Weck v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

RANDALL WECK,

Petitioner,

v. Case No. 5:17-cv-3-OC-34PRL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Randall Weck, an inmate of the Florida penal system, initiated this action

on December 16, 2016, by filing, with the assistance of counsel, a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1) in the United States District

Court Northern District of Florida. On December 28, 2016, the Northern District

transferred the case to this Court. See Doc. 3. In the Petition, Weck challenges a 2015

state court (Citrus County, Florida) judgment of conviction for grand theft, three counts of

theft, two counts of vehicular theft, and burglary of a structure. Weck raises two grounds

for relief. See Petition at 17-24.1 Respondents have submitted a memorandum in

opposition to the Petition. See Response to Petition (Response; Doc. 8) with exhibits

(Resp. Ex.). On June 20, 2017, Weck filed a brief in reply. See Petitioner’s Reply to State’s

Response (Reply; Doc. 14.). This case is ripe for review.

1 For purposes of reference, the Court will cite the page number assigned by the

Court’s electronic docketing system.

II. Procedural History

On March 16, 2009, the State of Florida charged Weck by way of Information with

grand theft with property damage (count one), three counts of grand theft - $300 or more

but less than $20,000 (counts two, three, seven), two counts of grand theft of vehicles

(counts four and six), and burglary of a structure - non-dwelling (count five). Resp. Ex. 1.

On October 5, 2009, Weck entered a negotiated no-contest plea as to all seven counts.

Resp. Ex. 2. The same day, the circuit court adjudicated Weck guilty and sentenced him

as a youthful offender to a term of probation of three years as to each count, with the

sentence imposed on count two running consecutive to the sentence imposed on count

one and with counts three through seven running concurrent with each other and counts

one and two. Resp. Ex. 4. Weck did not appeal.

On December 27, 2009, Weck violated condition five of his probation by

committing the criminal offense of possession of alcohol by a person under twenty-one.

Resp. Ex. 5. On May 7, 2010, the circuit court granted Weck’s motion to dismiss the

violation of probation (VOP) warrant and continue Weck’s probation with the same

previously imposed conditions. Resp. Ex. 7.

In September of 2010, Weck violated conditions three and nine of his probation by

changing his residence and leaving the county without permission and failing to comply

with instructions. Resp. Ex. 9. On March 11, 2011, the circuit court found Weck in violation

of his probation, revoked his probation, and then reinstated probation again with the

previous conditions. Resp. Ex. 10.

On September 21, 2012, the Florida Department of Corrections (FDOC) filed a

technical violation notification for Weck’s failure to pay the cost of supervision, make

restitution and court cost payments, and complete community service requirements.

Resp. Ex. 12. The circuit court determined no further action was required. Id.

Weck again violated his probation in February and March of 2014. Resp. Ex. 13.

In February of 2014, Weck was arrested for driving without a license, which violated

condition five of his probation. Id. In March of 2014, Weck failed to pay the cost of

supervision, pay restitution, complete community service requirements, and obtain his

GED. Id. On July 15, 2014, Weck admitted he violated the terms of his probation and the

circuit court revoked his probation and sentenced Weck to a term of incarceration of

eleven years in prison as to count one and five years in prison as to counts two through

seven, with all counts running concurrently. Resp. Exs. 15; 16. Weck, through counsel,

filed a motion to modify his sentence pursuant to Florida Rule of Criminal Procedure

3.800(c) (Rule 3.800(c) Motion) on August 20, 2014. Resp. Ex. 17. On September 9,

2014, the circuit court granted the Rule 3.800(c) Motion and set aside the sentence

imposed on July 15, 2014. Resp. Ex. 18. The circuit court noted that Weck’s VOP plea

remained in place though. Id. On November 20, 2014, the circuit court revoked Weck’s

previous probation and placed him on community control for two years with the previous

probation conditions still applying. Resp. Exs. 19; 20. Weck did not appeal.

In November and December of 2014, Weck violated two conditions of his

community control by testing positive for marijuana and failing to remain confined to his

approved residence. Resp. Exs. 21; 22. On April 1, 2015, Weck admitted to violating the

conditions of his community control. Resp. Exs. 23; 24. The same day, the circuit court

revoked community control and sentenced Weck to a term of incarceration of eleven

years in prison as to count one and five years in prison as to counts two through seven,

with all counts running concurrently. Id. Weck did not appeal.

