# Armbruster v. Secretary, Department of Corrections

> District Court, M.D. Florida · November 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10104140

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** November 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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 Armbruster's probation was revoked in each of his Florida cases for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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104140. Public record. Not legal advice.