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

> District Court, M.D. Florida · May 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10107595

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JON DAVID PAUL,

Petitioner,

v. Case No. 3:18-cv-1032-MMH-PDB

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,

Respondents.
________________________________

ORDER
I. Status
Petitioner Jon Paul, an inmate of the Florida penal system, initiated this
action on August 21, 2018,1 by filing a Petition Under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody (Petition; Doc. 1). In the
Petition, Paul challenges two 2010 state court (Duval County, Florida)
judgments of conviction for armed robbery. Paul raises seven grounds for relief.
See Petition at 5-53.2 Respondents submitted a memorandum in opposition to

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.
the Petition. See Answer (Response; Doc. 8) with exhibits (Resp. Ex.). Paul did
not file a brief in reply.3 The Petition is ripe for review.

II. Relevant Procedural History
In July of 2009, the State of Florida (State) charged Paul by way of
Information in Case Number 2009-CF-8114 with one count of armed robbery
and in Case Number 2009-CF-8115 with another count of armed robbery. Resp.

Exs. 1 at 16; 2 at 18. On October 15, 2009, Paul entered an open plea of guilty
in both cases. Resp. Exs. 1 at 26-27; 2 at 32-33. On April 16, 2010, following a
sentencing hearing, the circuit court sentenced Paul in both cases to a term of
imprisonment of forty-nine years. Resp. Exs. 1 at 28-31; 2 at 34-37. The circuit

court ordered the sentences to run concurrently with each other. Id. On May 5,
2010, Paul filed a motion to reduce his sentences in both cases. Resp. Exs. 1 at
43-46; 2 at 44-47. The circuit court denied the motion on May 11, 2010. Resp.
Exs. 1 at 47; 2 at 48.

Paul appealed his convictions and sentences in both cases to Florida’s
First District Court of Appeal (First DCA). Resp. Exs. 1 at 48; 2 at 49. Paul’s
appellate attorney filed Anders4 briefs. Resp. Exs. 3 at 1-13; 5 at 1-13. Paul did
not file pro se briefs and the State did not file answer briefs. On August 10,

3 On December 12, 2019, the Court directed Paul to file a reply or a notice that he
would not be filing a reply and advised him that if he failed to respond, the Court would
consider this action ripe and all briefing would be closed. See Doc. 10. Paul did not file a reply
or notice in response.
4 Anders v. California, 386 U.S. 738 (1967).
2011, the First DCA per curiam affirmed Paul’s convictions and sentences in
both cases and issued the mandates on September 7, 2011. Resp. Exs. 4; 6.

On August 8, 2012, Paul, with the assistance of counsel, filed in both
cases a motion for postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.850 (Rule 3.850 Motions). Resp. Ex. 7 at 4-16. In the Rule 3.850
Motions, Paul alleged his counsel was ineffective for: (1) advising Paul to

testify at his sentencing hearing that he possessed and used a firearm during
the commission of the robberies; and (2) failing to investigate defenses before
advising Paul to plead guilty. Id. The circuit court denied relief. Id. at 17-32.
On May 9, 2018, the First DCA per curiam affirmed the denial of the Rule

3.850 Motions without a written opinion and issued the mandate on May 30,
2018. Resp. Ex. 9.
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 [Paul’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.’”[5] 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,
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.

5 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).
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,[6] supra, at 747–
748, 111 S. Ct. 2546; Sykes,[7] 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

6 Coleman v. Thompson, 501 U.S. 722 (1991).
7 Wainwright v. Sykes, 433 U.S. 72 (1977).
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).[8]
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).