On June 3, 2015, Weck filed a pro se motion to correct illegal sentence pursuant

to Florida Rule of Criminal Procedure 3.800(a) (Rule 3.800(a) Motion), in which he argued

the circuit court erred when it failed to resentence him as youthful offender and to give

him credit for four years, four months, and fifteen days of time served on probation. Resp.

Ex. 25. The circuit court denied the Rule 3.800(a) Motion on June 19, 2015. Resp. Ex.

26. Weck did not appeal.

On August 12, 2015, Weck filed a pro se motion for postconviction relief pursuant

to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. 27. In his

Rule 3.850 Motion, Weck alleged that his counsel misadvised when counsel told him that

Weck’s admission to his probation officer that he used marijuana was a valid admission.

Id. Weck contended that the admission was given under false presentences and should

not have been introduced at the hearing on his violation of community control. Id. On

September 2, 2015, the circuit court denied Weck’s Rule 3.850 Motion. Resp. Ex. 28.

Weck appealed, Resp. Ex. 29, and the Fifth District Court of Appeal (Fifth DCA) per

curiam affirmed the denial without a written opinion on February 2, 2016. Resp. Ex. 31.

The Fifth DCA issued the Mandate on March 11, 2016. Resp. Ex. 34.

On April 18, 2016, Weck, with the assistance of counsel, filed a petition for belated

appeal to challenge the judgment and sentence imposed on April 1, 2015. Resp. Ex. 35.

The Fifth DCA remanded the case to the circuit court to hold an evidentiary hearing on

the petition and file a recommendation with the Fifth DCA concerning whether to grant

the petition. Resp. Ex. 38. On August 25, 2016, the circuit court determined that Weck

did not timely communicate to his counsel his desire to file an appeal and recommended

denying the petition. Resp. Ex. 39. Four days later, on August 29, 2016, the Fifth DCA

denied Weck’s petition for belated appeal. Resp. Ex. 40. Weck appealed the denial of his

petition for belated appeal to the Fifth DCA. Resp. Exs. 41; 42. On September 9, 2016,

the Fifth DCA issued an order to show cause why the appeal should not be dismissed for

lack of jurisdiction. Resp. Ex. 43. Weck did not respond to the order to show cause and,

on September 21, 2016, the Fifth DCA dismissed the appeal. Resp. Ex. 44.

III. One-Year Limitations Period

This action is timely filed within the one-year limitations period. See 28 U.S.C. §

2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the

need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d

1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a

federal court must consider whether such a hearing could enable an applicant to prove

the petition’s factual allegations, which, if true, would entitle the applicant to federal

habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t

of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017).

“It follows that if the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary hearing.”

Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record

before the Court. Because the Court can “adequately assess [Weck’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an

evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a

state prisoner’s federal petition for habeas corpus. See Ledford v. Warden, Ga.

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

S. Ct. 1432 (2017). “‘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.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38

(2011) (quotation marks omitted)). 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) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court decision,

if any, that adjudicated the claim on the merits. See Marshall v. Sec’y, Fla. Dep’t of Corr.,

828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion

explaining its rationale in order for the state court’s decision to qualify as an adjudication

on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United States

Supreme Court recently stated:

[T]he 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.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by

showing that the higher state court’s adjudication most likely relied on different grounds

than the lower state court’s reasoned decision, such as persuasive alternative grounds

that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at

1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation

of the claim unless the state court’s decision (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States;” or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited

scope of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for claims of

state courts’ erroneous legal conclusions. As explained by the

Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.

1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two

distinct clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows for relief

only “if the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the

state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.” Id. at

413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable

application” clause allows for relief only “if the state court

identifies the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for claims of

state courts’ erroneous factual determinations. Section

2254(d)(2) allows federal courts to grant relief only if the state

court’s denial of the petitioner’s claim “was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1), which

imposes a burden on the petitioner to rebut the state court’s

factual findings “by clear and convincing evidence.” See Burt

v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348

(2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct.

