Cruz v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

EFRAIN CAMARILL CRUZ,

Petitioner,

v. Case No. 5:16-cv-531-Oc-39PRL

SECRETARY, DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

_______________________________

ORDER

I. Introduction

Petitioner, Efrain Camarill Cruz, a former detainee of the

Citrus County Jail, proceeds on a petition for writ of habeas

corpus under 28 U.S.C. § 2254, filed by counsel (Doc. 1; Petition).

Petitioner challenges a 2013 Citrus County judgment of conviction.

Respondents filed a response (Doc. 12; Response), and Petitioner’s

counsel replied (Doc. 22; Reply).1

Petitioner raises three grounds for habeas relief: (1) his

guilty plea was not voluntary because of his mental illness, or

alternatively, the ineffective assistance of counsel for failure

to argue Petitioner was incompetent to enter a guilty plea and for

1 The Court will cite to the exhibits in the Appendix as “Ex.”

The Court will reference page numbers using the Bates stamps where

provided (primarily for Ex. A). Otherwise, the document’s internal

page numbering will be used, not the Court’s electronic docket

system numbering.

failure to request a competency hearing under the Florida Rules of

Criminal Procedure; (2) the ineffective assistance of counsel for

failure to move to dismiss count four of the indictment; and (3)

his convictions and sentence under Florida Statutes sections

847.0135(3)(a) and (4)(a) violate double jeopardy principles.

Petition at 10, 17, 18.

II. Procedural History

Petitioner, a Mexican citizen, was convicted on August 19,

2013, and sentenced to serve 90 days in the county jail followed

by three years of probation with possible deportation. Petition at

1. As of the date of this Order, Petitioner completed his sentence.

However, when Petitioner filed his Petition, on August 19, 2016,

he met the “custody” requirement under § 2254 because his

probationary term had not expired. Id. It appears Petitioner faces

a possible collateral consequence related to his conviction

because he alleges he was subject to deportation as a result. Id.

Petitioner was arrested on June 22, 2012, following an

undercover operation. Ex. A at 27. According to the probable cause

affidavit, Petitioner used his “email account to seduce, solicit,

lure or entice or attempt to seduce, solicit, lure or entice a

parent of a child to commit any illegal sex act.” Id. at 28. An

undercover agent, Deputy Phil Graves, posing as an adult single

mother, posted an advertisement online, titled “ready for

training–W4M.” Id. That same day, Petitioner responded to the

advertisement using an online email service. Id. Deputy Graves

responded immediately and identified the child as a 13-year-old

girl. Id. Petitioner exchanged numerous text messages with whom he

thought was the parent of the child. Id. The two also exchanged

pictures through email. Id. Petitioner spoke by phone with the

supposed parent and the supposed daughter, talking to the daughter

about engaging in sex acts with her. Id. at 28-29. Deputy Graves

provided Petitioner an address and the two arranged to meet. Id.

at 29. When Petitioner arrived, officers arrested him,

confiscating two cell phones and a thumb drive device, each of

which was believed to contain pertinent information. Id. at 59,

66.2 After being read his rights, Petitioner stated he made a

mistake. Id.

On July 16, 2012, Petitioner was charged by Information with

four counts: (1) use of the internet or device to lure a child

identified as Tiffany Wright; (2) use of the internet or device to

lure the parent of a child; (3) traveling to meet a minor,

identified as Jenny,3 for illegal sexual conduct; and (4) attempted

lewd/lascivious battery on a child identified as Jenny. Id. at 38.

2 A search warrant subsequently was issued and executed for

the devices. Ex. A at 64-68.

3 The Information references two fictitious minors: Tiffany

Wright and Jenny. Ex. A at 38. The parties do not dispute

Petitioner believed there was only one minor involved. It is

unclear why two different names are referenced in the Information.

On August 19, 2013, Petitioner entered a guilty plea as “an

open plea to the Court,” not as a result of a plea negotiation

with the prosecutor. Id. at 3, 4. After Petitioner was sworn in,

Petitioner’s attorney, Mr. Grant, informed the trial judge he spoke

with Petitioner prior to the proceedings to explain the terms of

the plea, including the sentence:

MR. GRANT: Mr. Cruz, Judge, for the

record, reads and writes English, is extremely

articulate. He, in addition to that, Your

Honor, did acquire his GED and one year of

college. He’s been in the United States for 16

years. I have, Judge, in this case, we have

not taken any depositions . . . because Mr.

Cruz, through the decision-making process, has

agreed to take the deal that the State of

Florida – well, that the court is going to

offer.4

. . . .

Specifically, Your Honor, we discussed it, I

gave him my professional opinion, the

likelihood of success at trial which was

limited in this case. There are post-Miranda

admissions written and oral. There were text

messages, there were – the government had a

very strong case

. . . .

I want to make sure that I have advised Mr.

Cruz that as a foreign national, it is my

opinion that he will be deported from the

4 Petitioner’s plea was not negotiated with the prosecutor.

As such, there was no written plea agreement. Ex. A at 3. Defense

counsel stated the plea was the result of “a judge’s conference”

at which the parties seemingly discussed whether Petitioner would

change his plea in exchange for “90 days, three years, standard

probation.” Id.

United States upon . . . entering of the plea

of guilty.

. . . .

I want to make it abundantly clear that my

client understands that, is prepared to go to

Mexico if the United States government does,

in fact, deport him.

Id. at 5-6. Mr. Grant also informed the judge the following:

Your Honor, we have discussed that [my client

is] waiving his right to a jury trial, waiving

the right to confront witnesses, waiving his

right to an appeal other than for any legal

[sic] sentence, that he has waived – that he’s

going to be getting DNA from the Court, and

that he’s waiving all his other constitutional

rights that relate to a jury trial and the

right to confront witnesses and challenge the

witnesses and the evidence that the government

may present against him. In light of that,

we’re here to change our plea today, enter a

plea of guilty, receive 90 days in the Citrus

County Jailhouse and three years standard

probation.

Id. at 9.

Upon receiving Mr. Grant’s assurances that Petitioner wished

to enter a guilty plea understanding the implications and potential

consequences, the judge engaged Petitioner in the following

exchange:

THE COURT: Mr. Cruz, you heard your

attorney’s representations. Is that how you

want to handle this matter?

THE DEFENDANT: Yes, sir.

THE COURT: Are you presently under

the influence of any alcohol or intoxicant

that would negatively affect your good

judgment here today?

THE DEFENDANT: No, sir.

THE COURT: Have you ever been found

to be insane, incompetent, or mentally

challenged?

THE DEFENDANT: No, sir.

THE COURT: Okay. Are you comfortable

in the English language?

THE DEFENDANT: Yes, sir.

THE COURT: Have you been able to

understand everything I’ve said in English as

well as what [your attorney] has said in

English?

