Respondent's Exhibit 13, p. 3) (court's record citations omitted):
To the extent that he relies on the facts and legal citations in his Rule 3.850 motion to support his federal application, Lawrenson is entitled to no relief.
In his state post-conviction motion Lawrenson relies on Osagiede v. United States, 543 F.3d 399 (7th Cir. 2008),
Even assuming that counsel performed deficiently by not notifying him that he could contact the British consulate, Lawrenson offers no evidence that (1) the British consulate could have offered any assistance that his trial counsel did not or (2) that if counsel had performed as he suggests, the outcome of the trial would have been different. Lawrenson fails to establish that the state post-conviction court either unreasonably applied Strickland or unreasonably determined the facts in denying this ground of ineffective assistance of trial counsel.
Lawrenson contends that his trial counsel rendered ineffective assistance by not presenting either a factual basis or a legal basis to the state court to suppress both Lawrenson's allegedly involuntary statements to the police and an audio recording of a controlled telephone call from the victim to Lawrenson. He argues that "[t]he basis [he] would have argued at the [s]uppression [h]earing was that `coercion and [p]romises' were made to gain [his] words — a legally viable claim worthy of belief." (Doc. 1, p. 8) Lawrenson asserts that counsel's "bare bones" suppression argument "failed to demonstrate to the court that the spirit of Miranda was defeated and this defeat led directly to trial testimony that was not only material but led directly to [his] conviction." (Id.)
Lawrenson did not argue in the state post-conviction court that his Miranda waiver was induced by coercion. Lawrenson avers in his federal application that he exhausted this ground by presentation to the state post-conviction court in his Rule 3.850 motion. (Doc. 1, p. 9) The record shows that in the second ground of his Rule 3.850 motion, Lawrenson challenged trial counsel's performance at the suppression hearing based on counsel's failure to argue, inter alia,
The state post-conviction court summarily denied grounds two and three of Lawrenson's Rule 3.850 motion as follows (Respondent's Exhibit 13, p. 3) (court's record citation omitted):
Lawrenson presents no evidence demonstrating either deficient performance by trial counsel nor resulting prejudice under Strickland based on the allegations of ineffective assistance of counsel raised in grounds two and three of the Rule 3.850 motion. To the extent that Lawrenson alleges that his trial counsel "simply failed to offer [a] factual/legal basis that would have allowed or led the court to grant the motion to suppress," he is not entitled to relief because the transcript of the suppression hearing shows that counsel challenged the validity of the Miranda waiver and argued against the admission of Lawrenson's statements to the police, citing state law cases. (Respondent's Exhibit 4, pp. 90-97) Lawrenson fails to meet his burden of proving that the state court either unreasonably applied Strickland or unreasonably determined the facts in rejecting these allegations of ineffective assistance of trial counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Lawrenson contends that his trial counsel rendered ineffective assistance by advising him to decline a favorable plea offer. Lawrenson alleges that the state offered him a ten-year plea offer before trial but that his trial counsel "both improperly and prejudicially urged [him] to turn down this [p]lea based wholly upon [counsel] informing [him] that [counsel] was going to destroy [the victim] when she took the stand." (Doc. 1, p. 10) Lawrenson asserts that his trial counsel should have advised him that he "could very well lose at trial and, if you lose, you will receive a life sentence and die in prison." (Id.) Lawrenson claims that absent counsel's alleged error, he would have accepted the plea offer and received a shorter sentence.
