Stewart v. Jones (Putnam County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ARSENIO DECORD STEWART,

Petitioner,

v. Case No. 3:18-cv-251-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Arsenio Decord Stewart, an inmate of the Florida penal

system, initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254

for Writ of Habeas Corpus by a Person in State Custody. Doc. 1. Petitioner

challenges a state court (Putnam County, Florida) judgment of conviction for

possession of a firearm by a convicted felon, for which he is serving a fifteen-

year term of incarceration. Doc. 1 at 1. Respondents filed a Response.1 See Doc.

14. And Petitioner filed a Reply. See Doc. 23. This case is ripe for review.

1 Attached to the Response are several exhibits. The Court cites the exhibits as

“Resp. Ex.”

II. Governing Legal Principles

A. Standard Under AEDPA

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

governs a state prisoner’s federal habeas corpus petition. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions in

the state criminal justice systems, and not as a means of error correction.’” Id.

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

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

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale in order for the

state court’s decision to qualify as an adjudication on the merits. See Harrington

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

merits is unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

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

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

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

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

the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Exhaustion and Procedural Default

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

habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners

must give the state courts one full opportunity to resolve any constitutional

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

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

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

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

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[2] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[3] supra, at 84–85, 97 S. Ct.

2497. A state court’s invocation of a procedural rule to

deny a prisoner’s claims precludes federal review of the

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

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

claims if, among other requisites, the state procedural

rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and

consistently followed. See, e.g., Walker v. Martin, 562

U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62

(2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612,

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

procedurally defaulted claims from being heard is not

without exceptions. A prisoner may obtain federal

review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.

See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause and

prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,

477 U.S. at 488, 106 S. Ct. 2639).[4] Under the prejudice

prong, [a petitioner] must show that “the errors at trial

actually and substantially disadvantaged his defense

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

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

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

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

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

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

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

remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

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

exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

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

is more likely than not that no reasonable juror would have convicted him’ of

the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

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

of the Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th

Cir. 2010). Since both prongs of the two-part Strickland test must be satisfied

to show a Sixth Amendment violation, “a court need not address the

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

versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As

stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed.” 466 U.S. at 697.

“The question is not whether a federal court believes the state court’s

determination under the Strickland standard was incorrect but whether that

determination was unreasonable - a substantially higher threshold.” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is

“any reasonable argument that counsel satisfied Strickland’s deferential

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

the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Reviewing courts apply a ‘strong presumption’ that counsel’s representation

was ‘within the wide range of reasonable professional assistance.’” Daniel v.

Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Factual Summary and Grounds for Relief

Petitioner raises four grounds for relief, all of which challenge the legality

of his fifteen-year sentence following his plea of no contest. See generally Doc.

1. For context, the Court summarizes the procedural history underlying

Petitioner’s claims.

The state charged Petitioner with possession of a firearm by a convicted

felon, a second degree felony carrying a three-year minimum mandatory term

of incarceration and a maximum fifteen-year term. Resp. Ex. A at 6. On

September 9, 2013, Petitioner, with help from trial counsel, entered a plea of no

contest to “constructive” possession of a firearm by a convicted felon, which does

not carry a minimum mandatory term. Resp. Ex. B at 5. In exchange for his

plea, the state offered Petitioner a one-year-and-one-day term of incarceration.

Id. at 16; Resp. Ex. A at 19. Before the trial court accepted Petitioner’s plea,

Petitioner requested that the trial court set Petitioner’s sentencing hearing for

a later date. Resp. Ex. B at 17. The trial court granted the request, explaining

the following:

THE COURT: All right. Mr. Stewart, I don’t have any

problem with a sentencing date. It will be about a

month from now. But you have to understand that if

you violate the conditions of your pretrial release while

awaiting your sentencing I’m not going to allow you to

withdraw your plea unless there’s a really good reason,

I will bound [sic] by the year and a day.[5] A second

degree felony’s punishable by a maximum penalty of 15

years in prison or a $10,000 fine; do you understand

that?

5 Although the transcript is garbled, it is clear from context and later

proceedings that the trial court said that it was not bound by the year-and-a-

day offer.

. . .

THE DEFENDANT: Yes, sir.

Id. at 17-18. Petitioner then advised the trial court, under oath, that he was

entering the plea knowingly, voluntarily, and with full understanding of its

consequences. Id. at 18-21. He also stated he was entering the plea because he

believed it was in his best interest. Id. He advised the trial court that he had

enough time to discuss his decision with his trial counsel and that he was

satisfied with his trial counsel’s representation. Id. at 21. Based on Petitioner’s

statements, the trial court accepted the plea and set Petitioner’s sentencing

hearing for a later date. Id. at 22. Petitioner remained out on bond pending his

sentencing hearing. Resp. Ex. D at 34.