THE DEFENDANT: Yes, I did, sir.

THE COURT: Very good. Now, then, Mr.

Cruz, you heard about your situation regarding

your immigration status, residency status,

and/or likely deportation status. Do you

understand that this plea could and likely

would subject you to deportation by the

federal authorities, you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: [A] guilty plea is one

saying that I am guilty of this offense, that

you heard your attorney indicate the rights

you’re giving up. Do you need me to go over

each one of those rights individually like

he’s already done in your presence?

THE DEFENDANT: No, sir.

Id. at 10-11.

The trial judge then stated the factual predicate for the

plea, as follows:

Mr. Cruz, the facts of the case would tell me

that on or about June the 22nd, of 2012 . . .

you did knowingly utilize a computer online

service, Internet service, local bulletin

board, or other electronic status storage

device to seduce, solicit, lure, entice a

Tiffany Wright believed by you, Mr. Cruz, to

be a child to commit an illegal act as defined

by Florida [laws], this by conversing or

chatting or sending emails or messages to this

person.

Id. at 11-12.

The judge further explained Petitioner communicated with

someone Petitioner believed to be the parent of the child to

solicit the parent’s consent for the child to participate in an

illegal act. Id. at 12. The judge explained Petitioner traveled

some distance “to conduct sexual contact with Jenny or Tiffany or

somebody else utilizing this electronic data storage matter,” and

explained:

In other words, you traveled for the purpose

of having sex with Jenny and that further on

or about this same date, that you did attempt

to engage in sexual activity with Jenny who

was believed by you to be a person over the

age of 12 but less than 16, this [sic] by

attempting to have sexual contact . . . .

Id. at 13.

After setting forth the factual predicate, the judge

explained to Petitioner that Mr. Grant was not appointed as

Petitioner’s immigration attorney and reiterated Petitioner’s plea

may result in his deportation. Id. at 14. The judge said:

If you are, in fact, deported, you can’t come

back later on and say that Mr. Grant has done

anything improper or has given you bad advice

or anything. He’s given you the best that he

has and you know your situation. Is that

correct, Mr. Cruz?

Id. Petitioner responded, “Yes, sir.”5 The judge explained to

Petitioner his guilty plea would result in the waiver of certain

rights:

So you’re forever waiving your rights to

appeal or challenge any of the facts of this

case as we’ve already discussed the facts of

the case or any legalities of any decisions

that have already been made by me and of

course, you still have the right to, you know,

have an immigration hearing . . . . You

understand that?

Id. at 14-15. Petitioner responded, “Yes, sir.” Id. at 15.

Petitioner agreed Mr. Grant “answered all of [his] questions to

complete and utter satisfaction,” and Mr. Grant confirmed

Petitioner was “competent.” Id. The judge explained Petitioner

would be designated a sexual offender and would be subject to the

requirements of the Jimmy Ryce and Lunsford Acts. Id. at 19-20.

The judge accepted Petitioner’s plea of guilty, finding it “freely

and voluntarily entered into after knowing waiver of rights” and

after the factual basis was established. Id. at 17.

5 Notably, Petitioner’s immigration attorney was present in

the courtroom when Petitioner entered his guilty plea. Ex. A at

23.

Petitioner, through counsel, filed a direct appeal, id. at

82, which he voluntarily dismissed, Ex. B. Petitioner’s counsel

then filed a motion under Florida Rule of Criminal Procedure 3.850

requesting the trial court vacate Petitioner’s judgment. Ex. D-5.

The trial court denied the 3.850 motion. Ex. D-3; Ex. G.6 Petitioner

appealed the trial court’s ruling. Ex. H. On August 18, 2015, the

appellate court affirmed without opinion. Ex. M. The appellate

court denied Petitioner’s motion for rehearing on September 2,

2015, Ex. O, and the mandate issued on October 8, 2015, Ex. P.

III. Timeliness & Exhaustion

Respondents assert the Petition appears to have been timely

filed7 and the claims have been exhausted in state court except

for one portion of ground one. See Response at 9, 11. Respondents

contend “the portion of claim one relying on ‘Exhibit A’ . . . has

not been exhausted in state court,” due to Petitioner’s failure to

present a copy of the exhibit. Id. at 11. Exhibit A is a letter

from a neuropsychologist, Dr. Ginart, who evaluated Petitioner at

the request of Petitioner’s lawyer in furtherance of his

postconviction proceedings. See Petition at 10, 26. Petitioner

6 The trial court issued two orders on the 3.850 motion. Ex.

D-3; Ex. G. On the day the court issued the first order, it reserved

ruling on one claim and directed the state to respond to that

claim. Ex. D-2. After the state responded, the trial court issued

a final order. Ex. G.

7 For purposes of this Order, the Court construes the Petition

as timely filed.

asserts Florida law does not require him to have provided the

exhibit to the state court because he referenced Dr. Ginart’s

opinion in his 3.850 motion. Reply at 3-4.

Upon review of the record, the Court finds Petitioner’s

position is well-founded. In his 3.850 motion, Petitioner asserted

he suffered a mental illness, and his counsel referenced the

neuropsychologist’s opinion, stating “Dr. Ginart has concluded

[Petitioner] was incompetent to enter a guilty plea.” Ex. D-5 at

6. Petitioner was not required to attach the written opinion to

his motion. See Mann v. State, 21 So. 3d 894, 895 (Fla. 2d DCA

2009) (recognizing Florida law does not require a prisoner to

support his sworn motion with evidence). The Court concludes

Petitioner has exhausted all claims in his Petition. Accordingly,

in analyzing ground one, the Court will consider, to the extent

relevant, the exhibit Plaintiff attaches to his Petition.

IV. Evidentiary Hearing

Petitioner requests an evidentiary hearing on grounds one and

two. See Petition at 14, 15, 18. Petitioner has the burden to

establish the need for a federal evidentiary hearing. Chavez v.

Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011).

A district court is not required to hold an evidentiary hearing if

the record refutes the asserted factual allegations or otherwise

precludes habeas relief. A petitioner fails to demonstrate an

evidentiary hearing is warranted based upon conclusory

allegations. Id. at 1061.

In determining whether an evidentiary hearing is warranted,

a federal court should take into consideration the deferential

standards of federal habeas review under § 2254. Schriro v.

Landrigan, 550 U.S. 465, 474 (2007). “Therefore, before a habeas

petitioner may be entitled to a federal evidentiary hearing . . .

he must demonstrate a clearly established federal-law error or an

unreasonable determination of fact on the part of the state court,

based solely on the state court record.” Landers v. Warden, Atty.

Gen. of Ala., 776 F.3d 1288, 1295 (11th Cir. 2015).

