Dukes v. Secretary, Department of Corrections

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

CHARLES DUKES,

Applicant,

v. CASE NO. 8:17-cv-1351-T-23CPT

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Dukes applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)

and challenges his convictions for a count of sale or delivery of cocaine within 1000

feet of a public park, for which conviction Dukes is imprisoned for fifteen years as a

habitual felony offender. Numerous exhibits (“Respondent’s Exhibit __”) support

the response. (Doc. 6) The respondent both admits the application’s timeliness and

argues that one ground is not fully exhausted. (Response at 7 and 18–19, Doc. 6)

I. BACKGROUND1

Dukes alleges that he was riding his bicycle to the store when a vehicle

approached him. Unbeknownst to Dukes, the driver of the vehicle was an

undercover law enforcement officer and the passenger was a confidential informant.

1 This summary of the facts is nearly a quotation from the recitation of facts in the post-

conviction courts’ order. (Respondent’s Exhibits 14 at 88)

The officer asked Dukes to sell some crack cocaine, but Dukes refused. The driver

directed Dukes’s attention to tools in the vehicle and explained that he was a

working person on a thirty-minute lunch break and that he wanted the crack cocaine

for a sexual encounter with the passenger. Dukes sold crack cocaine to the officer.

Dukes pleaded guilty without a plea agreement and was sentenced to

imprisonment for fifteen years as a habitual felony offender. Dukes appealed and

moved to withdraw his plea, but he later withdrew the appeal. The motion to

withdraw plea was dismissed because the court lacked jurisdiction when the motion

was filed.

Dukes timely moved under Rule 3.850, Florida Rules of Criminal Procedure,

for post-conviction relief in which he alleged that counsel rendered ineffective

assistance. The post-conviction court dismissed the initial motion for insufficiency

but with leave to amend. (Respondent’s Exhibit 14 at 54) The amended motion

identified six grounds for relief, which the post-conviction court grouped into two

claims of ineffective assistance of counsel: for not pursuing an entrapment defense

and for laboring under a conflict of interest.

II. EXHAUSTION AND PROCEDURAL DEFAULT

In his federal application Dukes asserts the two grounds for relief as identified

by the post-conviction court, however, the respondent argues that Dukes includes

two assertions not previously included within the conflict of interest claim. In the

state proceedings Dukes supported his conflict claim by alleging (1) that counsel’s

interests were adverse to his interests, (2) that counsel failed to request a Nelson

hearing, and (3) that the trial court neither inquired into the conflict nor conducted a

Nelson hearing. In his federal application Dukes (1) concedes both that his motion in

state court was “inartfully argued” and that his “intention was to present this claim

of ineffective assistance of counsel based on counsel’s failure to move to withdraw as

counsel and requesting [sic] a hearing to see if a true conflict existed” (Doc. 1 at 6)

and (2) omits the three allegations from the state post-conviction proceeding and

instead asserts that counsel was ineffective at sentencing because counsel failed both

to adopt his pro se motion to withdraw his plea and to present testimony of a

psychologist. Consequently, the federal application both alleges a claim based on

two factual assertions not presented to the state court and abandons what Dukes

presented to the state court.2

2 The post-conviction court denied the conflict-of-interest claim as follows (Respondent’s

Exhibit 14 at 90):

Grounds B and D of Defendant’s motion focus on an alleged conflict

of interest between Defendant and counsel. In its prior order, the

Court struck these claims for being based solely on conclusory

allegations, rather than specific evidence of an actual conflict of

interest as required for a facially sufficient claim. Although the Court

noted the pleading deficiencies and provided an opportunity to

correct them, the instant amended motion is equally insufficient:

Defendant repeatedly asserts that counsel “was laboring under a

conflict of interest” but fails to allege any specific facts evidencing an

actual conflict. Accordingly, the Court denies the claims in Grounds

B and D. See Spera v. State, 971 So. 2d 754, 761 (Fla. 2007) (requiring

that defendants receive one opportunity to amend a facially

insufficient postconviction claim).

