Armbruster v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOSEPH ARMBRUSTER

Petitioner,

v. Case No. 8:16-cv-3039-T-36CPT

SECRETARY, Department of Corrections,

Respondent.

/

O R D E R

This cause comes before the Court on Joseph Armbruster's petition for the writ of habeas

corpus under 28 U.S.C. § 2254. (Doc. 1) Armbruster challenges his revocation of probation in

his two state convictions for grand theft. The Respondent concedes the petition's timeliness. Upon

consideration of the petition (Doc. 1), the response (Doc. 6), and the reply (Doc. 9), and in

accordance with the Rules Governing Section 2254 Cases in the United States District Courts, the

petition will be DENIED.

FACTS1

On June 30, 2005, Armbruster pleaded guilty pursuant to a negotiated plea agreement to

second-degree grand theft in case 04-CF-011966. The state court withheld adjudication and placed

1 This factual summary derives from the state post-conviction court's final order denying Armbruster's Rule 3.850

motion for post-conviction relief and the record. (Respondent's Exhibits 4, 9, 10)

Armbruster on ten years of probation. On May 1, 2006, Armbruster pleaded guilty to first-degree

grand theft in case 05-CF-019342 and was sentenced to a suspended term of one hundred twenty

months imprisonment followed by thirty years of probation. The Florida state court agreed to

transfer Armbruster's probation to Ohio. On April 1, 2009, Armbruster was charged in Ohio with

theft and forgery. He entered into a negotiated plea and was sentenced to fifty-nine months

imprisonment in Ohio. The State of Florida placed a detainer on Armbruster in December 2009.

On December 8, 2011, Armbruster was granted early release but remained in an Ohio jail due to

the detainer. Armbruster was brought back to Hillsborough County where he admitted to violating

his Florida probation. Armbruster's probation was revoked in each of his Florida cases for

committing a new crime in Ohio and he was sentenced to concurrent terms of ten years

imprisonment in each of his Florida cases. He did not appeal the revocation but filed in state court

a Rule 3.800(a) motion to correct an illegal sentence and a Rule 3.850 motion for post-conviction

relief, both of which were denied by the state courts. Armbruster's subsequent petition for

discretionary review was dismissed by the Florida Supreme Court for lack of jurisdiction and his

petition for belated appeal was dismissed by the state appellate court as untimely.

STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this

proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied,

531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court

review of a state court adjudication, states in pertinent part:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that 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) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this

deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a

federal habeas court to grant a state prisoner’s application for a writ

of habeas corpus with respect to claims adjudicated on the merits in

state court. Under § 2254(d)(1), the writ may issue only if one of

the following two conditions is satisfied - - the state-court

adjudication resulted in a decision that (1) "was contrary to . . .

clearly established Federal Law, as determined by the Supreme

Court of the United States" or (2) "involved an unreasonable

application of . . . clearly established Federal law, as determined by

the Supreme Court of the United States." Under the "contrary to"

clause, a federal habeas court may grant the writ if the state court

arrives at a conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case differently than

this Court has on a set of materially indistinguishable facts. Under

the "unreasonable application" clause, a federal habeas court may

grant the writ if the state court identifies the correct governing legal

principle from this Court's decisions but unreasonably applies that

principle to the facts of the prisoner’s case.

"The focus . . . is on whether the state court’s application of clearly established federal law

is objectively unreasonable, . . . an unreasonable application is different from an incorrect one."

Bell v. Cone, 535 U.S. 685, 694 (2002). "As a condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state court's ruling on the claim being presented in federal

court was so lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 526 U.S.

86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective

reasonableness, not the correctness per se, of the state court decision that we are to decide."). The

phrase "clearly established Federal law" encompasses only the holdings of the United States

Supreme Court "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. "The [AEDPA] modified a

federal habeas court’s role in reviewing state prisoner applications in order to prevent federal

habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible

under law." Cone, 535 U.S. at 693. A federal court must afford due deference to a state court’s

decision. "AEDPA prevents defendants — and federal courts — from using federal habeas corpus

review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559

U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ("This is a 'difficult

to meet,' . . . and 'highly deferential standard for evaluating state-court rulings, which demands that

state-court decisions be given the benefit of the doubt' . . . .") (citations omitted).

Review of the state court decision is limited to the record that was before the state court.