After a thorough review of the record, the Court finds

Petitioner fails to carry his burden to demonstrate the need for

an evidentiary hearing. The Court finds the pertinent facts are

fully developed in this record or the record otherwise precludes

habeas relief. Consequently, this Court can “adequately assess

[Petitioner’s] claim[s] without further factual development.”

Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003).

V. Standard of Review

The Antiterrorism and Effective Death Penalty Act (AEDPA)

governs a state prisoner’s federal petition for habeas corpus.

See § 2254. “‘The purpose of AEDPA is to ensure that federal habeas

relief functions as a guard against extreme malfunctions in the

state criminal justice systems, and not as a means of error

correction.’” Ledford v. Warden, Ga. Diagnostic & Classification

Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.

Ct. 1432 (2017) (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

As such, federal habeas review of final state court decisions is

“‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting

Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).

The first task of a federal habeas court is to identify the

last state court decision, if any, that adjudicated the

petitioner’s claims on the merits. Marshall v. Sec’y Fla. Dep’t of

Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue an opinion explaining its rationale for its decision to

qualify as an adjudication on the merits. Wilson v. Sellers, 138

S. Ct. 1188, 1192 (2018). Where the state court’s adjudication on

the merits is unaccompanied by an explanation, the district court

should presume the unexplained decision adopted the reasoning of

the lower court:

the federal court should “look through” the

unexplained decision to the last related

state-court decision that does provide a

relevant rationale. It should then presume

that the unexplained decision adopted the same

reasoning.

Id. The presumption is rebuttable by a showing that the higher

state court’s adjudication most likely relied on different grounds

than the lower state court’s reasoned decision. Id. at 1192, 1196.

When a state court has adjudicated a petitioner’s claim on

the merits, a federal court cannot grant habeas relief unless the

state court’s adjudication of the claim was “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.” § 2254(d). The burden of proof is high; “clear error

will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728

(2017). A state court’s factual findings are “presumed to be

correct” unless rebutted “by clear and convincing evidence.” §

2254(e)(1).

As such, “AEDPA erects a formidable barrier to federal habeas

relief for prisoners whose claims have been adjudicated in state

court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). “Federal courts

may grant habeas relief only when a state court blundered in a

manner so ‘well understood and comprehended in existing law’ and

‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe v. Warden, 834 F.3d

1323, 1338 (11th Cir. 2016), cert. denied, 137 S. Ct. 2298 (2017).

(quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)).

The AEDPA standard is intended to be difficult for a

petitioner to meet. Richter, 562 U.S. at 102. A district court’s

obligation is to “train its attention” on the legal and factual

basis for the state court’s ruling, not to “flyspeck the state

court order or grade it.” Meders v. Warden, Ga. Diagnostic Prison,

911 F.3d 1335, 1349 (11th Cir. 2019) (citing Wilson, 138 S. Ct. at

1191-92). A federal district court must give appropriate deference

to a state court decision on the merits. Wilson, 138 S. Ct. at

1192. Appropriate deference requires the court to defer to the

reasons articulated by the state, if they are reasonable. Id.

Petitioner asserts AEDPA’s presumption of correctness does

not apply because the trial court did not conduct an evidentiary

hearing. Petition at 15, 18. In support of his contention,

Petitioner cites three opinions from other circuits.8 Petitioner

provides no binding precedent holding that a state court’s factual

conclusions are not entitled to a presumption of correctness solely

because the court reaches those conclusions without the benefit of

an evidentiary hearing. In fact, the Eleventh Circuit has held an

evidentiary hearing is not a prerequisite to trigger AEDPA’s

presumption of correctness, recognizing:

8 Alston v. Redman, 34 F.3d 1237 (3d Cir. 1994); Miller v.

Champion, 161 F.3d 1249 (10th Cir. 1998), abrogation recognized by

Smith v. Aldridge, 904 F.3d 874, 886 (10th Cir. 2018); and Valdez

v. Cockrell, 288 F.3d 702 (5th Cir. 2002). Not only are these

decisions not binding, one of the opinions upon which Petitioner

relies is a dissent from a petition for rehearing en banc. See

Valdez, 288 F.3d at 702. In the underlying opinion, the Fifth

Circuit held a “full and fair hearing is not a precondition to

according § 2254(e)(1)’s presumption of correctness to state

habeas court findings of fact.” Valdez v. Cockrell, 274 F.3d 941,

951 (5th Cir. 2001) (emphasis added).

[T]here does not appear to be any binding

Supreme Court or Eleventh Circuit precedent on

whether § 2254(d)(2) deference is conditioned

on a state court having held an evidentiary

hearing . . . . More broadly, the Supreme Court

seems to have foreclosed a per se rule that a

state court must conduct an evidentiary

hearing to resolve every disputed factual

question. . . . Thus, we conclude that an

evidentiary hearing in state court cannot be

a requirement for § 2254(d)(2) deference for

all disputed factual issues in a state court

proceeding.

Landers v. Warden, Atty. Gen. of Ala., 776 F.3d 1288, 1297 (11th

Cir. 2015). In accordance with binding precedent, this Court must

give appropriate deference to the relevant state court decision.

Wilson, 138 S. Ct. at 1192.

VI. Ineffective Assistance of Counsel

Petitioner claims he received the ineffective assistance of

counsel in violation of the Sixth Amendment to the United States

Constitution. To demonstrate his trial counsel was ineffective,

Petitioner must satisfy a rigorous two-prong test by showing (1)

counsel’s performance was deficient, meaning it fell below an

objective standard of reasonableness, and (2) counsel’s deficient

performance prejudiced his defense. Strickland v. Washington, 466

U.S. 668, 688, 692 (1984). Restated, a criminal defendant’s Sixth

Amendment right to effective assistance of counsel “is denied when

a defense attorney’s performance falls below an objective standard

of reasonableness and thereby prejudices the defense.” Yarborough

v. Gentry, 540 U.S. 1, 5 (2003) (citing Wiggins v. Smith, 539 U.S.

510, 521 (2003); Strickland, 466 U.S. at 687). The prejudice prong

requires a showing that there is a reasonable probability that,

but for counsel’s deficiencies, the result of the proceeding would

have been different. Strickland, 466 U.S. at 695.

The two-prong Strickland test applies when a petitioner

challenges his counsel’s performance with respect to the entry of

a guilty plea such that a petitioner still must demonstrate

counsel’s performance was deficient. Hill v. Lockhart, 474 U.S.

52, 58-59 (1985). To establish prejudice, however, a petitioner

must show 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.” Id. at 59.

Notably, there is no “iron-clad rule requiring a court to

tackle one prong of the Strickland test before the other.” Ward v.

Hall, 592 F.3d 1144, 1163 (11th Cir. 2010). Since both prongs of

the two-part Strickland test must be satisfied to show a Sixth

Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-

versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th

Cir. 2000)).