2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual determination is

not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first

instance.’”[2] Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting

Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175

L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S. Ct. 2298

(2017). Also, deferential review under § 2254(d) generally is limited to the record that was

before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)’s “requires an examination

of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners

whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16

(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, 834

F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a

“difficult” one to meet. Richter, 562 U.S. at 102. Thus, to the extent that a petitioner’s

claims were adjudicated on the merits in the state courts, they must be evaluated under

28 U.S.C. § 2254(d).

2 The Eleventh Circuit has described the interaction between § 2254(d)(2) and §

2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th

Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254 habeas

action in federal court, a petitioner must exhaust all state court remedies that are available

for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust state

remedies, the petitioner must “fairly present[]” every issue raised in his federal petition to

the state’s highest court, either on direct appeal or on collateral review. Castille v.

Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim,

“state prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28 U.S.C. §

2254(b)(1), thereby giving the State the “‘“opportunity to pass

upon and correct” alleged violations of its prisoners’ federal

rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887,

130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v.

Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438

(1971)). To provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each appropriate

state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal

nature of the claim. Duncan, supra, at 365-366, 115 S. Ct.

887; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct.

1728, 144 L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies results in a

procedural default which raises a potential bar to federal habeas review. The United

States Supreme Court has explained the doctrine of procedural default as follows:

Federal habeas courts reviewing the constitutionality of a

state prisoner’s conviction and sentence are guided by rules

designed to ensure that state-court judgments are accorded

the finality and respect necessary to preserve the integrity of

legal proceedings within our system of federalism. These

rules include the doctrine of procedural default, under which a

federal court will not review the merits of claims, including

constitutional claims, that a state court declined to hear

because the prisoner failed to abide by a state procedural rule.

See, e.g., Coleman,[3] supra, at 747–748, 111 S. Ct. 2546;

Sykes,[4] supra, at 84–85, 97 S. Ct. 2497. A state court’s

invocation of a procedural rule to deny a prisoner’s claims

precludes federal review of the claims if, among other

requisites, the state procedural rule is a nonfederal ground

adequate to support the judgment and the rule is firmly

established and consistently followed. See, e.g., Walker v.

Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179

L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct.

612, 617–618, 175 L.Ed.2d 417 (2009). The doctrine barring

procedurally defaulted claims from being heard is not without

exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and

prejudice from a violation of federal law. See Coleman, 501

U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been procedurally

defaulted, a federal court may still consider the claim if a state habeas petitioner can show

either (1) cause for and actual prejudice from the default; or (2) a fundamental miscarriage

of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to

establish cause,

the procedural default “must result from some objective factor

external to the defense that prevented [him] from raising the

claim and which cannot be fairly attributable to his own

conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.

1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[5]

Under the prejudice prong, [a petitioner] must show that “the

3 Coleman v. Thompson, 501 U.S. 722 (1991).

4 Wainwright v. Sykes, 433 U.S. 72 (1977).

5 Murray v. Carrier, 477 U.S. 478 (1986).

errors at trial actually and substantially disadvantaged his

defense so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

“[A] claim for ineffective assistance of counsel, if both exhausted and not

procedurally defaulted, may constitute cause.” Henry v. Warden, Ga. Diag. Prison, 750

F.2d 1226, 1230 (11th Cir. 2014); see also Carrier, 477 U.S. at 488; Philmore v. McNeil,

575 F.3d 1251, 1264 (11th Cir. 2009) (citing Edwards v. Carpenter, 529 U.S. 446, 451

(2000)) (“An attorney’s constitutional ineffectiveness in failing to preserve a claim for

review in state court may constitute ‘cause’ to excuse a procedural default.”). But the

petitioner must first present his or her ineffective assistance claim to the state courts as

an independent claim before he may use it to establish cause to excuse the procedural

default of another claim. Carrier, 477 U.S. at 488; see also Henderson v. Campbell, 353

F.3d 880, 896 n.22 (11th Cir. 2003). If the secondary ineffective assistance claim is itself

procedurally defaulted, the “procedurally defaulted ineffective assistance of counsel claim

can serve as cause to excuse the procedural default of another habeas claim only if the

habeas petitioner can satisfy the ‘cause and prejudice’ standard with respect to the

ineffective assistance claim itself.” Henderson, 353 F.3d at 897 (citing Edwards, 529 U.S.

at 446 and Carrier, 477 U.S. at 478).