We now hold that review under § 2254(d)(1) is limited to the record

that was before the state court that adjudicated the claim on the

merits. Section 2254(d)(1) refers, in the past tense, to a state-court

adjudication that "resulted in" a decision that was contrary to, or

"involved" an unreasonable application of, established law. This

backward-looking language requires an examination of the state-

court decision at the time it was made. It follows that the record

under review is limited to the record in existence at that same time,

i.e., the record before the state court.

Pinholster, 563 U.S. at 181–82. Armbruster bears the burden of overcoming by clear and

convincing evidence a state court factual determination. "[A] determination of a factual issue

made by a State court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence."

28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a

mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied,

534 U.S. 1046 (2001).

STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL

Armbruster claims ineffective assistance of counsel, a difficult claim to sustain. "[T]he

cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of

counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en

banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d

1297, 1305 (11th Cir. 1998), explains that Strickland v. Washington, 466 U.S. 668 (1984), governs

an ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is well

settled and well documented. In Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court

set forth a two-part test for analyzing ineffective assistance of

counsel claims. According to Strickland, first, the defendant must

show that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104

S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466

U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim . . . to address

both components of the inquiry if the defendant makes an insufficient showing on one."); Sims,

155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on

either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment."

Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of

the time of counsel’s conduct." 466 U.S. at 690. Strickland requires that "in light of all the

circumstances, the identified acts or omissions were outside the wide range of professionally

competent assistance." 466 U.S. at 690.

Armbruster must demonstrate that counsel's alleged error prejudiced the defense because

"[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691.

To meet this burden, Armbruster must show "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.

Strickland cautions that "strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable; and strategic choices made after

less than complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation." 466 U.S. at 690–91. Armbruster cannot meet

his burden merely by showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would have

done. Nor is the test even what most good lawyers would have done.

We ask only whether some reasonable lawyer at the trial could have

acted, in the circumstances, as defense counsel acted at trial . . . . We

are not interested in grading lawyers’ performances; we are

Interested in whether the adversarial process at trial, in fact, worked

adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). Accord Chandler v. United States,

218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could

have done something more or something different. So, omissions are inevitable . . . . [T]he issue

is not what is possible or 'what is prudent or appropriate, but only what is constitutionally

compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). The required extent

of counsel's investigation was addressed recently in Hittson v. GDCP Warden, 759 F.3d 1210,

1267 (11th Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015):

[W]e have explained that "no absolute duty exists to investigate

particular facts or a certain line of defense." Chandler, 218 F.3d at

1317. "[C]ounsel has a duty to make reasonable investigations or

make a reasonable decision that makes particular investigations

unnecessary." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066

(emphasis added). "[C]ounsel need not always investigate before

pursuing or not pursuing a line of defense. Investigation (even a

nonexhaustive, preliminary investigation) is not required for counsel

reasonably to decline to investigate a line of defense thoroughly."

Chandler, 218 F.3d at 1318. "In assessing the reasonableness of an

attorney's investigation . . . a court must consider not only the

quantum of evidence already known to counsel, but also whether the

known evidence would lead a reasonable attorney to investigate

further." Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538.

See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty to raise

a frivolous claim).

Under 28 U.S.C. § 2254(d) Armbruster must prove that the state court’s decision was

"(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States or (2) . . . based on an unreasonable

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

Sustaining a claim of ineffective assistance of counsel is very difficult because "[t]he standards

created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in

tandem, review is 'doubly' so." Richter, 562 U.S. at 106. See also Pinholster, 563 U.S. at 202 (a

petitioner must overcome this "'doubly deferential' standard of Strickland and [the] AEDPA"),

Johnson v. Sec'y, Dep't of Corr., 643 F.3d 907, 911 (11th Cir. 2011) ("Double deference is doubly

difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance

of counsel claim that was denied on the merits in state court is found to merit relief in a federal

habeas proceeding."), and Pooler v. Sec'y, Dep't of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012)

("Because we must view Pooler's ineffective counsel claim — which is governed by the deferential

Strickland test — through the lens of AEDPA deference, the resulting standard of review is

"doubly deferential."), cert. denied, 134 S. Ct. 191 (2013).

Ground One

Armbruster contends that he "was convicted on the basis of a guilty plea that was the

product of ineffective assistance of counsel" in violation of his federal rights to counsel and due

process. (Doc. 1, p. 5) Armbruster alleges that his trial counsel "provided deficient performance

by misadvising the petitioner as to a direct consequence of entering the plea, namely that the

Petitioner would receive two years of credit for time served in an Ohio prison after the service of

a warrant and detainer by the Florida courts." (Doc. 9, p. 4)

The state post-conviction court granted Armbruster an evidentiary hearing on this ground

of ineffective assistance of counsel. Armbruster testified at the hearing on direct examination as

follows (Respondent's Exhibit 9, transcript of February 12, 2014, evidentiary hearing, pp. 32–36):

Q: And at various times during his representation of you on that

violation of probation, did [counsel] tell you what would happen to

you when you came to Florida or when the Florida case got

resolved?