When a petitioner claims his counsel was ineffective,

“[r]eviewing courts apply a ‘strong presumption’ that counsel’s

representation was ‘within the wide range of reasonable

professional assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr.,

822 F.3d 1248, 1262 (11th Cir. 2016) (quoting Strickland, 466 U.S.

at 689). When the “strong presumption” standard of Strickland is

applied “in tandem” with the highly deferential AEDPA standard, a

review of the state court’s determination as to the “performance”

prong is afforded double deference. Richter, 562 U.S. at 105.

Accordingly, the question for a federal court is not whether

trial counsel’s performance was reasonable, but “whether there is

any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Id. If there is “any reasonable argument

that counsel satisfied Strickland’s deferential standard,” a

federal court may not disturb a state-court decision denying the

claim. Id. As such, “[s]urmounting Strickland’s high bar is never

an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

VII. Findings of Fact & Conclusions of Law

A. Ground One

Petitioner asserts his guilty plea was involuntary because he

was mentally incompetent at the time. Petition at 10.

Alternatively, Petitioner argues his counsel was ineffective for

failure to request a competency hearing under the Florida Rules of

Criminal Procedure. Id.9 Petitioner raised these claims in ground

one of his 3.850 motion, Ex. D-5 at 6.

9 Respondents contend Petitioner’s argument that counsel

failed to request a competency hearing under the Florida Rules of

Criminal Procedure presents solely a state-law issue. Response at

17. Petitioner presents his competency claim as a denial of

In its order, the trial court paraphrased Petitioner’s first

claim as follows:

In light of [Petitioner’s] mental illness,

[he] was not able to fully comprehend his

guilty plea and therefore the plea was

involuntary. . . . Alternatively, the

[Petitioner] alleges that his defense Counsel

was ineffective by failing to properly

evaluate and argue that [he] was incompetent

to enter a guilty plea and failing to request

a hearing pursuant to [Florida Rule of

Criminal Procedure] 3.210.

D-3 at 2. The trial court found the record conclusively refuted

Petitioner’s assertions. Ex. D-3 at 4.

As to Petitioner’s claim of incompetency, the trial court

referenced the plea transcript, which the court found revealed the

following:

[Petitioner] had no criminal history, was a

gainfully employed artist, was married,

understood the English language, was not under

the influence of any alcohol or intoxicant,

had never been found incompetent or mentally

challenged, understood the rights he was

giving up in his plea agreement, understood

that he would be subject to deportation,

understood the sexual offender registration

and monitoring requirements, was satisfied

with the representation of his attorney, and

that there was simply no indication of any

mental incompetency.

effective assistance of counsel, invoking the Sixth Amendment.

Therefore, his claim is cognizable under § 2254.

Id. at 4 (emphasis added). The trial court further found

Petitioner’s claim that counsel was ineffective for failing to

request a competency hearing was without merit. Id.

The Fifth District Court of Appeal (DCA) affirmed without

opinion. Ex. M. To the extent the Fifth DCA affirmed the trial

court’s denial on the merits, the Court will address the claim in

accordance with the deferential standard for federal court review

of state court adjudications. See Wilson, 138 S. Ct. at 1194. As

such, the Court will “look through” the unexplained opinion to the

trial court’s order on Petitioner’s 3.850 motion. Id.10 The trial

court’s factual findings are presumed correct unless Petitioner

overcomes the presumption with clear and convincing evidence. See

§ 2254(e).

After a review of the record and the applicable law, the Court

concludes the state court’s adjudication of the claim was not

contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and

was not based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceedings.

Thus, Petitioner is not entitled to relief on this claim.

10 In looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court

presumes the appellate court “adopted the same reasoning.” Wilson,

138 S. Ct. at 1194.

Even if the state court finding is not entitled to deference,

Petitioner’s claim fails. A habeas petitioner who asserts he was

tried or convicted while he was incompetent raises a substantive

due process claim. James v. Singletary, 957 F.2d 1562, 1571-72

(11th Cir. 1992). “It has long been established that the conviction

of an incompetent defendant denies him or her the due process of

law guaranteed in the Fourteenth Amendment.” Id. at 1573. To

succeed on a substantive competency claim, a petitioner must

demonstrate by a preponderance of the evidence that he was in fact

incompetent at the relevant time. Medina v. Singletary, 59 F.3d

1095, 1106 (11th Cir. 1995); see also Johnston v. Singletary, 162

F.3d 630, 637 n.7 (11th Cir. 1998).

The relevant standard for assessing a criminal defendant’s

mental competency is set forth in Dusky v. United States, 362 U.S.

402, 402 (1960). The Dusky standard requires a court to determine

whether a defendant “has sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding—

and whether he has a rational as well as factual understanding of

the proceedings against him.” Id. See also Godinez v. Moran, 509

U.S. 389, 401-02 (1993) (holding the Dusky standard similarly

applies in the context of guilty pleas). To demonstrate actual

incompetence, a petitioner’s burden is exceedingly high. Sheley v.

Singletary, 955 F.2d 1434, 1438 (11th Cir. 1992). “Courts in habeas

corpus proceedings should not consider claims of mental

incompetence [to enter a plea] where the facts are not sufficient

to positively, unequivocally, and clearly generate a real,

substantial, and legitimate doubt as to the mental capacity of the

petitioner.” Id. (quoting Reese v. Wainwright, 600 F.2d 1085, 1091

(5th Cir. 1979)). When a petitioner contends he was substantively

incompetent to enter a plea, he is entitled to an evidentiary

hearing only “upon a presentation of ‘clear and convincing evidence

[raising] a substantial doubt’ as to his or her competency.” James,

957 F.2d at 1572 (quoting Fallada v. Dugger, 819 F.2d 1564, 1568

(11th Cir. 1987)).

Whether a petitioner has the present ability to consult with

his lawyer and understand the proceedings may be gleaned from

hearing and trial transcripts: “The best evidence of [a

petitioner’s] mental state . . . is the evidence of his behavior”

at the relevant time, such as during trial or during a plea

hearing. See Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,

1259 (11th Cir. 2002). A petitioner must do more than simply assert

he has low intelligence or was suffering from a mental deficiency

at the time:

“[N]ot every manifestation of mental illness

demonstrates incompetence to stand trial;

rather, the evidence must indicate a present

inability to assist counsel or understand the

charges.” Similarly, neither low

intelligence, mental deficiency, nor bizarre,

volatile, and irrational behavior can be

equated with mental incompetence to stand

trial.

Medina, 59 F.3d at 1107 (internal citations omitted). In Wright,

the court held the petitioner failed to carry his heavy burden

even though he had been declared incompetent to stand trial

seventeen years previously, he pled not guilty by reason of

insanity in the underlying criminal case, and expert witnesses

testified (in support of his insanity plea) that he was “actively

psychotic” at the time he committed the crime. Id.