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

8 Murray v. Carrier, 477 U.S. 478 (1986).
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
Paul alleges in the title of this ground for relief that his counsel was
ineffective for failing to investigate, discover, and object to a jurisdictional
defect. Petition at 5. However, the body of his arguments does not address

counsel’s alleged deficiencies but instead argues the charging documents were
defective. Id. at 5-11. As such, in liberally construing this claim, the Court will
address both issues. According to Paul, the charging documents filed in both
his cases were defective because the prosecutor who signed them affirmed that

she had received testimony under oath from material witnesses when she
actually did not. Id. In support, Paul contends that there were no sworn
statements included in his discovery materials and no evidence indicating the
prosecutor had received such testimony. Id. Thus, he contends that the circuit

court lacked subject matter jurisdiction because Paul was never properly
charged. Id.
Respondents contend that to the extent Paul raises a stand alone claim
concerning the allegedly defective charging documents, such claim is not

cognizable in a federal habeas petition because it is solely a matter of state law.
Response at 17-18. Concerning Paul’s ineffective assistance of counsel claim,
Respondents assert that Paul never raised this claim in state court; therefore,
he failed to exhaust it. Id. at 19-20. Although Paul did not file a reply, in the

Petition he contends that lack of subject matter jurisdiction can be raised at
any time. Petition at 6. He also maintains that this claim was unknown to him
at the time he sought state review and if his counsel knew, he was ineffective
for failing to raise it. Id. at 11.

The sufficiency of a charging document is not “the subject of federal
habeas corpus relief unless the indictment or information is so deficient that
the convicting court is deprived of jurisdiction.” DeBenedictis v. Wainwright,
674 F.2d 841, 842-43 (11th Cir. 1982). The Eleventh Circuit has explained:

“An indictment is considered legally sufficient if it: (1)
presents the essential elements of the charged offense,
(2) notifies the accused of the charges to be defended
against, and (3) enables the accused to rely upon a
judgment under the indictment as a bar against
double jeopardy for any subsequent prosecution for the
same offense.” United States v. Jordan, 582 F.3d 1239,
1245 (11th Cir.2009) (citation and quotations omitted).
“In determining whether an indictment is sufficient,
we read it as a whole and give it a ‘common sense
construction.’” Id. (citing United States v. Gold, 743
F.2d 800, 813 (11th Cir.1984) and United States v.
Markham, 537 F.2d 187, 192 (5th Cir.1976)). “In other
words, the indictment's ‘validity is to be determined by
practical, not technical, considerations.’” Jordan, 582
F.3d at 1245 (citing Gold, 743 F.2d at 812).

United States v. Schmitz, 634 F.3d 1247, 1259-60 (11th Cir. 2011) (footnote
omitted). Here, the charging documents were legally sufficient because they
presented the essential elements of the offense of armed robbery, notifying
Paul of the charges he was facing. Resp. Exs. 1 at 16; 2 at 18. Florida
procedural rules require that “[a]n information charging the commission of a
felony shall be signed by the state attorney, or a designated assistant state
attorney, under oath stating his or her good faith in instituting the prosecution
and certifying that he or she has received testimony under oath from the

material witness or witnesses for the offense.” Fla. R. Crim. P. 3.140(g). This
oath and verification requirement is a creature of state law and not found in
the United States Constitution. As such, whether the charging documents
comply with this state procedural rule is a matter of state law only, and, thus,

not cognizable in federal habeas proceedings. See Swarthout v. Cooke, 562 U.S.
216, 219 (2011) (holding errors of state law are not cognizable in federal habeas
review); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province
of a federal habeas court to reexamine state-court determinations on state-law

questions.”). Accordingly, Paul’s claim in ground one that the circuit court
lacked subject matter jurisdiction provides no basis for habeas relief.
Turning to Paul’s claim of deficient performance, the record reflects that
Paul did not raise this issue on direct appeal or in his Rule 3.850 Motions.

Therefore, the claim is unexhausted. To the extent Paul contends issues
concerning a state court’s subject matter jurisdiction can be raised at any time
in a federal habeas proceeding, he offers no federal case law to support the
contention, and the Court independently has not identified any federal case

law or statutory authority supporting the proposition. As such, this argument
does not excuse Paul’s failure to exhaust. To the extent Paul’s allegations in
the Petition could be construed to contend that his failure to exhaust this claim
should be excused under Martinez v. Ryan, the contention is unavailing. 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 Florida, a charging document is considered fundamentally defective
only if it completely omitted an essential element of the crime, or was so vague,
indistinct or indefinite that the defendant was misled. Delgado v. State, 43 So.
3d 132, 133-35 (Fla. 3d DCA 2010). “For an information to sufficiently charge