A: We had several conversations.

. . . .

Q: What did he tell you would happen?

A: Our first conversation was that he was going to get two years to

run concurrent with my Ohio sentence. From that point, when that

didn't seem to be happening, as my time in Ohio was winding down,

he said that he did not feel that I was going to be extradited to Florida

but that I would have to come down and turn myself in. I was

actually extradited once I served my Ohio sentence. Upon — while

I was awaiting extradition in the southeast Ohio regional jail is when

we had the conversation regarding that I may want to consider doing

a year . . . in order to alleviate the 30 years of probation that was

hanging on my head. When I arrived in Florida we had several

conversations on the phone and the next time we really discussed

any kind of sentencing was at the morning of the hearing and he

came to me and said that I scored to 43 months, I had a little over

two years in, the State was remaining silent and that we should admit

to the violation.

Q: And so based on that conversation, what did you think your

prison time would actually be if you admitted to this violation of

probation?

A: Doing the quick math in my head I had taken the 43 months and

subtracted 24 and had figured that that came right around the number

he had given me when I was in Ohio which was a year or so. So, I

was thinking that was going to be the worst case scenario.

. . . .

Q: And I believe you just testified that it was when you got your

violation of probation hearing that was when you heard that there

was a 43-month bottom of the guidelines scoresheet, correct?

A: That's correct, ma'am.

Q: And that you would get that credit for the two years you had spent

in Ohio and the State was going to stand silent, correct?

A: Yes, ma'am.

Q: And, so, based on what [trial counsel] told you, is it correct, then,

that you did not proceed to a violation of probation hearing?

A: That's correct, ma'am.

Q: Had you known that the 10 year sentence would have been

imposed would you still have admitted to the violation of probation

or would you have proceeded to a hearing?

A: I would have asked for a hearing, ma'am.

Q: Had you known that you would — and we have talked about this

quite a bit and, I believe, [trial counsel] did as well. Concerning the

time that you spent in jail — in prison up in Ohio after the detainer

had been filed, was it your understanding that you would receive

credit for that time that you served?

A: Yes, ma'am.

Q: And did you get that understanding from what [trial counsel] said

to you?

A: Yes, ma'am.

Q: So if you knew you were not going to receive that credit from the

time that you served in Ohio after the detainer had been served,

would you still have admitted to the violation of probation or would

you have gone to a hearing?

A: I would have gone to a hearing, ma'am.

Trial counsel testified on direct examination at the evidentiary hearing as follows

(Respondent’s Exhibit 9, pp. 16–17):

Q: Okay. . . . [H]e alleges you were ineffective for misrepresenting

the credit [for] time served in Ohio and for failing to petition the

Court for that credit.

A: I would defer to the record of whether I did or did not.

Q: Okay. Do you agree that he is, as a matter of law, entitled to the

credit that he served in Ohio?

A; Yes.

Q: You believe he’s entitled or do you believe that that’s within the

discretion of the Court?

A: Oh. Yeah, to clarify that, I would hope that he would get all credit

that he deserves, legally under the law, for the time that he spent in

Ohio all the way up through the time he was sentenced.

Q: Okay. He also alleges that he entered his admission fully

expecting to get credit for that 25 months. Do you recall discussions

with him specifically about that, about whether or not he would get

that credit?

A: I do recall — yes, I recall having question — or discussions with

him about the need to see that he does get credit for all time that he’s

legally entitled to receive.

Trial counsel further testified on cross-examination at the evidentiary hearing as follows

(Respondent’s Exhibit 9, p. 25):

Q: And did you explain to him that he would get credit for the time

that he spent in the Ohio prison after the detainer had been served?

A: I think, yeah, I think there’s a strong likelihood that I would say

that.

Q: Okay. And that was the understanding that — or the conversation

that you and Mr. Armbruster had after he had been extradited to

Florida, correct?

A: I would say most likely it would either — it would have been at

the time he was extradited to Florida and it probably was a running

conversation that continued all the way to the day of the

hearing — or the day of the court appearance in front of Judge

Ficarotta.