The court reasoned the petitioner, at the relevant times,

acted “perfectly normal,” communicated with others, including his

attorney, and understood the charges. Id. As such, the court found

immaterial that, months after his trial in the underlying case,

the defendant was declared incompetent to stand trial on subsequent

charges. Id. n.4. See also Medina, 59 F.3d at 111 (finding relevant

that petitioner coherently testified at trial and at sentencing,

spoke “rationally and with understanding,” and when he acted out

during trial, responded appropriately to the judge’s reprimands);

Sheley, 955 F.2d at 1438 (holding the petitioner failed to carry

his heavy burden where the trial judge’s questioning of him showed

“verbal coherence” even though the petitioner claimed he had taken

psychotropic medication on the day of the plea and he had a history

of mental illness).

Here, Petitioner has not met his high burden to demonstrate

by a preponderance of the evidence he was incompetent when he

entered his guilty plea. See Medina, 59 F.3d at 1106. The record

demonstrates Petitioner was able to communicate with his attorney

and the judge; understood the judge’s questions, the charges

against him, and the waiver of rights associated with his plea;

exhibited no confusion; and responded appropriately when the judge

asked him questions. Ex. A at 10-11. Petitioner chose, through

“the decision-making process,” to plead guilty and understood his

plea resulted in the waiver of certain rights and could result in

his deportation. Id. at 6, 7. Petitioner’s rational and appropriate

responses, and his full and lucid participation in the plea

proceeding, demonstrate Petitioner’s reasonable degree of rational

understanding of the proceedings.

Petitioner’s reliance on Storey v. State, 32 So. 3d 105 (Fla.

2d DCA 2009), is misplaced. See Petition at 12. In Storey, the

state appellate court remanded the case to the trial court to

conduct an evidentiary hearing, finding the plea colloquy did not

clearly refute the petitioner’s claim of incompetency. Storey, 32

So. 3d at 107. Petitioner here argues the plea colloquy similarly

did not refute his claim of incompetency and he, therefore, should

have been afforded an evidentiary hearing. Petition at 12.

Importantly, it is not the province of this Court to review

whether the trial court should have held an evidentiary hearing on

Petitioner’s 3.850 motion. This Court’s review is limited to

whether the trial court’s findings were contrary to or involved an

unreasonable application of federal law. § 2254(d). Here, as

discussed, the state court’s conclusion that counsel satisfied the

Strickland standard is supported by the record. And the plea

colloquy demonstrates Petitioner was competent to enter a guilty

plea. Based on the record, Petitioner decidedly had the ability to

consult with his lawyer and understand the plea proceedings.

Petitioner’s only proffered evidence of his alleged

incompetence is the opinion of neuropsychologist Dr. Ginart. Dr.

Ginart’s opinion does not “positively, unequivocally, and clearly

generate a real, substantial, and legitimate doubt as to the mental

capacity” of Petitioner at the time he entered his guilty plea.

Sheley, 955 F.2d at 1438. First, Dr. Ginart concludes Petitioner,

“at the time of the evaluation,” functioned at the “[e]xtremely

[l]ow range of functioning,” and prior to Petitioner’s legal

problems, he “was not considered to be much higher than just above

the upper level of the [m]ild [m]ental [r]etardation range (i.e.,

in the lower end of the [b]orderline range of functioning.”

Petition at 26. Mild mental retardation, however, does not equate

to incompetency under the Dusky standard. See Medina, 59 F.3d at

1107 (“[N]ot every manifestation of mental illness demonstrates

incompetence to stand trial; rather, the evidence must indicate a

present inability to assist counsel or understand the charges.”).

Second, Dr. Ginart explains Petitioner “suffered a mild

traumatic head injury during his childhood.” Petition at 26. But

Dr. Ginart does not explain the nature of the injury or its effects

on Petitioner at the time of the plea hearing. In fact, Dr. Ginart

offers no explanation as to how Petitioner’s head injury impacted

Petitioner at all. Instead, Dr. Ginart explains in general terms

how “[v]ictims of mild head injuries” are impacted by such

conditions and react to stressors. Id.

Finally, and most importantly, Dr. Ginart concludes

Petitioner “was cognitively, intellectually, and psychiatrically

incompetent to enter a plea (on his own), under stress/duress

without adequate legal representation.” Id. (emphasis added).

Petitioner was represented by counsel who explained the nature of

the charges, the rights Petitioner waived by entering a plea, and

potential consequences of his plea, including possible

deportation. Ex. A at 9-11. Aside from Petitioner’s assertion that

his counsel failed to request a competency hearing, there is no

suggestion Petitioner was denied adequate legal representation. In

fact, the trial judge stated Petitioner’s counsel provided

“excellent representation[].” Ex. A at 17, 25. Considering the

circumstances under which Petitioner entered his guilty plea (with

counsel), Dr. Ginart’s opinion can be interpreted to imply

Petitioner was competent at the time.

In short, Dr. Ginart does not conclude that on the day

Petitioner entered his plea, he exhibited neurological problems

such that he was unable to understand the proceedings or aid in

his defense. Nor could Dr. Ginart have reached such a conclusion

because his opinion was based on an evaluation of Petitioner after

the fact,11 and there is no indication Dr. Ginart reviewed the plea

transcript or mental health/medical records generated close in

time to the plea hearing. Indeed, Dr. Ginart states his opinion is

based solely on the results of a neuropsychological evaluation he

administered. See Petition at 26.

To the extent Petitioner may have demonstrated cognitive

impairments or limitations at the time Dr. Ginart examined him,

there is nothing in the record to demonstrate Petitioner was

incompetent under the Dusky standard at or near the time he entered

his plea. See Wright, 278 F.3d at 1259 (holding the defendant’s

declared incompetence seven months after trial was “not enough to

counter the best evidence of what his mental condition was at the

only time that counts,” which was the time of the proceedings

against him). Upon review of the plea transcript, Petitioner

demonstrated a “sufficient present ability to consult with his

lawyer . . . [and] he had a rational as well as factual

understanding of the proceedings against him.” Id. at 1257 (quoting

Dusky, 362 U.S. at 402).

11 The date of the neurological examination and the date on

which Dr. Ginart rendered his opinion are unknown because Dr.

Ginart’s letter is undated. However, it is undisputed Dr. Ginart’s

examination was conducted after the plea hearing and in aid of

Petitioner’s postconviction proceedings. See Petition at 10; Ex.

D-5.

A claim of ineffective assistance for counsel’s failure to

request a competency hearing requires a petitioner to demonstrate

both deficient performance and prejudice under the Strickland

standard. As with other Strickland claims, a counsel’s performance

is presumed reasonable; a petitioner must show “counsel’s

representation fell below an objective standard or

reasonableness.” Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d

464, 477 (11th Cir. 2012) (quoting Strickland, 466 U.S. at 688).