Five days later, on September 14, 2013, Petitioner violated the conditions

of his pretrial release and was arrested and charged for a new count of

possession of a firearm by a convicted felon. Id. On December 3, 2013, the trial

court conducted its sentencing hearing, during which the state informed the

trial court of Petitioner’s newly charged felony. Id. The trial court then had the

following exchange with the state, defense counsel, and Petitioner:

THE COURT: All right. He pled to constructive

possession of a firearm, the agreed upon disposition

was 12.1. Either he was already out or he was let out,

that’s inconsequential, but he was told that if he

violated the conditions of pretrial release, and the two

most common ways that occurs are not showing up or

committing a new law violation, that he would not be

permitted to withdraw his plea unless there were

extraordinary circumstances, and neither I nor the

State would be bound by the recommended disposition.

So is there any legal bar to proceeding with sentencing

at this time?

MR. JANESK: Not from the State, Your Honor.

MR. SMITH: No legal bar, Your Honor.

THE DEFENDANT: Your Honor, excuse me, I had put

in a motion to dismiss counsel because he came to see

me in October and he told me that you were going to

give me more than a year and a day because of me being

arrested and whatnot while I was out on bond. I don’t

know nothing about no pretrial release, but I come to

find out being released on bond that’s considered

pretrial release. And I don’t remember being told

nothing else because you told me that you was

accepting my plea and you wouldn’t let me or the State

withdraw the plea, all the other stuff I don’t know

nothing about that. And he said--

THE COURT: Well, then you weren’t listening.

THE DEFENDANT: -- I asked him to withdraw my

plea because I told him I didn’t go to trial, I didn’t lose

no trial, I didn’t go to trial, I took a plea that the State

offered. They offered . . . year and a day, I took a year

and a day, so he come and tell me that I was going to

get more than a year and a day, I told him I wanted to

withdraw my plea. And when we came to court last

month, I told him again I needed to talk to him in court,

which he ignored me, he haven’t been to see me since

last month, to try to put in a motion with him to

withdraw my plea before sentencing. And according to

criminal procedure rule 3.17(f) I am entitled to

withdraw my plea, and that’s what I would like.

THE COURT: You’re entitled to ask to withdraw your

plea. So let me ask you this question: Are you asking to

withdraw your plea because you’ve been told by your

attorney, and I’m telling you now that you may be

punished or sentenced to more than 12.1 Department

of Corrections; is that why you want to withdraw your

plea?

THE DEFENDANT: That’s not what I . . . agreed to. I

would like what I agreed to. If not then I feel like--

THE COURT: So you think that notwithstanding the

fact that I told you, and I’m not telling you I think I told

you, I’m telling you I know I told you, and I know that

you told me you acknowledged what I was telling you

that if you violated the conditions of pretrial release

while awaiting sentencing that I would not be bound by

the negotiated disposition. And it’s alleged and a

probable cause determination has been made that

while you were out on pretrial release you possessed a

firearm again. And it’s your understanding that no

matter what you did while awaiting sentencing you

were still going to get the deal?

THE DEFENDANT: Well, I’m not saying that you

didn’t inform me of that, but I don’t remember, but I’m

not saying that you didn’t tell me that.

THE COURT: Why don’t you talk to your attorney. He

can explain everything to you. I want you to articulate

for me what the basis is on why you think that you want

to withdraw your plea today, and then I’ll make a

decision based on that. So talk to him in the jury box.

We’ll recall it. Go on ahead.

Id. at 34-37. Petitioner and trial counsel then privately conversed and

afterward, trial counsel advised the trial court that Petitioner wished to

withdraw his plea:

MR. SMITH: Your Honor, as what Mr. Stewart said

earlier, when I spoke to him previously, I explained to

him the fact that the Court -- that it was within the

Court’s power to sentence him to any legal sentence,

that they would not be bound by the 12.1. Last month

when we came in since . . . Your Honor was not present,

the case was continued so that you could address -- the

State felt that you would want to address this case

since you had originally taken the plea. Mr. Stewart is

wanting to withdraw his plea because he feels that if

he’s not going to receive the 12.1 that that is not what

he negotiated.

THE COURT: Okay. So the motion before the Court ore

tenus is to withdraw his plea based on his belief that --

or your explanation to him that because he committed

a new law violation per the probable cause finding of

the first appearance judge, notwithstanding that he

believes he’s still entitled to 12.1, correct?

MR. SMITH: Yes, Your Honor.

THE COURT: And that’s the basis for the motion to

withdraw?

MR. SMITH: Yes, Your Honor.

THE COURT: All right. State’s position on that?

MR. JANESK: Your Honor, that’s not a legal basis. He

knowingly entered the plea. I’m sure he was advised

that he couldn’t commit new law violations, and he

should still be kept to the plea and we should not be

held to the 12.1 anymore.