a crime it must follow the statute, clearly charge each of the essential elements,
and sufficiently advise the accused of the specific crime with which he is
charged.” Price v. State, 995 So. 2d 401, 404-406 (Fla. 2008). “Generally the
test for granting relief based on a defect in the information is actual prejudice

to the fairness of the trial.” Id. As explained above, the charging documents
filed in Paul’s criminal cases sufficiently and clearly alleged each element of
the crime and advised him of the charges against him. Resp. Exs. 1 at 16; 2 at
18. The alleged technical deficiency in the charging documents about which
Paul complains did not create unfair proceedings against him. Moreover, this
claim is based entirely on speculation based on his failure to find sworn

statements in the discovery materials he received. However, such speculation
does not support a conclusion that the prosecutor did not actually receive sworn
testimony. The speculative nature of this claim renders it meritless. See
Jenkins v. Comm'r, Alabama Dep't of Corr., 963 F.3d 1248, 1273 (11th Cir.

2020) (quotations omitted) (explaining that “more than mere conceivability is
required to establish prejudice: The likelihood of a different result must be
substantial, not just conceivable.”). Accordingly, Paul fails to establish that
this claim is a substantial claim such that his failure to exhaust should be

excused. For the above stated reasons, Paul is not entitled to relief on the
claims in Ground One.
B. Ground Two
As Ground Two, Paul argues that his counsel was deficient for advising

him to testify during his sentencing hearing that he possessed and used a
firearm during the commission of offenses. Petition at 13-19. Paul maintains
that his counsel told him that if he admitted to possessing the firearm, then
there would be a greater chance of receiving a youthful offender sentence. Id.

Instead, the circuit court sentenced Paul to forty-nine years in prison, which
far exceeded the fifteen-year sentence the State recommended. Id. According
to Paul, the circuit court determined forty-nine years was appropriate because
Paul actually possessed the weapon. Id. As such, he claims his counsel was
deficient for recklessly recommending to him that he admit to having possessed

the gun. Id. Additionally, Paul contends that his counsel failed to advise him
of the maximum sentence he faced if he proceeded to trial and generally did
not advise him of the consequences of entering an open plea. Id. Paul also
claims that his attorney should have attempted to negotiate a plea deal on his

behalf. Id.
Respondents contend that Paul exhausted the claim that counsel erred
in advising him to admit he possessed a firearm, but Paul did not exhaust his
claim that counsel should have negotiated a plea deal. Response at 22-23.

Thus, Respondents argue that relief on this latter claim is due to be denied. Id.
The record reflects that Paul did not argue, on direct appeal or in his Rule
3.850 Motions, that his counsel was deficient for failing to negotiate a plea or
failing to advise Paul of the consequences of entering his open plea. Resp. Exs.

3 at 7. Paul has not alleged cause and prejudice to overcome this, or otherwise
alleged he is actually innocent. As such, these subclaims are due to be
dismissed as unexhausted.
Paul did, however, exhaust his claim that counsel was ineffective in

advising him to admit he possessed a gun, as he raised a substantially similar
claim as ground one of his Rule 3.850 Motions. Resp. Ex. 7 at 6-11. The circuit
court denied relief, explaining:
Initially, the Court finds that this claim is legally
insufficient because Defendant fails to allege that but
for counsel’s alleged deficiencies, he would not have
entered a plea but would have gone to trial. See e.g.,
Carruthers v. State, 42 So. 3d 337 (Fla. 4th DCA 2010)
(Postconviction claims challenging voluntariness of
defendant’s plea were facially insufficient because,
inter alia, defendant did not allege that, had the errors
not occurred, he would not have entered his plea but
would have proceeded to trial).