Under the prejudice prong, however, a petitioner must show “there

was a reasonable probability that he would have received a

competency hearing and been found incompetent had counsel

requested the hearing.” Id. at 479 (emphasis in original). Under

this standard, the prejudice prong of the ineffective assistance

claim demands the same showing as that under a substantive

competency claim. Under both claims, a petitioner must demonstrate

he was actually incompetent at the time of the plea. Id. As such,

the evidence supporting a substantive competency analysis is

“largely the same” as the evidence supporting an ineffective-

assistance-of-counsel analysis. Id. at 481-82.

Even when a defendant exhibits some questionable behavior

during the proceedings and has a history of mental issues, a trial

counsel’s “decision not to request a competency hearing [is] within

[counsel’s] reasoned professional judgment.” Id. at 477-78. For

instance, in Lawrence, the defendant, who had “some limitations in

his functioning,” pleaded guilty. The court accepted his guilty

plea after counsel represented the defendant understood the

proceedings. Id. at 467. During the penalty phase, the defendant

reported having flashbacks and asked to be excused from the

courtroom during certain testimony. Id. at 469.

The court held trial counsel’s decision not to request a

competency hearing was reasonable even though trial counsel

admitted at the postconviction evidentiary hearing that, in

hindsight, she erred by not requesting a competency evaluation of

her client. Id. at 478. The court noted trial counsel’s performance

is to be viewed objectively, and counsel’s after-the-fact self-

critique carried little weight. Id. The court found significant

that trial counsel did not state the defendant “was ever unable to

communicate with [her] or assist . . . in his defense.” Id.

Additionally, after the defendant reported hallucinating, the

trial court engaged the defendant in a lengthy discussion, after

which trial counsel concluded the defendant was simply having a

“bout with his conscience.” Id. Accordingly, the court held trial

counsel’s decision not to request a competency hearing “did not

fall below an objectively reasonable standard of performance.” Id.

at 478-79.

With respect to the prejudice (actual incompetency) prong,

the court held the state court’s determination was not an

unreasonable application of Strickland, even though two mental

health experts testified at the postconviction evidentiary hearing

(five years after the plea) that the defendant was incompetent at

the time of his plea and during the penalty phase. Id. at 472,

479, 480. The court reasoned, in part, that the plea colloquy with

the defendant and trial counsel demonstrated the defendant

understood the proceedings and entered his plea willingly. Id. at

479. The court held as follows:

While the state trial court did not make a

specific competency finding, the trial court’s

detailed colloquy, [the petitioner’s]

rational and consistent responses to the trial

court’s questions, and the state trial court’s

findings that [the petitioner’s] guilty plea

was knowing and voluntary nonetheless support

the reasonableness of the Florida Supreme

Court’s conclusion on Strickland prejudice.

Id.

Here, Petitioner fails to demonstrate his counsel performed

deficiently. Petitioner offers no evidence to show a reasonably

competent attorney would have questioned his competence to enter

a plea. Indeed, nothing in the record even hints at a possible

competency issue before or at the time Petitioner entered his plea.

The first time a competency issue arose was during Petitioner’s

postconviction proceedings when Dr. Ginart evaluated him. There is

no indication defense counsel knew Petitioner sustained a head

injury when he was a child or functioned at a low level of

intellectual ability. Even if counsel had known as much, these

conditions do not speak to incompetency at the relevant time, which

was when Petitioner entered his plea. See, e.g., Lawrence, 700

F.3d at 478-79.

Regardless of Petitioner’s level of functioning at the post-

plea neuropsychological examination conducted by Dr. Ginart, the

plea colloquy demonstrates a reasonably competent attorney would

have had no reason to question whether Petitioner had a rational,

as well as factual understanding of his criminal proceedings.

During the plea colloquy, Petitioner’s counsel told the judge he

spent time speaking with Petitioner, who counsel described as a

good person, articulate, and educated, and the trial judge noted

on the record that Petitioner’s attorney “indicated [Petitioner

was] competent.” Ex. A at 15, 24, 34. There is nothing to indicate

Petitioner struggled to comprehend the proceedings or had

difficulty communicating or understanding, which would have put

his attorney on notice of a competency concern. Defense counsel

stated he explained the strength of the state’s case to Petitioner,

and Petitioner chose, through “the decision-making process,” to

plead guilty rather than have his attorney take depositions. Id.

at 24, 25.12

12 It is worth highlighting Petitioner received an extremely

lenient sentence as a result of his guilty plea. The judge

sentenced him to six months in jail followed by three years of

probation. Ex. A at 78. At the plea proceedings, Petitioner’s

counsel expressed the strength of the state’s case against

Petitioner. Id. at 6. If convicted, Petitioner faced a minimum of

84 months in prison. Id. at 78. Not only did Petitioner receive a

much lighter sentence than the minimum under the sentencing

Even assuming counsel acted deficiently, Petitioner cannot

meet the high threshold of prejudice because he fails to

demonstrate he was incompetent when he entered his plea, as

analyzed in detail above. Petitioner does not allege he suffered

from mental conditions or illnesses that are associated with

“incompetency” under Dusky; he offers no evidence of a history of

mental illness or documentation of such; and there is no evidence

Petitioner was receiving or had received treatment for a mental

illness. Indeed, at the plea hearing, Petitioner denied ever having

been “found to be insane, incompetent, or mentally challenged.”

Ex. A at 10.

In sum, considering the totality of the circumstances

surrounding Petitioner’s plea, Petitioner fails to carry his heavy

burden to demonstrate he was actually incompetent at the time he

entered his guilty plea. As such, he concomitantly fails to

demonstrate counsel’s alleged deficient performance prejudiced his

defense.

B. Ground Two

In ground two, Petitioner claims his counsel was ineffective

for his failure to move to dismiss the attempted lewd or lascivious

battery charge (count four). Petition at 17. Petitioner contends

an element of that offense requires the victim be of a certain

scoresheet, but the sentence was even lower than what the state

had offered Petitioner, which was a prison sentence. Id. at 17.

age, and the victim was undisputedly outside the statutory age-

range. Id. Respondents argue Petitioner cannot demonstrate

deficient performance because Petitioner was charged with attempt,

not a completed offense. Response at 22-23. Additionally,

Respondents maintain, Petitioner cannot demonstrate prejudice

because the state’s case against him was strong, and Petitioner

received an “extremely lenient downward departure sentence” under

his plea agreement. Id. at 23-24.

Petitioner exhausted this claim in ground two of his

postconviction motion, Ex. D-5 at 8, and by appealing the trial

court’s order to the Fifth DCA, Ex. H at 1; Ex. I at 12. The Fifth

DCA affirmed the trial court’s decision without opinion. Ex. M.