The state’s practice of requiring an allegation based on sufficient supporting facts is the same

as federal practice. See, e.g., Hittson v. GDCP Warden, 759 F.3d 1210, 1263 (11th Cir. 2014)

(“[G]eneralized allegations are insufficient in habeas cases. . . . In other words, Rule 2(c)[, Rules

Governing Section 2254 Proceedings,] ‘mandate[s] fact pleading as opposed to notice pleading, as

authorized under Federal Rule of Civil Procedure 8(a).’”) (quoting Borden v. Allen, 646 F.3d 785, 810

(11th Cir. 2011)), cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015).

An applicant must present each claim to a state court before raising the claim

in federal court. “[E]xhaustion of state remedies requires that petitioners ‘fairly

presen[t]’ federal claims to the state courts in order to give the State the ‘opportunity

to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan v.

Henry, 513 U.S. 364, 365 (1995). Accord Rose v. Lundy, 455 U.S. 509, 518–19 (1982)

(“A rigorously enforced total exhaustion rule will encourage state prisoners to seek

full relief first from the state courts, thus giving those courts the first opportunity to

review all claims of constitutional error.”). “To provide the State with the necessary

‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state

court (including a state supreme court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27,

32 (2004) (citing Duncan).

Also, an applicant must present to the federal court the same claim that was

presented to the state courts. Picard v. Connor, 404, U.S. 270, 275 (1971) (“[W]e have

required a state prisoner to present the state courts with the same claim he urges

upon the federal courts.”). “Mere similarity of claims is insufficient to exhaust.”

Duncan v. Henry, 513 U.S. at 366.

In the state proceedings Dukes failed to present as part of the conflict claim the

two new factual assertions, specifically, counsel’s failure both to adopt his pro se

motion to withdraw his plea and to present testimony of a psychologist. “While we

do not require a verbatim restatement of the claims brought in state court, we do

require that a petitioner presented his claims to the state court ‘such that a reasonable

reader would understand each claim’s particular legal basis and specific factual

foundation.’” McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005) (quoting

Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344–45 (11th Cir. 2004)), cert. denied,

547 U.S. 1073 (2006). See also Anderson v. Harless, 459 U.S. 4, 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.”); Kelley, 377 F.3d at

1345 (“The exhaustion doctrine requires a habeas applicant to do more than scatter

some makeshift needles in the haystack of the state court record.”) (citations

omitted); Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983) (“The exhaustion

requirement is not satisfied if a petitioner presents new legal theories or entirely new

factual claims in support of the writ before the federal court.”). Consequently, the

two new factual assertions are unexhausted.

The failure to properly exhaust each available state court remedy causes a

procedural default of the unexhausted claim. O’Sullivan v. Boerckel, 526 U.S. 838,

847 (1999) (“Boerckel’s failure to present three of his federal habeas claims to the

Illinois Supreme Court in a timely fashion has resulted in a procedural default of

those claims.”). See also Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998)

(“[W]hen it is obvious that the unexhausted claims would be procedurally barred in

state court due to a state-law procedural default, we can forego the needless ‘judicial

ping-pong’ and just treat those claims now barred by state law as no basis for federal

habeas relief.”).

Dukes procedurally defaulted the two unexhausted factual assertions, and, as

a consequence, these factual assertions in support of his claim of ineffective

assistance of counsel in ground one are barred from federal review absent a showing

of “actual cause and prejudice” or “manifest injustice.” Coleman v. Thompson,

501 U.S. 72, 29–30 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986). The basis for

“cause” must ordinarily reside in something external to the defense. Marek v.

Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995). To show “prejudice,” the applicant

must show “not merely that the errors at his trial created the possibility of prejudice,

but that they worked to his actual and substantial disadvantage, infecting his entire

trial with error of constitutional dimensions.” Hollis v. Davis, 941 F.2d 1471, 1480

(11th Cir. 1991) (italics original) (quoting United States v. Frady, 456 U.S. 152, 170

(1982)).