In the absence of a showing of cause and prejudice, a petitioner may receive

consideration on the merits of a procedurally defaulted claim if the petitioner can establish

that a fundamental miscarriage of justice, the continued incarceration of one who is

actually innocent, otherwise would result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive consideration

on the merits of his procedurally defaulted claim. “[I]n an

extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually

innocent, a federal habeas court may grant the writ even in

the absence of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This exception

is exceedingly narrow in scope,” however, and requires proof

of actual innocence, not just legal innocence. Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it is more

likely than not that no reasonable juror would have convicted him’ of the underlying

offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.

Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual

innocence must be based on reliable evidence not presented at trial.” Calderon v.

Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity

of such evidence, in most cases, allegations of actual innocence are ultimately summarily

rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective assistance of

counsel. That right 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) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521

(2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person challenging a

conviction must show that “counsel’s representation fell below

an objective standard of reasonableness.” [Strickland,] 466

U.S. at 688, 104 S. Ct. 2052. A court considering a claim of

ineffective assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range” of

reasonable professional assistance. Id., at 689, 104 S. Ct.

2052. The challenger’s burden is to show “that counsel made

errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must demonstrate “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id., at 694, 104 S. Ct.

2052. It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id., at

693, 104 S. Ct. 2052. Counsel’s errors must be “so serious as

to deprive the defendant of a fair trial, a trial whose result is

reliable.” Id., at 687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of any iron-

clad rule requiring a court to tackle one prong of the Strickland test before the other.”

Ward, 592 F.3d at 1163. 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)). As stated in Strickland: “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is a most

deferential one.” Richter, - U.S. at -, 131 S. Ct. at 788. But

“[e]stablishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult. The

standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is

doubly so.” Id. (citations and quotation marks omitted). “The

question is not whether a federal court believes the state

court’s determination under the Strickland standard was

incorrect but whether that determination was unreasonable -

a substantially higher threshold.” Knowles v. Mirzayance, 556

U.S. 111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s deferential

standard,” then a federal court may not disturb a state-court

decision denying the claim. Richter, - U.S. at -, 131 S. Ct. at

788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance,

556 U.S. 111, 123 (2009). In other words, “[i]n addition to the deference to counsel’s

performance mandated by Strickland, the AEDPA adds another layer of deference--this

one to a state court’s decision--when we are considering whether to grant federal habeas

relief from a state court’s decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004). As such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

In Ground One, Weck argues that his counsel was ineffective at the April 1, 2015

violation of community control hearing when counsel misadvised him regarding the

admissibility of his coerced admission to testing positive for marijuana. Petition at 19-21.

According to Weck, probation officer Cowart prematurely disposed of the positive

urinalysis test kit and coerced Weck into signing the VOP admission form. Id. at 20. Weck

alleges that he told counsel about these facts, but counsel advised Weck that the circuit

court “would not likely believe his version of the events and that it was in his best interest

to enter a guilty plea.” Id. Additionally, Weck contends that counsel failed to advise him

that the exclusionary rule applies in VOP hearings. Id. But for this misadvice, Weck

contends he would not have pled guilty to violating his probation. Id. The circuit court

rejected this claim; however, Weck contends that the circuit court’s analysis was contrary

to the Supreme Court’s holding in Hill v. Lockhart, 474 U.S. 52 (1985) because the circuit

court used the wrong standard in evaluating his claim of prejudice. Id. at 21. Weck

maintains that the circuit court used the general Strickland prejudice standard but should

have used the prejudice standard announced in Hill that requires a postconviction court

to determine whether there was a reasonable probability that counsel’s errors resulted in

Weck entering a plea he would not have entered otherwise. Id.

Weck raised a similar claim in his Rule 3.850 Motion. Resp. Ex. 27. The circuit

court denied this claim, explaining in part:

In the context of a guilty plea a defendant must show a

reasonable probability that “but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to

trial.” Brazeail v. State, 821 So.[]2d 364, 367-68 (Fla. 1st DCA

2001). In determining whether a defendant would have

insisted on going to trial, the court will “consider the credibility

of the defendant’s assertion that he would have insisted on

going to trial. If the defense was meritless, the defendant’s

claim carries much less weight.” Grosvenor v. State, 874

So.[]2d 1176 (Fla. 2004). Moreover, “a court should consider

the totality of the circumstances surrounding the plea,

including such factors as whether a particular defense was

likely to succeed at trial, the colloquy between the defendant

and the trial court at the time of plea, and the difference

between the sentence imposed under the plea and the

maximum possible sentence the defendant faced at a trial.”