Under Wilson, this Court presumes the Fifth DCA adopted the

reasoning of the trial court, and the state has not attempted to

rebut this presumption. See 138 S. Ct. at 1192. As such, the Court

will “look through” the unexplained opinion to the trial court’s

order on Petitioner’s 3.850 motion. Id.

In its order denying Petitioner’s motion for postconviction

relief, the trial court set forth the applicable two-prong

Strickland test. Ex. D-3 at 3, 5-6. In denying ground two of

Petitioner’s postconviction motion, the trial court found the

primary authority upon which Petitioner relied was inapposite. Id.

at 5 (citing Pamblanco v. State, 111 So. 3d 249, 252 (Fla. 5th DCA

2013)). The trial court recognized Pamblanco stands for the

proposition that “for the completed offense of solicitation of a

child under the age of sixteen to commit lewd or lascivious

conduct, the request must be made to someone under sixteen.” Ex.

D-3 at 5. The trial court also acknowledged the “victim” in

Petitioner’s case was actually an undercover officer and therefore

over the age of sixteen. Id. However, the court continued,

Petitioner was charged with “attempted” lewd/lascivious conduct,

and “Pamblanco makes clear that the holding does not apply to

‘attempted’ lewd/lascivious charges.” Id. The trial court further

stated, “[e]ven if the sentence . . . is eventually vacated as

illegal, there is no showing that confidence in the outcome, based

on the remaining charges, is undermined.” Id. at 5-6.

Upon review, the record demonstrates the trial court properly

applied the Strickland standard and found no deficient performance

on the part of counsel and no prejudice to Petitioner’s defense.

As such, Petitioner is unable to establish the state court’s

decision is inconsistent with Supreme Court precedent, including

Strickland, or is based on an unreasonable determination of the

facts. Under AEDPA’s deferential standard, Petitioner is not

entitled to habeas relief on ground two.

C. Ground Three

In ground three, Petitioner asserts his convictions on an

Information charging both “solicitation” and “traveling” under two

subsections of Florida Statutes section 847.0135 (subsections

(3)(a) and (4)(a)) violate double jeopardy because those charges

were based on the same conduct. Petition at 18-19. Petitioner

states the postconviction court’s reasoning, in denying this

ground, has since been rejected by the Second DCA in Shelley v.

State, 134 So. 3d 1138, 1141-42 (Fla. 2d DCA 2014).13 Respondents

contend Petitioner’s “negotiated guilty plea waived any double

jeopardy claims regarding his convictions.” Response at 25.

Petitioner exhausted this claim in ground three of his

postconviction motion, Ex. D-5 at 10, and by appealing the trial

court’s order to the Fifth DCA, Ex. H at 1; Ex. I at 12. The Fifth

DCA affirmed the trial court’s decision without opinion. Ex. M. In

its order denying Petitioner’s motion for postconviction relief,14

the trial court found Petitioner’s “convictions under

subsection[s] (3)(a) and (3)(b) were for separate offenses; thus,

no double jeopardy violations occurred.” Ex. G at 3-4. The record

shows the Fifth DCA affirmed the decision of the trial court in

denying this ground. Ex. M. Under Wilson, this Court presumes the

13 Significantly, the Shelley opinion was decided in 2014,

after Petitioner was charged (July 16, 2012) and after he entered

his plea (August 19, 2013).

14 The trial court addressed the double jeopardy claim in its

final order on Petitioner’s 3.850 motion after directing the state

to respond to the issue. Ex. D-2. The trial court’s initial order

on Petitioner’s postconviction motion addressed his alternative

ground for relief, ineffective assistance of counsel for failure

to move to dismiss the duplicative count in the Information. Ex.

D-5 at 10. Petitioner has not asserted ineffective assistance of

counsel in ground three in his Petition before this Court.

Fifth DCA adopted the reasoning of the trial court, and the state

has not attempted to rebut this presumption. See 138 S. Ct. at

1192. As such, the Court will “look through” the unexplained

opinion to the trial court’s order on Petitioner’s 3.850 motion.

Id.

After a review of the record and the applicable law, the Court

concludes the state court’s adjudication of the claim was not

contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and

was not based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceedings.

Thus, Petitioner is not entitled to relief on this claim.

Even if the state court finding is not entitled to deference,

Petitioner’s claim fails. The Supreme Court makes clear that a

defendant who voluntarily and with counsel’s advice pleads guilty

to criminal charges waives his right to contest the conviction on

double jeopardy grounds. United States v. Broce, 488 U.S. 563, 569

(1989).

A plea of guilty and the ensuing conviction

comprehend all of the factual and legal

elements necessary to sustain a binding, final

judgment of guilt and a lawful sentence.

Accordingly, when the judgment of conviction

upon a guilty plea has become final and the

offender seeks to reopen the proceeding, the

inquiry is ordinarily whether the underlying

plea was both counseled and voluntary.

Id. A guilty plea is not only a confession but a recognition that

the defendant committed the substantive crimes in the charging

document. Id. at 570. In Broce, the defendants argued their

convictions violated double jeopardy because they engaged in only

one conspiracy but entered guilty pleas to two separate charges of

conspiracy, as alleged in the indictment. Id. at 565, 570. The

Court held their pleas resulted in a waiver of such a collateral

attack even though their attorney did not discuss double jeopardy

issues with them beforehand. Id. at 572, 573. While the defendants

may have “made a strategic miscalculation,” their pleas were

entered voluntarily and freely and with the advice of counsel. Id.

at 574. The Court held, “[r]elinquishment [of the right to object

on double jeopardy grounds] derives not from any inquiry into a

defendant’s subjective understanding of the range of potential

defenses, but from the admissions necessarily made upon entry of

a voluntary plea of guilty.” Id. at 573-74.

Upon review of the applicable law and the record, the Court

finds Plaintiff freely and voluntarily entered his plea with the

assistance of competent counsel, thus waiving his right to

collaterally attack his conviction on double jeopardy grounds. See

id. at 565, 570. Importantly, Petitioner does not contest the

voluntariness of his plea, and the plea colloquy demonstrates his

plea was in fact voluntarily entered. Petitioner specifically

acknowledged he was waiving certain rights, which were explained

by his attorney and the judge; he confirmed he wished to proceed

with the plea under the factual predicate provided by the judge

and on his attorney’s representations that Petitioner understood

the consequences of his plea; he acknowledged his plea would result

in his being labeled a sexual offender and could subject him to

deportation; he agreed his attorney answered all his questions;

and he affirmed he was not under the influence of any intoxicants

at the time. Ex. A at 9-10, 14, 15. Petitioner’s solemn

declarations in court carry a strong presumption of truth.

Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also Winthrop-

Redin v. United States, 767 F.3d 1210, 1217 (11th Cir. 2014)

(recognizing statements made under oath at a plea colloquy are

presumed true). Thus, Petitioner’s representations that he

understood the plea agreement and the rights he was giving up

“constitute a formidable barrier in any subsequent collateral

proceedings.” Blackledge, 431 U.S. at 73-74.

The Broce Court acknowledged an exception to the general rule

“barring collateral attack on a guilty plea,” which narrowly

applies when a presiding trial judge should have determined the

charge, on the face of the charging document, was not one the state

could constitutionally prosecute. 488 U.S. at 574, 575. In Broce,

the exception did not apply because the defendants pleaded guilty

to “indictments that on their face described separate

conspiracies.” Id. at 576. See also Dermota v. United States, 895

F.2d 1324, 1325, 1326 (11th Cir. 1990) (holding the defendant’s

voluntary and counseled guilty plea waived a double jeopardy

challenge because the indictment described separate offenses and

the prosecutor “unquestionably [was] entitled to prosecute

simultaneously” for both charges even though a conviction under

both charges may have violated double jeopardy).

The exception to the general rule of waiver recognized by the

Broce Court does not apply here. There is no indication on the

face of the Information the charges were not ones the state could

constitutionally prosecute. 488 U.S. at 575. The Information

charged separate offenses against Petitioner. Ex. A at 38. Count

one charged Petitioner with “use of internet or device to lure a

child” under section 847.0135(3) and count three charged

Petitioner with “traveling to meet minor for illegal sexual

conduct” under section 847.0135(4)(a). Each charge named a

seemingly different victim: count one referenced a victim named

“Tiffany Wright,” and count three referenced a victim named

“Jenny.” Id.

Even though Tiffany Wright and Jenny were in fact references

to the same fictitious child,15 the Information, to which

Petitioner pleaded guilty, identified two separate charges against

different victims. Id. The victims were not described as the same

15 The record is clear Petitioner believed he was traveling

to meet one child, not two. Ex. A at 28-29.

person in the Information. That the trial judge, during the plea

colloquy, referenced the victim(s) as “Jenny or Tiffany or somebody

else” suggests it was not readily apparent the two charges

referenced the same victim. Ex. A at 12-13. There is also no

indication the Information on its face was constitutionally

infirm.16

The state court opinion upon which Petitioner heavily relies

does not entitle Petitioner to federal habeas relief. See Shelley

v. State, 134 So. 3d 1138, 1141-42 (Fla. 2d DCA 2014). The Shelley

court held a conviction under both subsections (3)(a) and (4)(a),

when based upon the same transaction, violates double jeopardy:

“[D]ual convictions for soliciting and traveling in the course of

one criminal transaction or episode violate the prohibition

against double jeopardy.” Id. The defendant in Shelley entered a

guilty plea, but explicitly reserved his right to, and did, appeal

the trial court’s denial of his motion to dismiss the duplicative

charges as violating double jeopardy. Id. at 1139. Petitioner here

16 Petitioner seemingly invokes the limited exception

recognized by Broce, though he relies upon a Florida Supreme Court

decision instead. See Petition at 18 n.12; Reply at 7 (citing

Novaton v. State, 634 So. 2d 607 (Fla. 1994)). Petitioner argues

that because his plea was an “open” plea, not a “negotiated” plea,

he did not waive his right to later object on double jeopardy

grounds. The binding precedent does not distinguish between an

open or a negotiated plea, however. Broce, 488 U.S. at 574;

Dermota, 895 F.2d at 1325. Rather, as the Supreme Court held, the

“inquiry is . . . confined to whether the underlying plea was both

counseled and voluntary.” Broce, 488 U.S. at 569. As discussed,

Petitioner’s plea was both counseled and voluntary.

did no such thing; on the contrary, he explicitly waived his rights

when he entered his plea. Ex. A at 9-11, 14-15.

Additionally, the Shelley court acknowledged, “convictions

for both soliciting and traveling may be legally imposed in cases

in which the State has charged and proven separate uses of computer

devices to solicit.” Shelley, 134 So. 3d at 1142. The record here

suggests the prosecutor may have been able to prove “separate uses

of computer devices to solicit,” which would have resulted in

“legally imposed” convictions under both subsections. Id. For

instance, the search warrant authorized the search of two mobile

phones and a digital storage device, all of which were seized from

Petitioner’s possession upon his arrest. Ex. A at 65. The trial

court, in its final order on Petitioner’s 3.850 motion, noted

Petitioner used the devices to exchange 117 text messages, 16 phone

calls, and numerous emails with the supposed parent of a 13-year-

old girl. Ex. G at 3.

Moreover, at the early stage of the proceedings when

Petitioner pleaded guilty, the prosecutor’s theory was premised,

in part, on the solicitation and the traveling offenses occurring

on different days, see Ex. K at 15, which could have supported

convictions under both subsections of the statute. See Shelley,

134 So. 3d at 1142 (citing with approval cases that held

convictions for both soliciting and traveling are lawful if based

on conduct that occurred on different dates).

Whether the prosecutor would have been able to prove the

separate violations against Petitioner is a different inquiry than

whether Petitioner freely and voluntarily entered a plea to the

Information, which charged him under both subsections (3)(a) and

(4)(a). See Dermota, 895 F.2d at 1325 (distinguishing the case on

the facts because in the precedent upon which the defendant relied,

the defendant was convicted of the two offenses, which the court

held violated double jeopardy, while the defendant in Dermota

pleaded guilty).

To the extent the facts were not fully developed when

Petitioner entered his plea, he expressly waived his right to

object based on double jeopardy principles. Broce, 488 U.S. at

572. Petitioner may not now “withdraw his plea merely because he

[has] discover[ed] . . . that his calculus misapprehended the

quality of the State’s case. . . . [A] voluntary plea of guilty

intelligently made in the light of the then applicable law does

not become vulnerable because later judicial decisions indicate

that the plea rested on a faulty premise.” Id. at 572. For these

reasons, Petitioner is not entitled to relief on ground three.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED.

2. This action is DISMISSED WITH PREJUDICE.

3. The Clerk shall enter judgment accordingly and close

this case.

4. If Petitioner appeals the denial of his Petition, the

Court denies a certificate of appealability.!’ The Clerk shall

terminate from the pending motions report any motion to proceed on

appeal as a pauper that may be filed in this case. Such termination

shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this 23rd day of

September, 2019.

4 De

af J. DAVIS

United States District Judge

Jax-6

Cc:

Counsel of Record

17 This Court should issue a certificate of appealability only

if a petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make this

substantial showing, Petitioner “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)). Upon due consideration, this Court will deny

a certificate of appealability.

42