The state post-conviction court denied this ground of ineffective assistance of counsel after

the evidentiary hearing as follows (Respondent's Exhibit 10, pp. 10–13) (court's record citations

omitted):

Defendant alleges ineffective assistance of counsel when counsel

misrepresented credit for time served in Ohio and failed to petition

and notify the Court of that credit. Specifically, Defendant alleges

he has been incarcerated since November 23, 2009. He alleges

Hillsborough County issued an arrest warrant and detainer on

December 7, 2009. He alleges due to the detainer and warrant, he

was unable to exercise his custody while incarcerated in Ohio and

was ineligible for a substance abuse prison diversion program. He

alleges he appeared before the Court on March 5, 2012, and was

sentenced for the violation. He alleges his probation was revoked

due to his incarceration in Ohio. Therefore, he alleges because his

probation was revoked due to the offense and subsequent

incarceration in Ohio, Defendant is entitled to credit from the time

of the initial arrest on that offense.

He alleges his counsel was fully aware of his out of state

incarceration as well as the fact that this incarceration was the reason

for revocation in Florida. However, he alleges his counsel failed to

petition the Court for this credit. He alleges he entered his plea fully

expecting to get credit for the twenty-five months he served while

under a detainer. He alleges counsel's failure to petition the Court

for and secure said credit prejudiced Defendant. He alleges had he

known that his counsel would not petition the Court for said credit

and he would not receive the credit, he would not have entered a

plea. After reviewing the allegations, the court file, and the record,

the Court finds Defendant's allegations are facially sufficient.

At the hearing, Mr. Souza admitted he and Defendant had a

discussion about maintaining or alerting the Court to the gain time

he was entitled to. He admitted Defendant was entitled to credit for

the time he served in Ohio. When asked if he recalled having

discussions with Defendant, he responded, "I do recall — yes, I

recall having question — or, discussions with him about the need to

see that he does get credit for all time that he's legally entitled to

receive."

On cross-examination, Mr. Souza testified there was a strong

likelihood that he explained to Defendant that he would get credit

for the time he spent in the Ohio prison after the detainer had been

served.

Defendant admitted that when he got to the violation of probation

hearing, he heard he would get credit for the two years he spent in

Ohio and the State was going to stand silent. He admitted that based

on Mr. Souza's representations he did not proceed to a violation of

probation hearing. He testified if he had known that he would not

get credit for the time he spent in Ohio after the detainer was served,

he would have gone to a hearing.

After reviewing the allegations, the testimony, evidence, and

arguments presented at the February 12, 2014, evidentiary hearing,

the court files, and the record, the Court finds Mr. Souza's testimony

to be more credible than that of Defendant. The Court finds "[a] trial

court has discretionary authority to award credit for the time a

defendant was incarcerated outside the state while awaiting transfer

to Florida." McRae v. State, 820 So. 2d 1048, 1049 (Fla 2d DCA

2002), see also Kronz v. State, 462 So. 2d 450, 451 (Fla 1985),

DeGeso v. State, 771 So. 2d 1264, 1265 (Fla. 2d DCA 2000). When

considering whether to award credit, "a trial court should consider

whether the defendant was being held 'solely because of the Florida

offense for which he or she is being sentenced.'" DeGeso, 771 So. 2d

at 1265 (quoting Kronz, 462 So. 2d at 451).

The Court finds at the time he was in prison in Ohio, Defendant was

not in Ohio solely because of the Florida offenses, but was serving

prison in Ohio because of the Ohio offenses he committed while

serving his Florida probation in Ohio. The Court finds although Mr.

Souza advised the Court on March 5, 2012, that Defendant had

served two years prison in Ohio, he did not ask the Court to give

Defendant credit for said time. However, the Court finds Mr. Souza

did subsequently file a motion for modification of sentence. The

Court finds at the April 16, 2012, hearing on the motion for

modification of sentence, Mr. Souza argued to the Court that there

was a detainer issued by the State of Florida on December 7, 2009,

and he thought Defendant should be able to get credit from that

period of time going forward. The Court finds Judge Ficarrotta

responded that he did not know if Defendant got credit for that time

period, but that he was to get credit for everything he was entitled

to. The Court denied the motion for modification of sentence and

the ten-year prison sentence remained.