To meet the fundamental miscarriage of justice exception, Dukes must show

constitutional error coupled with “new reliable evidence — whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence —

that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). This

exception is not available unless “petitioner shows, as a factual matter, that he did

not commit the crime of conviction.” Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)

(denying a certificate of probable cause).

Dukes establishes neither “cause and prejudice” nor a “fundamental

miscarriage of justice.” Therefore, the assertions that at sentencing counsel failed

both to adopt his pro se motion to withdraw his plea and to present testimony of a

psychologist are procedurally barred from federal review and not entitled to a

determination on the merits. Having omitted the factual basis for the conflict claim

as presented to the state court and instead having presented only procedurally barred

facts to support the conflict claim, Dukes’s conflict claim (ground one) is barred from

federal review.3 However, the entrapment claim (ground two), as presented to the

state courts, is entitled to a review on the merits.

III. 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 —

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

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.

3 As explained in the preceding footnote, Dukes would not prevail on ground one as

presented to the state court even if the district court were to review this claim of ineffective assistance

of counsel.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains 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, 693 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established rule applies to a given set of

facts that there could be no ‘fairminded disagreement’ on the question . . . .”) (citing

Richter); Woods v. Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable

application of ’ those holdings must be objectively unreasonable, not merely wrong;

even clear error will not suffice.”) (citing Woodall, 572 U.S. at 419). Accord Brown v.

Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not

the correctness per se, of the state court decision that we are to decide.”). The phrase

“clearly established Federal law” encompasses only the holdings of the United States

Supreme Court “as of the time of the relevant state-court decision.” Williams v.

Taylor, 529 U.S. at 412.

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

modified a federal habeas court’s role in reviewing state prisoner applications in

order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are

given effect to the extent possible under law.” Bell v. Cone, 535 U.S. at 694.

A federal court must afford due deference to a state court’s decision. “AEDPA

prevents defendants — and federal courts — from using federal habeas corpus review

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

559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

(“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the benefit of

the doubt’ . . . .”) (citations omitted).

When the last state court to decide a federal claim explains its decision in a

reasoned opinion, a federal habeas court reviews the specific reasons as stated in the

opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons

given by the state court and defers to those reasons if they are reasonable.”). When

the relevant state-court decision is not accompanied with reasons for the decision,

the federal court “should ‘look through’ the unexplained decision to the last related

state-court decision that does provide a relevant rationale [and] presume that the

unexplained decision adopted the same reasoning.” Wilson, 138 S. Ct. at 1192. The

State may contest “the presumption by showing that the unexplained affirmance

relied or most likely did rely on different grounds than the lower state court’s

decision . . . .” Wilson, 138 S. Ct. at 1192.

Dukes voluntarily withdrew his direct appeal (Respondent’s Exhibit 11), and,

in a per curiam decision without a written opinion, the state appellate court affirmed

the denial of Dukes’s subsequent Rule 3.850 motion for post-conviction relief.

(Respondent’s Exhibit 17) The state appellate court’s per curiam affirmance warrants

deference under Section 2254(d)(1) because “the summary nature of a state court’s

decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245,

1254, reh’g and reh’g en banc denied, 278 F.3d 1245 (11th Cir. 2002), cert. denied sub nom

Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 100 (“When a

federal claim has been presented to a state court and the state court has denied relief,

it may be presumed that the state court adjudicated the claim on the merits in the

absence of any indication or state-law procedural principles to the contrary.”), and

Bishop v. Warden, 726 F. 3d 1243, 1255–56 (11th Cir. 2013) (describing the difference

between an “opinion” or “analysis” and a “decision” or “ruling” and explaining that

deference is accorded the state court’s “decision” or “ruling” even absent an

“opinion” or “analysis”).

As Pinholster explains, 563 U.S. at 181–82, 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.