The Court further finds that Defendant is not
entitled to amend this claim because, as explained
infra, it cannot reasonably be amended in good faith to
state a sufficient claim. See Spera v. State, 971 So. 2d
754, 762 (Fla. 2007) (Permitting postconviction
movants to amend claims “only if they can be amended
in good faith”). No minimum mandatory term was
imposed as a result of Defendant’s admission to
carrying a firearm. The issue of whether Defendant
actually possessed a firearm was addressed during the
plea hearing. The prosecutor noted that it was pursing
an investigation “to see if we could actually file the
minimum mandatory in these cases . . . and it was a
strong possibility in this case, although it hadn’t yet
been done.” Defendant told the Court that he had
discussed this issue with defense counsel, and he
wanted to proceed with entering a plea before the
State made its final decision about whether it would
pursue a minimum mandatory term against him based
on actual possession of the firearm.

The record is clear that Defendant was aware he
could receive consecutive life sentences for his
participation in these crimes, and he confessed to
providing the weapons and carrying the real firearm
in the hopes that his candor would inspire the Court
to be lenient in imposing sentence. Instead of imposing
the maximum possible term of consecutive life
sentences, Defendant received 49-year concurrent
sentences with no minimum mandatory terms. To that
extent, Defendant’s candor did result in a benefit to
him, contrary to the allegation in his motion. The State
had recommended 15 years’ imprisonment.
Defendant’s sentence was longer than those of his
codefendants because of the central role Defendant
played in the crime spree, not just the fact that he
carried the real firearm: the group met at his house to
plan the events, Defendant drove the getaway vehicle
on at least one occasion, he was out of the car on every
occasion, as well as the fact that he was the one
brandishing the real firearm as explained during the
sentencing hearing.

In sum, it is clear that Defendant’s open plea,
and his candor about the extent of his participation,
were the reasons he did not receive a significantly
higher sentence - potentially life imprisonment. The
fact that he was the one brandishing the real firearm
was only one of several factors relied upon by the
Court in imposing a more onerous sentence than that
of his codefendants. Being fully aware that there was
no agreement as to disposition, Defendant knowingly
gambled that his admission to actually possessing the
real firearm would get him a Youthful Offender
sentence. The gamble did not pay off. And yet even
after the sentence was imposed, Defendant continued
to rely on his candor with the Court as a basis for
seeking a reduction of his sentence. Again, the gamble
failed to pay off.

The crux of Defendant’s claim appears to be that
counsel was ineffective in advising Defendant to
truthfully concede at the sentencing hearing that he
possessed the real firearm during the crime spree in
an effort to convince the Court to impose a Youthful
Offender sentence. In the context of the procedural
facts of these cases and the dispositions of the
codefendants, it is clear to the Court that
Defendant’[s] claim is simply a case of buyer’s
remorse. Defendant was well aware at all time, from
the plea hearing through the sentencing hearing that
there was no agreement as to disposition, and that he
was subjected to potential consecutive life sentences.
He told the Court at the time of his plea that no
promises had been made to him to get him to enter his
plea. After careful consideration and examination of
the facts, the Court finds that Defendant has failed to
meet either the performance or the prejudice prong of
the Strickland test, and Ground One is without merit.

Id. at 26-28 (record citations omitted). The First DCA per curiam affirmed the
denial of this claim without a written opinion. Resp. Ex. 9.
To the extent that the First DCA decided the claim on the merits,9 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
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, Paul 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 Two is without merit. “A plea
conference is not a meaningless charade to be manipulated willy-nilly after the

9 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.
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). Indeed, 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).
The record reflects that during the plea colloquy, Paul admitted he was
guilty and that he was satisfied with his counsel’s representation. Resp. Ex. 1

at 235-37. Paul also acknowledged that he faced a maximum sentence of life in
prison and that no one had made any promises to him to enter his open plea.
Id. at 234-37, 240. During the sentencing hearing, the two victims in both cases
testified that approximately four people robbed them on the streets, with both

being able to positively identify the suspects. Id. at 82-98. One of the co-
defendants, Jennifer Smith, testified that Paul possessed a real gun and
directed her and the others to empty the pockets of the two victims. Id. at 129-
32. Likewise, another co-defendant, Justin Voshell, testified that Paul decided