Id. at 1181-82.

In his motion, Defendant alleges his positive drug

screens were obtained under “false pretense” and that he

advised his attorney. Defendant claims his trial counsel was

ineffective for failing to challenge the existence of the positive

drug screen and advising the Defendant to admit to the

violation. The Court finds these arguments to be without merit.

In the instant case, the Defendant admitted to a violation of

probation. The Court held a thorough colloquy regarding his

rights and advice from his attorney. As noted above

Defendant’s violation was based on [a] positive drug screen

as well as [a] failure to remain in [his] approved residence.

Whether the drug results would have been proven the

Defendant would have been violated for another violation.

Moreover, Defendant was previously found in violation of

probation. As noted by trial counsel Defendant was provided

numerous opportunities with reinstatements after at least

three violations of probation. However, Defendant failed to

abide by the terms of his probation. The Defendant has failed

to demonstrate his counsel’s advice was outside the broad

range of reasonably competent performance under prevailing

professional standards.

Resp. Ex. 28 (record citations omitted). The Fifth DCA per curiam affirmed the denial

without a written opinion. Resp. Exs. 31; 34.

To the extent that the Fifth DCA decided these claims on the merits,6 the Court will

address these claims in accordance with the deferential standard for federal court review

of state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of these claims 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. Here, the circuit court understood

the relevant prejudice standard, citing to it in its order, and found that Weck failed to

demonstrate deficient performance and prejudice. Moreover, the circuit court’s analysis

demonstrates it reviewed the totality of the circumstances in finding Weck could not

demonstrate prejudice. Thus, Weck is not entitled to relief on the basis of this claim.

Nevertheless, even if the Fifth DCA’s adjudication of this claim is not entitled to

deference, the claim in Ground One is meritless. In the context of convictions arising from

6 In looking through the appellate court’s per curiam affirmance to the circuit court’s

“relevant rationale,” the Court presumes that the appellate court “adopted the same

reasoning.” Wilson, 138 S. Ct. at 1194.

guilty or no contest pleas, a petitioner establishes prejudice if he or she can demonstrate

that there was a reasonable probability that he or she would have proceeded to trial (or

in this case a revocation hearing) if not for counsel’s errors. Hill, 474 U.S. at 58-60. In

evaluating prejudice under the Hill standard, postconviction courts should consider the

strength of the prosecution’s case, any available defenses, the plea colloquy and

negotiations, and potential sentencing exposure. See Hill, 474 U.S. at 59-60; see also

Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (noting that “to obtain relief on this type of

claim, a petitioner must convince the court that a decision to reject the plea bargain would

have been rational under the circumstances.”). The United States Supreme Court has

noted that “[s]olemn declarations in open court carry a strong presumption of verity.”

Blackledge v. Allison, 431 U.S. 63, 74 (1977). Under Florida law, “[a] rule 3.850 motion

cannot be used to go behind representations the defendant made to the trial court, and

the court may summarily deny post-conviction claims that are refuted by such

representations.” Kelley v. State, 109 So. 3d 811, 812-13 (Fla. 1st DCA 2013). By

entering a guilty plea, a defendant waives any right to have his or her counsel investigate

or put forward a defense. Smith v. State, 41 So. 3d 1037, 1040 (Fla. 1st DCA 2010) (citing

Davis v. State, 938 So. 2d 555, 557 (Fla. 1st DCA 2006)). Similarly, “[w]here a defendant

enters a plea and swears that he is satisfied with his counsel's advice, he may not later

attack counsel's effectiveness for failure to investigate or defend the charge.” Id. Indeed,

in Florida, a defendant should not receive an evidentiary hearing “when the basis of the

claim is that he lied under oath at the relevant hearing.” Polk v. State, 56 So. 3d 804, 808

(Fla. 2d DCA 2011); see also Alfred v. State, 71 So. 3d 138, 139 (Fla. 4th DCA 2011) (“A

defendant is bound by his sworn answers during a plea colloquy and cannot later disavow

those answers by asserting that he lied during the colloquy at counsel's direction.”).