The Court further finds although Mr. Souza hoped the Court would

give Defendant credit for time he spent in the Ohio prison and

requested such at the April 16, 2012, hearing, Mr. Souza did not

guarantee that Defendant would receive such credit. The Court finds

it was within the Court's discretion to determine whether Defendant

should receive the Ohio credit. However, the Court finds it was

unreasonable for Defendant to believe that based on the fact that

Defendant had just been released from the Ohio prison on a similar

charge, that the Court would use its discretion to grant the Ohio

credit. As such, the Court finds Defendant cannot demonstrate that

Mr. Souza acted deficiently or any resulting prejudice when even if

Mr. Souza had petitioned the Court, the award of such credit is

discretionary; not mandatory. The Court finds even when Mr. Souza

raised it at the motion for modification of sentence hearing, the

Court did not award such credit, but announced Defendant would

receive credit for everything he was entitled to. Because the award

of the Ohio credit was discretionary and not mandatory, Defendant

cannot prove entitlement to the Ohio credit. As such, no relief is

warranted upon [this] claim . . . .

The AEDPA "erects a formidable barrier to federal habeas relief for prisoners whose claims

have been adjudicated in state court." Daniel v. Comm'r, Ala. Dep't of Corr., 822 F.3d 1248, 1260

(11th Cir. 2016). A question of the credibility and demeanor of a witness is a question of fact. See

Consalvo v. Sec'y for Dep't of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (citing Freund v.

Butterworth, 165 F.3d .939, 862 (11th Cir. 1999) (en banc)). Under Section 2254(e)(1), "[f]ederal

habeas courts generally defer to the factual findings of state courts, presuming the facts to be

correct unless they are rebutted by clear and convincing evidence." Jones v. Walker, 540 F.3d

1277, 1288 n.5 (11th Cir. 2008) (en banc). See also Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir.

1993) ("Findings by the state court concerning historical facts and assessments of witness

credibility are . . . entitled to the same presumption accorded finding of fact under 28 U.S.C.

§ 2254(d)."), cert. denied, 513 U.S. 1161 (1995). "Determining the credibility of witnesses is the

province and function of state courts, not a federal court engaging in habeas review. Federal

habeas courts have 'no license to redetermine credibility of witnesses whose demeanor was

observed by the state court, but not by them.'" Consalvo, 664 F.3d at 845 (quoting Marshall v.

Lonberger, 459 U.S. 422, 434 (1983)). This deference applies to a credibility determination that

resolves conflicting testimony. See Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998)

("We must accept the state court's credibility determination and thus credit [the attorney's]

testimony over" the applicant's testimony."); cert. denied, 526 U.S. 1047 (1999). The deference is

heightened when reviewing a credibility determination in a Section 2254 application. Gore v.

Sec'y, Dep't of Corr., 492 F.3d 1273, 1300 (11th Cir. 2007), cert. denied, 552 U.S. 1190 (2008).

Accord Kurtz v. Warden, Calhoun State Prison, 541 F. App'x 927, 929 (11th Cir. 2013) ("'A certain

amount of deference is always given to a trial court's credibility determinations' and a credibility

determination in a case on habeas review receives heightened deference.") (quoting Gore, 492

F.3d at 1300), cert. denied sub nom, Kurtz v. Jeanes, 134 S. Ct. 2728 (2014)). The state court's

credibility determination is presumed correct. See Rice v. Collins, 546 U.S. 333, 341–42 (2006)

("Reasonable minds reviewing the record might disagree about the [witness's] credibility, but on

habeas review that does not suffice to supersede the trial court's credibility determination.").

The state post-conviction court found counsel more credible than Armbruster. Armbruster

has not shown, by clear and convincing evidence, that the state court's credibility determination

was unreasonable. See Jones, 540 F.3d at 1288 n.5. Furthermore, the record shows that, although

counsel did not request at sentencing that Armbruster receive credit for the time served in Ohio,

trial counsel did subsequently file a motion for modification of sentence in which counsel

specifically requested that Armbruster receive such credit. (Respondent’s Exhibit 10, transcript of

April 16, 2012, hearing, p. 4) The state judge concluded at the hearing on the motion that

Armbruster "gets credit for everything he's entitled to" but did not conclude that Armbruster was

entitled to credit for the time served in Ohio and denied the motion for modification. (Id. at pp. 4-5)

Armbruster presents no evidence establishing entitlement to credit for the time served in

Ohio. Consequently, he fails to meet his burden of rebutting with clear and convincing evidence

the presumption of correctness afforded the state post-conviction court's credibility determination.

