Martinez v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

VICTOR GAVILLAN-MARTINEZ,

Petitioner,

v. Case No. 3:18-cv-1031-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Victor Gavillan-Martinez, an inmate of the Florida penal

system, initiated this action on August 12, 2018,1 by filing a Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). Gavillan-Martinez

is proceeding on a second amended petition (Amended Petition; Doc. 17). In the

Amended Petition, Gavillan-Martinez challenges a 2013 state court (Duval

County, Florida) judgment of conviction for second-degree murder and

tampering with evidence. Gavillan-Martinez raises four grounds for relief. See

Amended Petition at 6-16.2 Respondents have submitted a memorandum in

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference to pleadings and exhibits, the Court will cite the page

number assigned by the Court’s electronic docketing system.

opposition to the Amended Petition. See Answer in Response to Order to Show

Cause (Response; Doc. 18) with exhibits (Resp. Ex.).3 Gavillan-Martinez filed

a brief in reply. See Reply to Respondent’s Answer to Order to Show Cause

(Reply; Doc. 31). This action is ripe for review.

II. Relevant Procedural History

On August 26, 2013, Gavillan-Martinez entered a negotiated plea of

guilty to second-degree murder (count one) and tampering with evidence (count

two). Resp. Ex. A2 at 49-50. That same day, pursuant to the plea agreement,

the circuit court sentenced Gavillan-Martinez to a term of incarceration of

twenty-eight years as to count one and five years in prison as to count two. Id.

at 51-57, 61-74. The circuit court ordered the sentence imposed on count two

to run concurrently with the sentence imposed on count one. Id. Gavillan-

Martinez did not appeal.

On April 18, 2014, Gavillan-Martinez filed a pro se motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850

(Rule 3.850 Motion). Resp. Ex. A1 at 6-13. In the Rule 3.850 Motion, he argued

that his counsel was deficient for failing to advise him of the possibility of

3 On August 13, 2019, Gavillan-Martinez filed a motion to supplement the record, in

which he contended that Respondents’ exhibits were not numbered and were incomplete. Doc.

21. After Respondents responded and attached corrected copies of their exhibits, the Court

granted the motion to supplement on September 11, 2019. Doc. 25. Accordingly, when the

Court references Respondents’ exhibits A1 and A2, it refers to those attached to Respondents’

September 6, 2019 response to the motion to supplement. See Docs. 24-1; 24-2.

raising a stand your ground defense. Id. On December 18, 2014, Gavillan-

Martinez supplemented his Rule 3.850 Motion with two additional claims; he

asserted that he was not given the opportunity to have a grand jury indict him

and the cumulative errors in his case prejudiced him. Id. at 15-22. Gavillan-

Martinez later amended his Rule 3.850 Motion on June 8, 2015 (Amended Rule

3.850 Motion). Id. at 43-67. In the Amended Rule 3.850 Motion, he argued that

his counsel was ineffective for failing to: (1) file a motion to dismiss count one;

(2) file a motion to suppress evidence; and (3) advise him concerning the

statutory maximum sentence he faced if he rejected the plea deal. Id. Gavillan-

Martinez amended his motion again (Second Amended Rule 3.850 Motion) on

September 23, 2015, raising the same claims previously brought in the

Amended Rule 3.850 Motion. Id. at 82-106. Gavillan-Martinez supplemented

the Second Amended Rule 3.850 Motion with one additional claim, that his

counsel was deficient for failing to request a presentence investigation (PSI)

report. Id. at 124-26. Following an evidentiary hearing, the circuit court denied

relief. Id. at 150-54. On March 6, 2018, Florida’s First District Court of Appeal

(First DCA) per curiam affirmed the denial of relief without a written opinion

and issued the Mandate on December 5, 2018. Resp. Ex. E.

III. One-Year Limitations Period

This proceeding was timely filed within the one-year limitations period.

See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

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

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

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

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

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

hearing.” Schriro, 550 U.S. at 474. The pertinent facts of this case are fully

developed in the record before the Court. Because the Court can “adequately

assess [Gavillan-Martinez’s] claim[s] without further factual development,”

Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing

will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

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

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

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

that federal habeas relief functions as a guard against extreme malfunctions

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

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

omitted)). As such, federal habeas review of final state court decisions is

“‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v.

Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

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

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

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

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

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

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

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

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

or involved an unreasonable application of, clearly established Federal law, as

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

an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

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

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

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

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies

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

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

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

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

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

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

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

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

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’”[4] Titlow, 571 U.S. at

---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.

290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

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

Ct. 2298 (2017). Also, deferential review under § 2254(d) generally is limited

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

merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating the language

in § 2254(d)(1) “requires an examination of the state-court decision at the time

it was made”).

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

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

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

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

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

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,

562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.

Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under 28

U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

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

2254 habeas action in federal court, a petitioner must exhaust all state court

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

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

present[]” every issue raised in his federal petition to the state’s highest court,

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

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

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

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

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

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

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

“‘“opportunity to pass upon and correct” alleged

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

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

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

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

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

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

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

L.Ed.2d 1 (1999).

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

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

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

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

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[5] supra, at 747–

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

748, 111 S. Ct. 2546; Sykes,[6] supra, at 84–85, 97 S.

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

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

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

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

be excused under certain circumstances. Notwithstanding that a claim has

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

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

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

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

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

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

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[7]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

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

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

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

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

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

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

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

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

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

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

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

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

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

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

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

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

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

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

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

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

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

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

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

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

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

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

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

697.

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

deference.

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

a most deferential one.” Richter, - U.S. at -, 131 S. Ct.

at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable - a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

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

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

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, - U.S. at -, 131 S. Ct. at 788.

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

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

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference--this one to a state court’s decision--when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

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

VI. Findings of Fact and Conclusions of Law

A. Ground One

Gavillan-Martinez alleges his counsel was ineffective for failing to advise

him that he was entitled to request a pre-trial hearing to establish his

immunity from prosecution under Florida’s “Stand Your Ground Law.”

Amended Petition at 6-9. He argues that he hit the victim with a wrench

because the victim tried to stab him with a knife when Gavillan-Martinez

informed the victim he would have to leave Gavillan-Martinez’s residence. Id.

But for counsel’s failure to properly advise him, Gavillan-Martinez contends

he would not have entered a guilty plea. Id.

Gavillan-Martinez alleged a similar claim in his Second Amended Rule

3.850 Motion. Resp. Ex. A1 at 85-90. After an evidentiary hearing, the circuit

court denied relief on this claim, explaining:

The testimony of trial counsel at the evidentiary

hearing was that after discussing the case with the

Defendant and weighing the options regarding filing a

“Stand Your Ground” Motion, a strategic decision was

made not to file the Motion. The Defendant’s

statement to police did not support the Motion and he

would then be subjected to cross examination which

would provide the prosecution with more statements

from which to impeach the Defendant. “[S]trategic

decisions do not constitute ineffective assistance of

counsel if alternative courses have been considered

and rejected and counsel’s decision was reasonable

under the norms of professional conduct.

Schoenwetter v. State, 46 So. 3d 535, 553 (Fla. 2010)

(citing Occhicone v. State, 768 So. 2d 1037, 1048 (Fla.

2000)).

Id. at 152. The First DCA per curiam affirmed the denial of relief without

issuing a written opinion. Resp. Ex. E.

To the extent that the First DCA decided the claim on the merits,8 the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

8 Throughout this order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the appellate

court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

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

presented in the state court proceedings. Thus, Gavillan-Martinez is not

entitled to relief on the basis of this claim.

Nevertheless, even if the First DCA’s adjudication of the claim is not

entitled to deference, the claim in Ground One is without merit. “A plea

conference is not a meaningless charade to be manipulated willy-nilly after the

fact; it is a formal ceremony, under oath, memorializing a crossroads in the

case,” and “[w]hat is said and done at a plea conference carries consequences.”

Scheele v. State, 953 So. 2d 782, 785 (Fla. 4th DCA 2007). A defendant’s

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

Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also Kelley v. State, 109 So.

3d 811, 812-13 (Fla. 1st DCA 2013) (holding a court may deny postconviction

relief on claims that are refuted by sworn representations the defendant made

to the trial court). By entering a guilty plea in Florida, a defendant waives any

right to have his or her counsel investigate or put forward a defense. Smith v.

State, 41 So. 3d 1037, 1040 (Fla. 1st DCA 2010) (citing Davis v. State, 938 So.