The record reflects that at the April 1, 2015 VOP hearing, Weck testified, under

oath, that he was satisfied with his counsel’s advice and that he admitted to using

marijuana and failing to remain confined to his approved residence. Resp. Ex. 23 at 5-6.

Weck signed a positive drug urinalysis statement in which he admitted submitting a

positive drug test for marijuana and admitted to using marijuana after the November 20,

2014 sentencing. Id. at 14. Weck is bound by these statements and his representations

to the circuit court alone would defeat his claim here as he essentially alleges that he lied

under oath. See Blackledge, 431 U.S. at 74; Kelley, 109 So. 3d at 812-13; Smith, 41 So.

3d at 1040; Polk, 56 So. 3d at 808; Alfred, 71 So. 3d at 139.

Ultimately, Weck entered an open plea admitting to violating his community control

and the circuit court sentenced him to eleven years in prison, which is far less than he

could have faced had he not entered the plea. Once community control is revoked, a court

can “impose any sentence which it might have originally imposed before placing the

probationer on probation or the offender into community control.” § 948.06(2)(b), Fla. Stat.

Count one was a first-degree felony punishable by up to thirty years in prison. §

775.082(3)(b)1), Fla. Stat. The remaining six counts were third degree felonies

punishable by up to five years in prison. § 775.082(3)(e), Fla. Stat. If Weck proceeded to

a revocation hearing, he could have faced a total of sixty years in prison if the circuit court

determined Weck substantively violated his community control and sentenced him to the

statutory maximum on each count and ran each count consecutively. Accordingly, Weck’s

eleven-year sentence following his open plea to the circuit court afforded him a lesser

sentence than he could have faced.

Additionally, according to Weck, counsel’s misadvice amounted to counsel telling

Weck “that the judge would not likely believe his version of the events and that it was in

his best interest to enter a guilty plea” and failed to advise Weck that the exclusionary

rule applied in revocation proceedings. Petition at 20. Counsel’s alleged advice here is

hardly coercive as counsel merely communicated his belief that the circuit court would

not find his claim credible. Nothing in Weck’s allegations show his counsel threatened

him to enter the plea or misadvised him. To the extent Weck may claim his counsel’s

advice was erroneous based on the facts Weck provided him, the Court finds Weck has

provided only conclusory allegations as to how the probation officer allegedly coerced

him into signing the admission. As such, Weck has failed to carry his burden of proof. See

Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (recognizing that vague,

conclusory, speculative, or unsupported claims cannot support an ineffective assistance

of counsel claim); Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) (holding

that conclusory allegations of ineffective assistance of counsel are insufficient to merit

habeas relief).

Accordingly, when viewing Weck’s affirmative statements to the circuit court that

he smoked marijuana and was satisfied with his attorney’s performance, the lesser

sentence he received, and the likelihood his claim of coercion by the probation officer

would not have succeed in stopping the circuit court from revoking his community control

and imposing the same sentence, the Court finds there is no reasonable probability Weck

would have foregone his plea and proceeded to a revocation hearing. For the foregoing

reasons, this claim is due to be denied.

B. Ground Two

In Ground Two, Weck notes that he was originally sentenced as a youthful

offender, which, under Florida law, puts a six-year cap on any prison term. Petition at 22.

However, also pursuant to Florida law, if a defendant sentenced as a youthful offender

and serving a term of probation substantively violates his or her conditions of probation

the circuit court can impose a sentence up to the statutory maximum. Id. at 23. In Ground

Two, Weck contends that his counsel was ineffective for failing to advise him of this

possibility that he could potentially receive a sentence higher than the six-year youthful

offender sentence. Id. at 23-24. Specifically, he asserts that his counsel failed to advise

him that a positive urinalysis was a substantive violation and, therefore, he assumed when

he entered his open plea that he would not be facing more than six years in prison. Id. at

23. He also asserts the circuit court failed to advise him of this possibility. Id. But for

counsel’s failure to advise him on this legal matter, Weck maintains that he would not

have entered the plea and would have proceeded to a revocation hearing.

Respondents contend Weck failed to exhaust this claim because he never raised

this issue in state court. Response at 11-16. In his Petition, Weck acknowledges this claim

was not exhausted in state court but alleges that he can overcome this procedural default

under Martinez v. Ryan because in Florida defendants are not entitled to counsel to

prepare and file Rule 3.850 motions. Petition at 22.