28 U.S.C. § 2254(e)(1). The state courts' rejection of this ground of ineffective assistance of trial

counsel was neither contrary to, or an unreasonable application of, Strickland nor was the ruling

based on an unreasonable determination of the facts in light of the evidence presented in state

court. 28 U.S.C. § 2254(d)(1), (d)(2). Ground one warrants no relief.

Ground Two

Armbruster contends that his trial counsel rendered ineffective assistance by not filing

either a motion to withdraw plea or a notice of appeal. Armbruster alleges that during the Rule

3.850 evidentiary hearing his trial counsel acknowledged that Armbruster asked him to preserve

and perfect an appeal but counsel admitted that he "neither filed a motion to withdraw or a notice

of appeal . . . ." (Id.) Armbruster argues that counsel's alleged error resulted in a failure "to

preserve the Petitioner's due process rights."

Motion to withdraw plea

In his Rule 3.850 motion Armbruster alleged the following (Respondent's Exhibit 5, p. 10)

(footnotes omitted):

The Supreme Court of the United States has held that there is a

constitutionally imposed duty on an attorney to consult with a

defendant about an appeal if there is reason to think that a rational[]

defendant would want an appeal or that a particular defendant has

reasonably demonstrated that he or she was interested in appealing.

In the cause at hand the Defendant asked counsel if it was possible

to file an appeal. Counsel advised that the only option was a motion

under Fla. R. Crim. P. 3.800(c) - Motion to Modify Sentence. This

clearly is not the case as Fla. R. App. P. 9.104(b)(1)(D) state[s] that

a defendant "can appeal orders revoking or modifying probation."

Counsel also stated that he was not retained to be the Defendant's

appellate counsel. This in itself is a direct violation of Fla. R. Crim.

P. 9.104(d)(1) which state[s,] "An attorney has an obligation to

preserve the right to appeal when asked, even if the defendant will

be represented on appeal by a different attorney."

Defense counsel's failure to be forthright with the Defendant in

regards to his options prevented the Defendant from exercising his

right to file a timely motion under Fla. R. Crim. P. 3.170(l) or to file

a direct appeal; the defendant would have to file either within thirty

(30) days of sentencing. Instead counsel filed a motion to modify

sentence which was not heard until April 16, 2012, well beyond

thirty (30) days after sentencing (March 5th, 2012). These actions

frustrated the Defendant's efforts to exercise his right to appeal

because counsel remained the Defendant's attorney of record and

any pro se motions filed, such as a timely 3.170(l) [motion] in this

case would be considered a nullity. Inasmuch as counsel's actions

amount[] to ineffectiveness thus denying the Defendant his right to

competent, effective counsel. If not for counsel's actions the

Defendant would have been able to file a timely motion to withdraw

plea or a direct appeal in order to request a full revocation hearing

due to counsel's ineffectiveness.

After ordering the State to respond, the state post-conviction court denied this claim of

ineffective assistance of counsel as follows (Respondent's Exhibit 10, p. 18) (court's record

citations omitted):

Defendant alleges ineffective assistance of counsel due to counsel's

failure to file a timely motion to withdraw plea under rule 3.170(1)

At the evidentiary hearing, [trial counsel] admitted his office did not

file a motion to withdraw plea. Defendant admitted [trial counsel]

did not file a motion to withdraw the plea even though he asked him

to do so. However, he did not recall [trial counsel] advising him that

he could either have a hearing or could admit to the violation. He

denied knowing that if he had a violation of probation hearing, the

State would have to present evidence that he violated.

After reviewing the allegations, the testimony, evidence, and

arguments presented at the February 12, 2014, evidentiary hearing,

the court files, and the record, the Court finds Defendant failed to

meet his burden to prove that if [trial counsel] had filed a motion to

withdraw plea, the motion would have been granted. Consequently,

the Court finds Defendant failed to prove prejudice. As such, no

relief is warranted upon this portion of [this] claim . . . .

In his Rule 3.850 motion Armbruster stated no basis for withdrawing his plea.

Accordingly, he failed to demonstrate either cause or prejudice under Strickland. To the extent

that he asserts in his federal petition that counsel erred by not moving to withdraw the plea based

on Armbruster not receiving credit for the time served in Ohio, he cannot obtain relief because his

proposed basis to withdraw his plea was considered by the state post-conviction court

notwithstanding the lack of a motion to withdraw plea as discussed in ground one, supra.

Armbruster's failure to satisfy Strickland's requirements precludes relief on this claim of

ineffective assistance of counsel. The state courts' rejection of this ground of ineffective assistance

of trial counsel was neither contrary to, or an unreasonable application of, Strickland, nor was the

ruling based on an unreasonable determination of the facts in light of the evidence presented in

state court. 28 U.S.C. § 2254(d)(1), (d)(2).