THE COURT: All right [sic]. Motion denied.

Id. at 37-38.

The state then presented testimony from Officer Scott Surrency, the

officer who arrested Petitioner for the newly charged offense. Id. at 40-44.

Surrency explained that on September 14, 2013, he and another officer were

driving in an unmarked undercover patrol vehicle when they saw Petitioner

and another individual standing near the street outside a parked car. Id. at 41.

He testified that he witnessed the second individual hand Petitioner a “lit

object” later identified as a marijuana “cigar” or cigarette. Id. Surrency then

pulled up next to Petitioner and when Petitioner recognized they were dressed

in law enforcement attire, Petitioner concealed the marijuana in his hand and

began walking away. Id. at 42. Surrency got out of the vehicle and announced

his identity, but Petitioner continued to walk away and Surrency grabbed

Petitioner to stop him. Id. Surrency conducted a pat down of Petitioner and

found a fully loaded handgun tucked into Petitioner’s waistband. Id. at 42-43.

Petitioner initially refused to tell Surrency his name, but Surrency testified, “I

recognized [Petitioner] from about three days prior to that I happened to be in

this courtroom -- for another matter and saw him in here, recognized him, and

recognized the fact that he was on -- it had something to do with a firearm . . .

.” Id. at 42.

Following Surrency’s testimony, the state requested that the trial court

sentence Petitioner to the maximum fifteen-year term. Id. at 48-49. Defense

counsel requested that the trial court sentence Petitioner to the state’s initial

offer of twelve months and one day. Id. at 49. The trial court sentenced

Petitioner to the maximum fifteen-year sentence. Id. at 51. Petitioner then filed

four pro se motions challenging his fifteen-year sentence and the trial court’s

departure from the state’s original offer, including a motion to withdraw his

plea. See Resp. Ex. A at 45, 46, 66, 71. The trial court denied Petitioner’s pro se

motions, see id. at 51, 55, 68, 72, and appointed counsel to represent Petitioner

during his direct appeal, see id. at 88. Appellate counsel, on behalf of Petitioner,

filed an initial brief under Anders v. California, 386 U.S. 738 (1967). Resp. Ex.

F. And Petitioner filed a pro se initial brief. Resp. Ex. G. The Fifth District Court

of Appeal per curiam affirmed Petitioner’s judgment and sentence without a

written opinion. Resp. Ex. H.

Ground One

Petitioner argues that the trial court “did not provide Petitioner the

opportunity to withdraw the plea prior to imposition of the fifteen year sentence

now at issue.” Doc. 1 at 5. Petitioner raised a similar claim in his pro se brief

filed on direct appeal, arguing he had a right to withdraw his plea prior to

sentencing under Florida Rule of Criminal Procedure 3.170(f). Resp. Ex. G at 5.

The state declined to file a response. See Stewart v. State, No. 5D14-2633 (Fla.

5th DCA). The Fifth DCA rejected the argument and affirmed Petitioner’s

judgment and sentence. Resp. Ex. H.

Rule 3.170(f) provides that “[t]he court may in its discretion, and shall on

good cause, at any time before a sentence, permit a plea of guilty or no contest

to be withdrawn . . . .” Fla. R. Crim. P. 3.170(f). In this claim, Petitioner is asking

the Court to enforce his state created ability to withdraw his plea under that

Rule. But the writ of habeas corpus under 28 U.S.C. § 2254 “was not enacted to

enforce State-created rights.” Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th

Cir. 2000) (citing Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)). The

purpose of a federal habeas proceeding is review of the lawfulness of Petitioner’s

custody to determine whether that custody violates the Constitution or laws or

treaties of the United States. See Coleman v. Thompson, 501 U.S. 722 (1991).

Only in cases of federal constitutional error will a federal writ of habeas corpus

be available. See Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir. 1993); Krasnow

v. Navarro, 909 F.2d 451, 452 (11th Cir. 1990). It is not the province of this

Court to reexamine the state-court’s determination on an issue of state law. See

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “This limitation on federal habeas

review is of equal force when a petition, which actually involves state law issues,

is ‘couched in terms of equal protection and due process.’” Branan, 861 F.2d at

1508 (quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir. 1976)).

In affirming Petitioner’s judgment and conviction, the Fifth DCA found

that the trial court did not abuse its discretion under Rule 3.170(f) when it

denied Petitioner’s presentence request to withdraw his plea. The Court must

adhere to the Florida court’s interpretation of its own laws unless that

interpretation breaches a federal constitutional mandate. McCoy v. Newsome,

953 F.2d 1252, 1264 (11th Cir. 1992). Here, there has been no breach of a federal

constitutional mandate. Petitioner has presented a state law claim, not a claim

of federal constitutional dimension. Thus, it is not cognizable in this proceeding

and is due to be denied.