to bring the guns. Id. at 148. Paul was the last to testify. According to Paul, he
bought the BB gun Voshell possessed and also bought the .380 caliber handgun
he possessed during the commission of the robberies. Id. at 160-61. Paul also
apologized to the victims, the co-defendants, and their families, stating that it
was “all my fault that got us in here.” Id. at 159. He acknowledged that he

should have been the one to say no to the robberies, that he knew it was wrong
in his mind, but that he did not listen. Id. at 157. Notably, the State introduced
letters Paul wrote while in Jail that attempted to “rally the troops to not come
forward and not cooperate with the state.” Id. at 197. The prosecutor also

represented that because each defendant pled and took responsibility, she
declined to file more charges, although she could have. Id. at 169-70.
In sentencing Paul to forty-nine-year terms of incarceration, the circuit
court explained:

My review of the record makes clear that on the night
of the incident in question, there was a very clear,
loosely organized, small group of young people who
had decided to engage in potentially lethal conduct
that exposed numerous people within our community
to potentially life ending scenarios. The record makes
clear and undisputed and in a meaningful way that
you were an active willing participant to that activity.

What is also made clear, and I believe was
undisputed, is that you were the one holding the true
firearm. And that you were the one brandishing or
pointing that firearm at every episode to which you
have been charged.

What is clear from this record is that that night
in question there was a crime induced high that
spurred you all from one armed robbery to the next.
And by doing so, you have conducted by your actions
and you have participated in heinous criminal
activities that exposed this community to severe and
potentially life ending conduct. I believe y'all even met
at your house. I believe you drove the first time, if I am
not mistaken, by the record presented to this Court.
And the nature and significance of your participation
simply cannot be overlooked.

Id. at 212-13.
Based on this record, Paul was well aware of the maximum sentence he
faced when he entered his open plea and he stated under oath that his counsel
made no promises to him concerning the sentence he could receive. While the
circuit court did address Paul’s possession of a firearm when it imposed the
sentence, it also addressed other factors that influenced the sentence it
ultimately imposed. As such, Paul’s possession of a firearm was not the sole
factor in the circuit court’s determination of the length of the prison sentence.
Accordingly, Paul’s claim that he would not have received the same sentence
had he not admitted he possessed a firearm is wholly speculative. Indeed, even
if Paul had not testified on the subject, his two co-defendants also testified that

Paul obtained and possessed the firearm. Therefore, the circuit court could
have made the same determination concerning Paul’s possession of the weapon
even if Paul had not testified. For these reasons, Paul has failed to demonstrate
prejudice. See Jenkins, 963 F.3d at 1273. In light of the above analysis, relief

on the claim in Ground Two is due to be denied.
C. Ground Three
Next, Paul asserts that his counsel was ineffective for failing to

investigate the case, conduct depositions, and file a motion to suppress.
Petition at 21-29. Had counsel investigated, deposed witnesses, and filed a
motion to suppress the search and seizure of his vehicle, Paul contends that he
could have obtained a more favorable plea deal from the State than the open

plea he entered. Id. at 21-22. As to the motion to suppress, Paul avers that law
enforcement needed a warrant to stop and search his vehicle and a motion to
suppress would have excluded the weapons found in the vehicle. Id. at 28-29.
Without these pre-trial investigations and motion practice, Paul claims that

there is no way he could have made an informed decision to enter an open plea.
Id. at 22. Paul also asserts that his counsel should have told the prosecutor
Paul was willing to cooperate and then negotiate a plea deal; instead, of telling
the prosecutor this after Paul had already entered an open plea of guilty. Id.

at 23-24. According to Paul there was no upside in counsel advising him to
enter an open plea. Id. at 25-26. Paul contends that he did not understand what
was happening during the plea colloquy and just answered as a means to
appease his counsel and to get through the proceeding. Id. at 26-27.

Paul raised a similar claim in his Rule 3.850 Motions. Resp. Ex. 7 at 11-
14. In denying relief on this claim, the circuit court found:
At the commencement of the plea hearing, defense
counsel stated, “[A]fter conducting discovery in the
case, and investigating the allegations made against
[Defendant], my client has authorized me to withdraw
his previously entered plea of not guilty, and enter a
plea of guilty straight to the Court.” Defendant did not
dispute this statement.