Dukes bears the burden of overcoming by clear and convincing evidence a state

court’s fact determination. “[A] determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have the burden of

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

28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact

but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836

(11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court’s rejection of Dukes’s

post-conviction claims warrants deference in this case. (Order Denying Motion for

Post-Conviction Relief, Respondent’s Exhibit 14 at 87–91)

INEFFECTIVE ASSISTANCE OF COUNSEL

Dukes 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.

See 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.

Dukes 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, Dukes 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. Dukes 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 is discussed 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 Section 2254(d) Dukes must prove that the state court’s decision

“(1) [was] contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States or (2) [was]

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

presented in the State court proceeding.” 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 105. See also Pinholster, 563 U.S. 202 (An applicant

must overcome this “‘doubly deferential’ standard of Strickland and the AEDPA.”),

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

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

ineffective assistance of counsel claim that was denied on the merits in state court is

found to merit relief in a federal habeas proceeding.”), and Pooler v. Sec’y, Dep’t of

Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s

ineffective counsel claim — which is governed by the deferential Strickland test —

through the lens of AEDPA deference, the resulting standard of review is “doubly

deferential.”), cert. denied, 571 U.S. 874 (2013).

In summarily denying Dukes’s motion for post-conviction relief, the state

court recognized that Strickland governs a claim of ineffective assistance of counsel.

(Respondent’s Exhibit 14 at 88) Because the state court rejected the claim based on

Strickland, Dukes cannot meet the “contrary to” test in Section 2254(d)(1). Dukes

instead must show that the state court unreasonably applied Strickland or

unreasonably determined the facts. The presumption of correctness and the highly

deferential standard of review requires that the analysis of a claim begin with the

state court’s analysis.

Dukes’s remaining claim, as alleged in ground two, is that counsel rendered

ineffective assistance by not pursuing an entrapment defense. The post-conviction

court denied this claim as follows (Respondent’s Exhibit 14 at 88–90):

Grounds A, C, and E of Defendant’s motion are based on an

entrapment defense. Defendant alleges that he was riding his

bicycle to the store when a vehicle approached. The driver of

the vehicle was an undercover law enforcement officer and the

Defendant if they could purchase $30.00 of crack cocaine, but

Defendant refused. The driver called Defendant’s attention to

tools in the vehicle and explained that he was a working person

on a 30-minute lunch break and he wanted the crack cocaine

for a sexual encounter with the passenger. Defendant

proceeded to sell them crack cocaine. Defendant now argues

that counsel should have investigated or deposed the CI,

informed Defendant that entrapment was an available defense,

and pursued an entrapment defense.

Florida courts have recognized two different theories of

entrapment: objective entrapment and subjective entrapment.

See Jiminez v. State, 993 So. 2d 553, 555 (Fla. 2d DCA 2008).

Objective entrapment is a defense where law enforcement

conduct is so egregious that it amounts to a denial of due

process. Id. Subjective entrapment, as codified by § 777.201,

Florida Statutes, involves a three-part test: (1) whether the

government agent induced the accused to commit the charged

crime; (2) whether the accused was predisposed to commit the

offense without persuasion; and (3) whether the entrapment

evaluation should be submitted to the jury. Id. (citing Beattie v.

State, 636 So. 2d 744, 746 (Fla. 2d DCA 1993)). With regard to

the accused’s predisposition, the State is permitted to make “‘an

appropriate and searching inquiry’ into conduct of the accused

and present evidence of the accused’s prior criminal history,

even though such evidence is normally inadmissible.” Beattie,

636 So. 2d at 746.

Here, Defendant does not allege conduct so egregious as to

implicate objective entrapment, and so the Court construes the

proposed defense as one of subjective entrapment. The critical

question, then, is whether Defendant was predisposed to

commit the charged crime (i.e. selling cocaine) without

persuasion. The pre-sentence investigation report prepared in

this case indicates that Defendant has two prior convictions for

possession of cocaine and one prior conviction for possession

and sale of cocaine. Further, any persuasion or inducement

resulting from the officer’s alleged conduct falls well short of

creating a “substantial risk that such crime will be committed

by a person other than one who is ready to commit it.”