Notice of appeal

Armbruster claims that his trial counsel rendered ineffective assistance by not filing a

notice of appeal. Even assuming that trial counsel performed deficiently by not filing a notice of

appeal on Armbruster's behalf, Armbruster fails to satisfy Strickland's prejudice requirement.

Armbruster's probation was revoked and his sentence imposed in March 2012. The sentencing

judge advised Armbruster at the conclusion of the revocation hearing that he had thirty days to

appeal the judgment and sentence. (Respondent's Exhibit 10, transcript of March 5, 2012,

revocation hearing, p. 12) Because his trial counsel filed no notice of appeal, Armbruster alleged

in his Rule 3.850 motion that his trial counsel rendered ineffective assistance. The state

post-conviction court dismissed this claim of ineffective assistance of counsel in its August 2013

order as follows (Respondent's Exhibit 6, pp. 7–8):

[W]ith respect to counsel's failure to file a timely appeal when asked,

the Court finds because the relief sought is a belated appeal,

Defendant must seek such relief in the appellate court. See Fla. R.

Crim. P. 3.850(1). This Court does not have jurisdiction to grant

defendant a belated appeal. As such, this portion of [this]

claim . . . is dismissed without prejudice to any right Defendant may

have to file a timely petition for a belated appeal in the appellate

court.

Under Rule 9.141(c)(5)(A), Florida Rules of Appellate Procedure, Armbruster had two

years after the expiration of time for filing the notice of appeal from the final revocation

order — until April 2014 — to file a petition for belated appeal. When the state post-conviction

court dismissed his claim of ineffective assistance of counsel in August 2013, Armbruster still had

approximately eight months in which to file a petition for belated appeal. Armbruster

acknowledges in his reply that he petitioned for a belated appeal in 2016 "which was subsequently

denied as untimely." (Doc. 9, p. 8) He claims that "[t]he untimely filing was not due to a lack of

due diligence but rather was an outcome of the Petitioner allowing the [s]tate [a]ppeals court an

opportunity to rule on the post-conviction claim first." (Id.)

Even assuming that trial counsel performed deficiently by not filing a notice of appeal on

Armbruster's behalf, Armbruster cannot show prejudice because he still had time remaining after

the dismissal of his ineffective assistance of counsel claim to file a petition for belated appeal.

Inexplicably, and despite notice from the post-conviction court of the procedure for pursuing a

belated appeal, Armbruster tarried nearly two years — until July 2016 — to petition the state

appellate court for a belated appeal. (Respondent's Exhibit 17) The untimeliness of that petition

resulted from Armbruster's own actions. Consequently, Armbruster cannot demonstrate prejudice

resulting from trial counsel's deficient performance as Strickland requires. Ground two warrants

no federal habeas relief.

Ground Three

Armbruster contends that he "was unconstitutionally denied credit against his sentence to

which he was lawfully entitled." (Doc. 1, p. 8) Armbruster alleges that "if he had been serving a

sentence in the Florida prison system when served with the warrant he would have been brought

before the court issuing the warrant in a timely manner or he would have been entitled to the credit

but since Petitioner was in another jurisdiction there is no statutory requirement to grant the credit."

(Id.) He further alleges that this "sentence[ing]practice is prejudicial and violates the Petitioner's

Due Process rights as guaranteed by the Constitution of the United States." (Id.) Armbruster

additionally asserts in his reply that "Florida law excludes him from being treated like other

incarcerated defendants even though the Petitioner was at all relevant times under the jurisdiction

of the State of Florida," resulting in a violation of his constitutional right to equal protection.

Respondent correctly argues that this ground is unexhausted and procedurally defaulted

because Armbruster did not present the ground to the state court. Armbruster replies that he raised

this claim in his memorandum of law filed with his initial brief in the appeal of the denial of his

Rule 3.850 motion. However, Armbruster did not present to either the state post-conviction court

or the state appellate court either a federal due process claim or a federal equal protection claim

based on the alleged unconstitutionality of Florida's discretionary award of credit for time served

in an out-of-state jurisdiction. Consequently, the ground is unexhausted.

Before a federal court can grant habeas relief, a petitioner must exhaust every available

state court remedy for challenging his conviction, either on direct appeal or in a state post-

conviction motion. 28 U.S.C. § 2254(b)(1)(A), (C). "[T]he state prisoner must give the state

courts an opportunity to act on his claims before he presents those claims to a federal court in a

habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Henderson v.

Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief

cannot raise a federal constitutional claim in federal court unless he first properly raised the issue

in the state courts.") (citations omitted). To exhaust a claim, a petitioner must present the state

court with both the particular legal basis for relief and the facts supporting the claim. See Snowden

v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the

state prisoner 'fairly presen[t] federal claims to the state courts in order to give the State the

opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting

Duncan v. Henry, 513 U.S. 364, 365 (1995)). The prohibition against raising an unexhausted claim

in federal court extends to both the broad legal theory of relief and the specific factual contention

that supports relief. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).

The requirement that a petitioner exhaust each available state court remedy as a prerequisite

to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state

court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v.

Connor, 404 U.S. 270, 275-76 (1971). A petitioner may raise a federal claim in state court "by

citing in conjunction with the claim the federal source of law on which he relies or a case deciding

such claim on federal grounds, or by simply labeling the claim 'federal.'" Baldwin, 541 U.S. at 32.

Armbruster's failure to present either his federal due process claim or his federal equal protection

claim to the state court deprived the state court of a "full and fair opportunity to resolve any

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

process." Boerckel, 526 U.S. at 845. See also Anderson v. Harless, 459 U.S. 4, 5 6 (1982) ("It is

not enough that all the facts necessary to support the federal claim were before the state courts or

that a somewhat similar state law claim was made."). State procedural rules preclude Armbruster

from returning to state court to present his federal claims in either a direct appeal or a second Rule

3.850 motion. Armbruster's failure to properly exhaust his federal claims in the state courts results

in a procedural default.

"If the petitioner has failed to exhaust state remedies that are no longer available, that

failure is a procedural default which will bar federal habeas relief, unless either the cause and

prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256

F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner "must

demonstrate that some objective factor external to the defense impeded the effort to raise the claim

properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To show prejudice,

a petitioner must demonstrate not only that an error at the trial created the possibility of prejudice

but that the error worked to his actual and substantial disadvantage and infected the entire trial

with error of constitutional dimension. United States v. Frady, 456 U.S. 152 (1982). In other

words, a petitioner must show at least a reasonable probability of a different outcome. Henderson,

353 F.3d at 892.

Absent a showing of cause and prejudice, a petitioner may obtain federal habeas review of

a procedurally defaulted claim only if review is necessary to correct a fundamental miscarriage of

justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Murray v. Carrier, 477 U.S. 478, 495

96 (1986). A fundamental miscarriage of justice occurs if a constitutional violation has probably

resulted in the conviction of someone who is "actually innocent." Schlup v. Delo, 513 U.S. 298,

327 (1995); Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet the "fundamental

miscarriage of justice" exception, Armbruster must show constitutional error coupled with "new

reliable evidence — whether . . . exculpatory scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324.

Armbruster fails to allege or show cause and prejudice for the default of either a federal

due process claim or a federal equal protection claim challenging the constitutionality of Florida's

procedure for awarding credit for time served in an out-of-state jurisdiction. He cannot meet the

"fundamental miscarriage of justice" exception because he presents no "new reliable evidence"

that he is actually innocent. Schlup, 513 U.S. at 327. Because he satisfies neither exception to

procedural default, Armbruster's federal due process claim and his federal equal protection claim

are procedurally barred from federal review.

Accordingly, Armbruster's petition for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk shall enter a judgment against Armbruster and CLOSE this case.

DENIAL OF BOTH A

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

IT IS FURTHER ORDERED that Armbruster is not entitled to a certificate of

appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first

issue a certificate of appealability ("COA"). Section 2253(c)(2) limits the issuing of a COA "only

if the applicant has made a substantial showing of the denial of a constitutional right." To merit a

certificate of appealability, Armbruster must show that reasonable jurists would find debatable

both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d

926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would not debate either

the merits of the claims or the procedural issues, Armbruster is entitled to neither a certificate of

appealability nor leave to appeal in forma pauperis.

Accordingly, a Certificate of Appealability is DENIED. Leave to appeal in forma pauperis

is DENIED. Armbruster must obtain permission from the circuit court to appeal in forma

pauperis.

DONE and ORDERED in Tampa, Florida this 26th day of November 2019.

Chak Pre Cara Mo TL ot el

Charlene Edwards Honeywell

United States District Judge

Copies furnished to:

All parties of record including unrepresented parties, if any

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