The plea form signed by Defendant stated in
pertinent part

My attorney has investigated the State’s
case against me to my satisfaction and we
have discussed all the possible defenses to
my satisfaction. . . . My attorney has taken
all actions and spoken to all person
requested by me, or has explained to my
satisfaction and agreement why such
things were not done, and I concur with
my attorney’s decision in that regard. I am
completely satisfied with the services
rendered by my attorney on my behalf in
this case.

At the plea hearing, Defendant admitted he had
gone over the plea form with his attorney, that he can
read and write English, that he understood what he
read, and that by signing the plea form he was
agreeing that the statements therein were true and
correct. Defendant also engaged in the following
colloquy with the Court:

THE COURT: And are you satisfied that
your attorney has thoroughly investigated
the case against you?

THE DEFENDANT: Yes, ma’am.

THE COURT: And have you and he
discussed . . . all the defenses that you
could have raised, if you had had a trial in
this case?

THE DEFENDANT: Yes, Your Honor.

In light of the statements in the plea form, as
well as Defendant’s statement at the plea hearing that
he had read it and understood it and that he was
satisfied that his attorney had thoroughly investigated
the case, the Court finds that Defendant is unable to
meet either the performance or the prejudice prong of
the Strickland test. See, e.g., Hen Lin Lu v. State, 683
So. 2d 1110 (Fla. 4th DCA 1996) (Pre-printed plea form
containing rights advisements may be used by Court
to inform defendant of all rights he is waiving, as long
as Court orally verifies that defendant has
intelligently consumed the written information
contained within it); Callaway v. State, 41 Fla. L.
Weekly D2206 (Fla. 3d DCA Sept. 28, 2016) (Trial
counsel’s failure to depose victims did not prejudice
defendant, as element of ineffective assistance of
counsel claim, in proceedings on armed robbery with a
firearm charges, to which defendant pled guilty,
despite existence of identification issue; strengths and
weaknesses of victim’s identifications were well known
to both defendant and his counsel prior to plea, and
there was no particularized harm flowing from
counsel’s failure to depose victims).

. . . .

The Court relies on the chronological events of
this crime spree as set out in the Underlying Facts of
the Crimes, supra and reiterates only the most salient
facts here. After the Martin/Barkoski/Gordon robbery,
a BOLO was dispatched indicating that “the same
suspect vehicle was used” at two prior robberies that
had just occurred in the immediate area.

After the final robbery of victim Tristan Tex, a
BOLO was broadcast for a green Jeep Cherokee.
Immediately thereafter, an officer spotted a 1996 Jeep
Cherokee van, described in the arrest report as blue,
in the immediate area where the string of robberies
had just occurred. The officer followed the vehicle until
it turned onto a dead end road, requiring it to stop.
Significantly, because of the dead end the car was
forced to stop before the officer even activated his blue
lights.

The Court finds that even if counsel had filed a
motion to suppress, there is no reasonable probability
that it would have been granted because the vehicle
stopped due to the dead end, not because of any law
enforcement action. But even if the vehicle had been
stopped due to law enforcement action, the Court finds
that based on the totality of the circumstances
available to the officer at the time, he had probable
cause to believe that the Jeep Cherokee was involved
in the string of robberies that had just occurred in that
exact area; therefore the stop would have been lawful.
Because there was no factual or legal basis to support
a motion to suppress, defense counsel cannot be
deemed ineffective in failing to file one. See Card v.
Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990) (Defense
counsel cannot be deemed ineffective for failing to file
a motion that has no merit).