The Eleventh Circuit has explained the holding of Martinez as follows:

In Martinez, the U.S. Supreme Court enunciated a narrow

exception to the general rule that the lack of an attorney or

attorney error in state post-conviction proceedings does not

establish cause to excuse the procedural default of a

substantive claim. 566 U.S. at 8, 13-14, 132 S.Ct. at 1315,

1318. The Supreme Court, however, set strict parameters on

the application of this exception. It applies only where (1) state

law requires a prisoner to raise ineffective-trial-counsel claims

during an initial collateral proceeding and precludes those

claims during direct appeal; (2) the prisoner failed to properly

raise ineffective-trial-counsel claims during the initial collateral

proceeding; (3) the prisoner either did not have counsel or his

counsel was ineffective during those initial state collateral

proceedings; and (4) failing to excuse the prisoner's

procedural default would result in the loss of a “substantial”

ineffective-trial-counsel claim. Id. at 14, 132 S.Ct. at 1318; see

also Arthur v. Thomas, 739 F.3d 611, 629 (11th Cir. 2014)

(setting forth the Martinez requirements).

Lambrix, 851 F.3d at 1164. A claim is substantial if it “has some merit.” Martinez, 566 U.S.

at 14. The Court notes that Martinez applies only to procedurally defaulted claims of

ineffective assistance of trial counsel not raised in an initial collateral review proceeding.

See Martinez, 566 U.S. at 9 (“This opinion qualifies Coleman by recognizing a narrow

exception: Inadequate assistance of counsel at initial-review collateral proceedings may

establish cause for a prisoner's procedural default of a claim of ineffective assistance at

trial.”); Gore v. Crews, 720 F.3d 811, 816 (11th Cir. 2013) (“By its own emphatic terms,

the Supreme Court's decision in Martinez is limited to claims of ineffective assistance of

trial counsel that are otherwise procedurally barred due to the ineffective assistance of

post-conviction counsel.”).

Initially, the Court finds that to the extent this claim is a claim of trial court error,

Martinez does not excuse Weck’s failure to exhaust this claim. See id. Weck has failed to

establish cause or demonstrate prejudice and has not demonstrated a claim of actual

innocence. Therefore, relief on this claim as it relates to the circuit court’s failure to advise

Weck is due to be denied as any such claim is procedurally defaulted.

Turning to Weck’s claim of ineffective assistance of counsel, the Court must now

determine whether the claim in Ground Two is substantial such that it would fall under the

narrow exception expressed in Martinez. The record reflects that during the evidentiary

hearing on Weck’s petition for belated appeal, Weck testified that counsel advised him

that he faced eleven years in prison. Resp. Ex. 39 at 2. Counsel also testified at that

hearing that he advised Weck of the potential outcomes of the proceeding and that it

would not be easy to win. Id. Accordingly, Weck’s own testimony at the hearing on his

petition for belated appeal refutes his allegations here, as he admitted at that hearing that

counsel told him he could receive a sentence beyond six years. As such, this claim is not

a substantial ineffective assistance of counsel claim that would entitle Weck to proceed

on this claim pursuant to Martinez. Outside of his Martinez argument, Weck has not

provided good cause or demonstrated prejudice to excuse this procedural default.

Likewise, he has not demonstrated evidence of his actual innocence. Therefore, this claim

is unexhausted and relief is due to be denied as procedurally defaulted. Moreover, the

Court’s Martinez analysis here also establishes relief on this claim would be denied on

the merits had it been exhausted. In light of the foregoing, the relief Weck seeks in Ground

Two will be denied.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Weck seeks issuance of a certificate of appealability, the undersigned opines

that a certificate of appealability is not warranted. The Court should issue a certificate of

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

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

“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)).

Where a district court has rejected a petitioner’s constitutional claims on the merits,

the petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.

However, when the district court has rejected a claim on procedural grounds, the

petitioner must show that “jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED WITH

PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition and

dismissing this case with prejudice.

3. If Weck appeals the denial of the Petition, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of appealability is not

warranted, 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.

4. The Clerk of the Court is directed to close this case and terminate any

pending motions.

DONE AND ORDERED in Chambers, this 9th day of October, 2019.

United States District Judge

Jax-8

C: counsel of record

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