2d 555, 557 (Fla. 1st DCA 2006)). Similarly, “[w]here a defendant enters a plea

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

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

Id.

Here, the arrest and booking report reflects that when law enforcement

initially contacted Gavillan-Martinez, he claimed that the victim left his

residence early in the morning to buy drugs but never returned. Resp. Ex. A2

at 13. After further investigation, law enforcement attempted to interview

Gavillan-Martinez, but he invoked his right to remain silent. Id. However, the

woman who lived with Gavillan-Martinez, Erica Roach, told law enforcement

that Gavillan-Martinez was upset with the victim because the victim sent her

explicit text messages. Id. According to Roach, Gavillan-Martinez then went to

the victim’s room to confront him, after which Gavillan-Martinez returned to

Roach with blood on his body and the victim lying dead in the bedroom. Id.

Roach stated that she and Gavillan-Martinez then disposed of the body and

evidence. Id. Notably, during the colloquy for his guilty plea, Gavillan-

Martinez admitted he was guilty of both counts. Id. at 71. He also stated, under

oath, that he was satisfied with his attorney’s representation. Id.

During the evidentiary hearing on the Second Amended Rule 3.850

Motion, both Gavillan-Martinez and his trial counsel, Senovia Portis, testified.

Resp. Ex. A1 at 155-229. Gavillan-Martinez testified in conformance with the

allegations in the Amended Petition. Id. at 209-21. Portis, on the other hand,

denied she told Gavillan-Martinez he was not entitled to a Stand Your Ground

hearing and further testified that she and Gavillan-Martinez discussed a

Stand Your Ground defense. Id. at 172-78, 190-93. According to Portis, during

the discussion, she informed Gavillan-Martinez that he could have a pre-trial

hearing on the matter, but it would require him to testify and face cross-

examination, as well as allow the prosecutor the opportunity to present

evidence after the fact that would go towards his consciousness of guilt. Id. at

172-75. Moreover, she advised Gavillan-Martinez that the prosecutor would

question him concerning his initial denial of knowing anything about what

happened to the victim. Id. at 175-77. Portis believed the circuit court could

have viewed the inconsistencies in his story in a negative light such that his

credibility would be hurt. Id. at 177. According to Portis, Gavillan-Martinez

made the decision not to pursue a Stand Your Ground defense after he heard

her advice. Id. at 177-78.

In federal habeas proceedings, “a determination of a factual issue made

by a State court shall be presumed to be correct,” and the petitioner has “the

burden of rebutting the presumption of correctness by clear and convincing

evidence.” § 28 U.S.C.A. § 2254(e)(1). Here, the circuit court made a factual

finding that Portis advised Gavillan-Martinez of the pros and cons of pursuing

a pre-trial Stand Your Ground hearing and that he personally made the

decision to forego that hearing and enter a guilty plea. The record supports this

factual finding and Gavillan-Martinez has not presented clear and convincing

evidence to overcome the presumption of correctness of this factual

determination. Accordingly, as Portis’ testimony refutes Gavillan-Martinez’s

allegations in the Amended Petition, relief on the claim in Ground One is due

to be denied.

B. Grounds Two and Three

As Ground Two, Gavillan-Martinez argues that his attorney was

ineffective because she failed to file a motion to suppress evidence obtained

without a warrant. Amended Petition at 11-12. Gavillan-Martinez contends

that he had a one-year lease in effect during the period in which law

enforcement searched the mobile home and he did not abandon the residence.

Id. In Ground Three, Gavillan-Martinez argues that his counsel “failed to

investigate the alleged eviction process initiated against the Petitioner and

consequently provided untruthful testimony at the evidentiary held on August

17, 2016. Id. at 14. According to Gavillan-Martinez, no eviction case had been

initiated in the circuit court and had counsel known this information, it would

have supported a meritorious motion to suppress. Id. He maintains that had

counsel filed a motion to suppress and investigated whether he was evicted, he

would not have entered the guilty plea. Id. at 11-12, 14.

Gavillan-Martinez raised both of these issues in ground two of his Second

Amended Rule 3.850 Motion. Resp. Ex. A1 at 91-98. In denying relief, the

circuit court found: “As to ground two, [counsel] testified at the time of the

search of the Defendant’s trailer he was no longer residing there. Therefore,

she had no standing to file a motion to suppress.” Id. at 153. The First DCA

per curiam affirmed the denial of relief without a written opinion. Resp. Ex. E.