Lawrenson raised this ground in two parts in his Rule 3.850 motion as follows (Respondent's Exhibit 12, pp. 23-25) (emphasis in original):
The state post-conviction court characterized these allegations as follows (Respondent's Exhibit 13, p. 4):
The state responded that Lawrenson failed to "allege a specific deficiency on the part of [t]rial [c]ounsel as required." (Respondent's Exhibit 14, p. 4) The state further asserted that Lawrenson was entitled to neither an evidentiary hearing nor the opportunity to amend his ineffective assistance of counsel claim because "his claim cannot be made sufficient." (Id. at p. 5) The state post-conviction court agreed with the state and denied relief. (Respondent's Exhibit 15) Lawrenson appealed. The state appellate court reversed the denial of this claim of ineffective assistance of counsel and remanded the case to the trial court to afford Lawrenson the opportunity to amend his post-conviction motion. (Respondent's Exhibit 17) See also Lawrenson v. State, 143 So.3d 1048 (Fla. 2d DCA 2014). Lawrenson filed an amended Rule 3.850 motion in which he claimed that "[i]mmediately prior to the start of [t]rial [the prosecutor] entered into last minute plea negotiations with [counsel]." (Respondent's Exhibit 20, p. 4) Lawrenson alleged that if his counsel had given him "all necessary information" about the prosecutor's ten-year plea offer, he would have accepted the offer and received a sentence significantly less than the life sentence he received after conviction at trial. (Id. at p. 6) Lawrenson requested an evidentiary hearing on this ground in the state post-conviction court. (Id. at p. 8) The state post-conviction court summarily denied the amended Rule 3.850 as follows (Respondent's Exhibit 21, pp. 1-2) (emphasis in original):
The state appellate court affirmed the denial of the amended Rule 3.850 motion in a per curiam decision without a written opinion. (Respondent's Exhibit 23)
Lawrenson's allegations challenge counsel's alleged advice to reject a plea offer based on counsel's assessment of both the strength of the state's case and counsel's ability to undermine the victim's credibility at trial. "The Supreme Court has long recognized that Strickland's two-part inquiry applies to ineffective assistance of counsel arising in the plea process." Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)). McMann v. Richardson, 397 U.S. 759, 771 (1970), explains that a court should determine not whether "counsel's advice [was] right or wrong, but . . . whether that advice was within the range of competence demanded of attorneys in criminal cases." Establishing deficient performance requires proof of more than a strategic predication by counsel that proves wrong. Lafler v. Cooper, 566 U.S. 156, 174 (2012) ("[A]n erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance."). To satisfy Strickland's deficient performance requirement, an applicant must establish that counsel committed "gross error." McMann, 397 U.S. 772.
Lawrenson does not demonstrate that counsel's advice was either completely unreasonable or bore no relation to a reasonable trial strategy. Lawrenson does not claim that counsel precluded him from accepting the state's offer. Lawrenson's argument invites the sort of hindsight analysis that Strickland forbids. See Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."). See also Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991) ("[A]fter the fact testimony concerning [the] desire to plead, without more, is insufficient to establish that but for counsel's alleged advice or inaction, [the applicant] would have accepted the plea offer."). Even accepting his allegations that counsel overestimated the strength of his case, such advice constitutes a bad prediction, not gross misadvice amounting to deficient performance. The record demonstrates that counsel's assessment of the case was not unreasonable as the jury acquitted Lawrenson of one charge and found him guilty of a lesser-included offense on another charge. Consequently, Lawrenson has not satisfied Strickland's performance prong. See Minton v. Sec'y, Dep't of Corr., 271 F. App'x 916, 918 (11th Cir. 2008) ("The Supreme Court has `declined to articulate specific guidelines for appropriate attorney conduct and instead has emphasized that the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'") (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003) (alterations omitted)).
Even assuming Lawrenson establishes deficient performance, he fails to demonstrate resulting prejudice. Lawrenson cites Lafler v. Cooper, 566 U.S. 156 (2012), to support his ground of ineffective assistance of counsel. (Doc. 1, p. 12) Lafler, 566 U.S. at 163-64, explains:
While the alleged ten-year plea deal offers a lower sentence than the life sentence he received, Lawrenson cannot establish prejudice under Lafler. Lawrenson was charged in count one of the information with sexual battery on a person less than twelve, a capital felony that carries a mandatory life sentence under state law. See Respondent's Exhibit 6, p. 633. Lawrenson presents no evidence that the trial court could have imposed a ten-year sentence. Because he cannot demonstrate prejudice as described in Lafler and Strickland, Lawrenson fails to meet his burden of proving that the state court either unreasonably applied Strickland or unreasonably determined the facts in rejecting these allegations of ineffective assistance of trial counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Lawrenson contends that the cumulative effect of trial counsel's alleged deficiencies deprived him of his constitutional right to the effective assistance of counsel. "Without harmful errors, there can be no cumulative effect compelling reversal." United States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984), cert. denied, 469 U.S. 1158 (1985). See also Conklin v. Schofield, 366 F.3d 1191, 1210 (11th Cir. 2004) ("[T]he court must consider the cumulative effect of [the alleged errors] and determine whether, viewing the trial as a whole, [the applicant] received a fair trial as is [his] due under our Constitution."). Because each of the grounds in Lawrenson's federal application lacks merit, no cumulative prejudice results. See Spears v. Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003) ("Because the sum of various zeroes remains zero, the claimed prejudicial effect of [counsel's] cumulative errors does not warrant habeas relief."); Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir.) ("The Supreme Court has not held that distinct constitutional claims can be cumulated to grant habeas relief."), amended on other grounds, 307 F.3d 459 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003).
Accordingly, Lawrenson's application for the writ of habeas corpus (Doc. 1) is
Lawrenson 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, Lawrenson must show that reasonable jurists would find debatable both the merits of the underlying claims and the procedural issues she 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, Lawrenson is entitled to neither a COA nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is
ORDERED.