§ 777.201(1), Fla. Stat. Upon review of the record and the

allegations in Defendant’s motion, the Court finds that the

proposed entrapment defense, whether raised in a motion to

dismiss or as a defense at trial, would certainly have been

unsuccessful. Accordingly, counsel was not deficient for failing

to pursue an entrapment defense, including investigating or

Defendant of an entrapment defense.

Moreover, Defendant was sentenced as a habitual felony

offender, and as such, faced a potential sentence of life

imprisonment if convicted after trial. See §§ 893.13(1)(c)l,

775.082(3)(b), 775.084(4)(a), Fla. Stat. Instead, Defendant

received a sentence of 15 years as a result of his plea. To the

extent that Defendant argues he would have proceeded to trial

and faced a potential life sentence based on a defense of so little

merit, such a claim is inherently incredible. See Montero v. State,

996 So. 2d 888, 891 (Fla. 4th DCA 2008).

The state court (1) determined that, under state law, the undercover officer’s

conduct fell “well short” of what is required to prove entrapment and (2) ruled that

Dukes failed to meet Strickland’s deficient performance requirement to prove

ineffective assistance of counsel, specifically, that “counsel was not deficient for

failing to pursue an entrapment defense, including investigating or deposing the CI,

nor was counsel deficient in failing to advise Defendant of an entrapment defense.”

Counsel’s reliance on a particular defense is “a matter of strategy and is not

ineffective unless the petitioner can prove the chosen course, in itself, was

unreasonable.” Chandler v. United States, 218 F.3d at 1318. “In order to show that an

attorney’s strategic choice was unreasonable, a petitioner must establish that no

competent counsel would have made such a choice.” Provenzano v. Singletary,

148 F.3d 1327, 1332 (11th Cir. 1998). As applied to the present action, Dukes must

show that no competent counsel would have abandoned pursuing an entrapment

defense. Accepting the post-conviction court’s determination –– that foregoing a

guilty plea and risking a sentence of life imprisonment was “inherently incredible”

because the proposed entrapment defense had “so little merit” –– the state court

reasonably applied Strickland in determining that trial counsel’s performance was not

deficient. See Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001) (In

determining “reasonableness,” a federal application for the writ of habeas corpus

authorizes determining only “whether the state habeas court was objectively

reasonable in its Strickland inquiry,” not an independent assessment of whether

counsel’s actions were reasonable.), cert. denied, 537 U.S. 870 (2002).

IV. CONCLUSION

Dukes fails to meet his burden to show that the state court’s decision was

either an unreasonable application of controlling Supreme Court precedent or an

unreasonable determination of fact. As Burt v. Titlow, 571 U.S. 12, 19–20 (2013),

recognizes, an applicant’s burden under Section 2254 is very difficult to meet:

Recognizing the duty and ability of our state-court colleagues to

adjudicate claims of constitutional wrong, AEDPA erects a

formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated in state court. AEDPA requires

“a state prisoner [to] 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 . . . beyond any possibility

for fairminded disagreement.” Harrington v. Richter, 562 U.S.

[86, 103] (2011). “If this standard is difficult to meet” — and it

is — “that is because it was meant to be.” Id., at [102]. We will

not lightly conclude that a State’s criminal justice system has

experienced the “extreme malfunctio[n]” for which federal

habeas relief is the remedy. Id., at [103] (internal quotation

marks omitted).

Dukes’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Dukes and CLOSE this case.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL JN FORMA PAUPERIS

Dukes ts not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no absolute entitlement to appeal a district

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

must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

To merit a COA, Dukes must show that reasonable jurists would find debatable both

the merits of the underlying claims and 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 debate either the merits of the claims or the procedural

issues, Dukes is entitled to neither a COA nor leave to appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis is

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

pauperts.

ORDERED in Tampa, Florida, on July 17, 2020.

AIAN WA dyeleny

STEVEND.MERRYDAY __

UNITED STATES DISTRICT JUDGE

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