To the extent that the First DCA decided the claims on the merits, the

Court will address the claims in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of these claims was not contrary to clearly established federal law, did not

involve an unreasonable application of clearly established federal law, and was

not based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, Gavillan-Martinez is not

entitled to relief on the basis of these claims.

Nevertheless, even if the First DCA’s adjudication of these claims is not

entitled to deference, the claims in Ground Two and Three fail. The arrest and

booking report reflects that law enforcement contacted the mobile home park

manager who advised them that Gavillan-Martinez and his roommate moved

out of the trailer “because they were going to be evicted.” Resp. Ex. A2 at 13.

As Gavillan-Martinez moved out prior to eviction proceedings beginning,

checking the local court docket for eviction proceedings would have been

useless. Due to the fact he moved out and the mobile home park manager gave

permission to search the property, there was no need for law enforcement to

obtain a warrant. Indeed, at the evidentiary hearing, counsel testified that she

came to the same conclusion after reviewing the evidence. Resp. Ex. A1 at 182.

Accordingly, had counsel filed a motion to suppress on the grounds of a

warrantless search it would not have been successful. Counsel cannot be

deemed deficient for failing to raise a meritless argument. See Diaz v. Sec’y for

the Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005) (holding counsel cannot

be ineffective for failing to raise a meritless argument); Bolender v. Singletary,

16 F.3d 1547, 1573 (11th Cir. 1994) (noting that “it is axiomatic that the failure

to raise nonmeritorious issues does not constitute ineffective assistance.”).

Notably, counsel also testified that Gavillan-Martinez never requested that

she file a motion to suppress. Resp. Ex. A1 at 182. On this record, relief on the

claims in Grounds Two and Three is due to be denied.

C. Ground Four

Lastly, Gavillan-Martinez asserts that his counsel provided deficient

performance when she failed to investigate his mental competency at the time

of the incident and when he entered his guilty plea. Amended Petition at 15-

16. According to Gavillan-Martinez, his counsel was aware he suffered from

“mental illness” and he was unable to effectively communicate with counsel or

understand the proceedings. Id. at 16. He also maintains that he was insane

both at the time of the incident and incompetent to proceed with the

prosecution. Id. Gavillan-Martinez alleges that he previously tried to commit

suicide and suffered from delusions, depression, and remorse over what

happened to the victim. Id. at 17.

In response, Respondents argue that Gavillan-Martinez failed to exhaust

this claim because he did not seek review of the denial of this claim on appeal.

Response at 41-44. Gavillan-Martinez contends that his failure to exhaust

should be excused pursuant to Martinez v. Ryan. Reply at 10-11. The Eleventh

Circuit has explained the holding of Martinez as follows:

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

narrow exception to the general rule that the lack of

an attorney or attorney error in state post-conviction

proceedings does not establish cause to excuse the

procedural default of a substantive claim. 566 U.S. at

8, 13-14, 132 S.Ct. at 1315, 1318. The Supreme Court,

however, set strict parameters on the application of

this exception. It applies only where (1) state law

requires a prisoner to raise ineffective-trial-counsel

claims during an initial collateral proceeding and

precludes those claims during direct appeal; (2) the

prisoner failed to properly raise ineffective-trial-

counsel claims during the initial collateral proceeding;

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

counsel was ineffective during those initial state

collateral proceedings; and (4) failing to excuse the

prisoner's procedural default would result in the loss

of a “substantial” ineffective-trial-counsel claim. Id. at

14, 132 S.Ct. at 1318; see also Arthur v. Thomas, 739

F.3d 611, 629 (11th Cir. 2014) (setting forth the

Martinez requirements).

Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1164 (11th Cir. 2017). A

claim is substantial if it “has some merit.” Martinez, 566 U.S. at 14. For

purposes of determining whether postconviction counsel was ineffective, a

petitioner “must show more than the mere fact they failed to raise potentially

meritorious claims; he must show that no competent counsel, in the exercise of

reasonable professional judgment, would have omitted those claims.” Hittson

v. GDCP Warden, 759 F.3d 1210, 1263 (11th Cir. 2014) (emphasis in original).