Ground Two

Petitioner argues that his trial counsel was ineffective for failing to object

to the state’s recommendation that Petitioner receive a sentence greater than

the agreed upon one-year-and-one-day term or the trial court’s imposition of a

greater sentence. Doc. 1 at 7. Respondents argue that this claim is unexhausted

and procedurally defaulted because Petitioner never presented it to the state

courts. Resp. at 10-11. In his Petition, Petitioner asserts that he raised this

claim on direct appeal and in a Florida Rule of Criminal Procedure 3.850 motion

for postconviction relief, which the trial court denied on November 10, 2015.

Doc. 1 at 7-8.

Petitioner did not raise an ineffective assistance of counsel claim in the

Rule 3.850 motion that he references in this Ground. See Resp. Exs. Q, R.

However, in his pro se brief filed on direct appeal, Petitioner raised a claim

about the alleged cumulative effect of his trial counsel’s errors. See Resp. Ex. 9-

12. As mentioned above, the Fifth DCA rejected Petitioner’s argument on direct

appeal and affirmed his judgment and sentence. Resp. Ex. H.

If the state appellate court did adjudicate this claim on the merits, the

state court’s decision is entitled to deference. After applying that deference, the

Court finds that the state court’s adjudication of this claim was not contrary to

clearly established federal law and did not involve an unreasonable application

of clearly established federal law. Nor was the state court’s adjudication based

on an unreasonable determination of the facts given the evidence presented in

the state court proceedings.

Further, even absent deference to the Fifth DCA’s adjudication,

Petitioner’s claim is meritless. The record shows that Petitioner knowingly and

voluntarily entered his no contest plea, and he was advised that if he violated

the conditions of his pretrial release before sentencing, the trial court would not

allow Petitioner to withdraw his plea. Resp. Ex. B at 17. Further, despite

Petitioner’s presentence arrest for a new law violation, trial counsel still

requested that the trial court sentence Petitioner to the state’s original offer of

one year and one day. However, the trial court rejected trial counsel’s request

and imposed a lawful fifteen-year sentence. Petitioner has failed to prove

deficient performance under Strickland and this claim is denied.

Ground Three

Petitioner asserts that the state “breached the plea agreement” when at

sentencing, it recommended that Petitioner receive a sentence greater than the

agreed upon term. Id. at 8. He contends that he never agreed to or knew that

the state could depart from that negotiated disposition. Id.

Petitioner raised this claim in his pro se brief on direct appeal. Resp. Ex.

G at 6. The state declined to file an answer brief, and the Fifth DCA denied the

claim and affirmed Petitioner’s judgment and sentence. Resp. Ex. H.

Respondents argue that this claim is not cognizable because, like Ground One,

it is an issue of state law. Resp. at 9-10. However, in his pro se brief on direct

appeal, Petitioner argued that the state’s disregard of the negotiated plea

agreement violated his federal due process rights. Resp. Ex. G at 8. Thus, if

Petitioner presented the federal constitutional nature of this claim to the state

appellate court, the Fifth DCA’s adjudication is entitled to deference.

When Petitioner entered his plea, he acknowledged that he would be

subject to the fifteen-year maximum sentence if, before sentencing, he violated

the terms of his conditional release. Resp. Ex. B at 17-18. Thus, when Petitioner

was arrested for a new possession of a firearm by a convicted felon charge days

after his plea, he knew that the state could request the imposition of a sentence

exceeding its one-year-and-one-day offer. As such, the Court finds that the state

court’s adjudication of this claim was not contrary to clearly established federal

law and did not involve an unreasonable application of clearly established

federal law. Nor was the state court’s adjudication based on an unreasonable

determination of the facts given the evidence presented in the state court

proceedings. Ground Three is denied.

Ground Four

Petitioner asserts that he is “being held against his will” because he pled

to a 12.1-month term of incarceration and “is being [] detained longer tha[n] he

agreed to be . . . .” Doc. 1 at 10. Respondents argue that this claim is an issue of

state law and not cognizable on federal habeas review. Resp. at 9-10. This Court

agrees. Further, if this claim can be liberally construed as a federal claim, it

lacks merit for the same reasons described in the previous Grounds. Ground

Four is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED and this case is DISMISSED

WITH PREJUDICE.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.®

DONE AND ORDERED at Jacksonville, Florida, this 8th day of March,

2021.

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Arsenio Stewart, #V31003

Allison Leigh Morris, Esq.

8 The Court should issue a certificate of appealability only if the Petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make this substantial showing, Petitioner “must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004) (quoting Slack v. McDaniel, 529 U.S. 4738, 484 (2000)), or that “the issues

presented were ‘adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2008) (quoting Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1983)). Here, after consideration of the record as a whole,

the Court will deny a certificate of appealability.

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