In order to determine whether this claim is a substantial one, a review

of the record is necessary. Roach, Gavillan-Martinez’s roommate, told law

enforcement that Gavillan-Martinez became upset when he found out the

victim, who was temporarily living with them, sent Roach a text message

concerning oral sex from Gavillan-Martinez’s phone. Resp. Ex. A2 at 13.

Gavillan-Martinez told her that he was going to confront the victim about it,

at which point he went to the victim’s bedroom. When Gavillan-Martinez

returned to Roach, he was covered in blood and the victim was dead. Id.

According to Roach, she and Gavillan-Martinez dumped the victim’s body in a

river, burned the mattress on which the victim had died, cleaned the mobile

home, and painted the room to conceal the murder. Id. Gavillan-Martinez’s

actions do not suggest that he was suffering from a mental illness at the time

of the murder. Indeed, he took greats steps to conceal the murder, which shows

he understood what he had done - murdered someone - and that the potential

consequences he faced were substantial. See Gray v. State, 731 So. 2d 816, 817

(Fla. 5th DCA 1999) (explaining that the insanity defense “requires that the

defendant, at the time of the offense, had a mental infirmity, disease or defect

and that, because of such condition, he did not know what he was doing or the

consequences of what he was doing or, if he knew, he did not know that what

he was doing was wrong.”).

Notably, counsel’s personal notes of the case, which were introduced

during the evidentiary hearing, do not reflect anything regarding Gavillan-

Martinez’s mental health. Resp. Exs. A1 at 231-279; A2 at 1-48. In fact,

counsel’s notes include a homicide interview conducted by a Public Defender

investigator, which reflects that Gavillan-Martinez did not disclose any mental

health issues. Resp. Ex. A2 at 8. The notes reflect that Gavillan-Martinez

provided detailed background information and cooperated with her

investigation. Based on counsel’s records, Gavillan-Martinez comprehended

the charges against him, the gravity of the situation, and communicated well

with his attorney. See Hernandez-Alberto v. State, 126 So. 3d 193, 204 (Fla.

2013) (quoting Hardy v. State, 716 So. 2d 761, 763 (Fla. 1998)) (“The criteria

for determining competence to proceed is whether a prisoner ‘has sufficient

present ability to consult with counsel with a reasonable degree of rational

understanding-and whether he has a rational as well as a factual

understanding of the pending [. . .] proceedings.’”). Likewise, during the plea

colloquy, Gavillan-Martinez appeared to understand the proceedings and the

potential consequences. Id. at 61-74. Throughout the hearing, he answered

questions in a cogent and competent manner. Id. Indeed, he even stated, under

oath, that he had no difficulty understanding the judge. Id. at 69.

Based on this record, there is no support for Gavillan-Martinez’s

contentions that he was insane at the time of the crime or incompetent to

proceed. Critically, he has not provided any evidence to support this claim. As

such, there is no evidence that an insanity defense or mental incompetency

claim would have had any merit whatsoever. Counsel is not deficient for failing

to raise meritless arguments. See Diaz, 402 F.3d at 1142; Bolender, 16 F.3d at

1573. Accordingly, the Court finds that Gavillan-Martinez’s guilty plea was not

involuntary. Therefore, this claim is not a substantial claim such that Martinez

would excuse his failure to exhaust this claim. For the above stated reasons,

relief on the claim in Ground Four is due to be denied.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Gavillan-Martinez seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

Court should issue a certificate of appealability only if the petitioner makes “a

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

2253(c)(2). To make this substantial showing, Gavillan-Martinez “must

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

of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.

274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that

“the issues presented were ‘adequate to deserve encouragement to proceed

further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

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

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

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

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

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 17) is DENIED, and this action is

DISMISSED WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Amended

Petition and dismissing this case with prejudice.

3. If Gavillan-Martinez appeals the denial of the Amended Petition,

the Court denies a certificate of appealability. Because the Court has

determined that a certificate of appealability is not warranted, the Clerk shall

terminate from the pending motions report any motion to proceed on appeal as

a pauper that may be filed in this case. Such termination shall serve as a denial

of the motion.

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

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 26th day of April,

2021.

United States District Judge

Jax-8

C: — Victor Gavillan-Martinez #135908

Counsel of record

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