Id. at 28-31 (emphasis in original and record citations and footnote omitted).
The First DCA per curiam affirmed the denial of relief without issuing a
written opinion. Resp. Ex. 9.
To the extent that the First DCA decided the claim on the merits, 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
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, Paul 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 Three fails. Under Florida law, by
entering a guilty plea, 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. Moreover, a defendant “cannot
assert that his plea was not knowingly and voluntarily entered where he

concedes he was well aware of his counsel’s deficiencies prior to entry of his
plea.” Davis, 938 So. 2d at 557.
During the plea colloquy, Paul admitted he was guilty and affirmed,
under oath, that he was satisfied with his counsel’s representation and that he

had discussed all possible defenses with counsel. Resp. Ex. 1 at 235-37. Of
specific import, Paul affirmatively acknowledged he was giving up his right to
file a motion to suppress. Id. at 239-40. Based on this record, Paul waived the
right for his attorney to investigate or put forward a defense, including the
filing of a motion to suppress. See Smith, 41 So. 3d at 1040. Paul is bound by

his sworn affirmations in court, which refute the instant claim. See Blackledge,
431 U.S. at 74; Kelley, 109 So. 3d at 812-13. In light of the above analysis, relief
on the claim in Ground Three is due to be denied.
D. Ground Four

Next, Paul contends that his forty-nine-year concurrent sentences were
unconstitutionally disproportionate to the offenses committed and disparate
in comparison to the sentences his co-defendants received, and that his counsel
was ineffective for failing to object to the sentences for the same reasons.

Petition at 31-47. Paul maintains that he took responsibility for his actions,
was only eighteen years old at the time of the offense, offered assistance to the
State, scored out to a minimum 82.5 months in prison, and the prosecutor had
recommend only fifteen years in prison. Id. Based on these factors and the facts

underlying the offenses, Paul argues his sentences are disproportionate to the
offenses committed. Id. Paul further contends that in light of the fact his co-
defendants received sentences of fifteen years, thirty-five years, and forty-two-
and-a-half years in prison, his forty-nine-year sentences are disparate in

comparison considering they all equally participated in the robberies. Id. at 43-
47.
Respondents contend that this claim is unexhausted because Paul failed
to raise it in state court. Response at 30. In the Petition, Paul alleges that he

raised this issue on direct appeal but could not raise a claim of ineffective
assistance of counsel on direct appeal. Petition at 47-48. He further asserts
that he raised this claim in a motion to modify his sentence, which cannot be
appealed. Id. at 31, 47-48. As to this latter point, Florida Rule of Criminal

Procedure 3.800(c) is not a procedural mechanism by which a defendant can
challenge the legality of his sentence, but rather is a means to request the
sentencing court for mercy and lower a legal sentence. Because the Rule cannot
be used to challenge the legality of a sentence or a raise a claim of ineffective

assistance of counsel, the instant claims were not exhausted when Paul filed
his motion to modify sentence. See Pagan v. McNeil, No. 09-23081-CIV, 2010
WL 3952000, at *1 (S.D. Fla. Oct. 8, 2010) (“Pagan's 3.800(c) motion cannot
have exhausted his claim that his sentence violated federal law, let alone his

additional claim that he was denied due process in revocation proceedings,
when the motion did not challenge the legality of that sentence.”).
Turning to the issue of whether Paul properly raised this claim on direct
appeal, the Court notes that in an unpublished opinion, the Eleventh Circuit

found that an adjudication of a claim presented in an Anders brief can satisfy
the exhaustion requirement. See Jenkins v. Bullard, 210 F. App'x 895, 898
(11th Cir. 2006). This is so, because the Anders procedure requires an appellate
attorney to note possible appellate issues in the Anders brief and the appellate
court is required to conduct an independent review of the record to determine

if those possible issues are of arguable merit. Id. Thus, when an issue is raised
in an Anders brief, it satisfies the exhaustion requirement under AEDPA. Id.
Here, however, Paul’s appellate counsel did not raise this issue in the Anders
brief. Resp. Ex. 3. Likewise, Paul never filed a pro se initial brief, let alone

raised this issue. Id. As such, Paul did not exhaust this claim through his direct
appeal proceedings. See Jenkins, 210 F. App'x at 898. The record further
reflects that Paul did not raise this claim in his Rule 3.850 Motion. Resp. Ex.
7 at 4-16. Therefore, neither the circuit court nor the First DCA was given an

opportunity to review the claim. In light of this record and Paul’s failure to
allege cause and prejudice, the claim in Ground Four is due to be dismissed as
unexhausted.
Even if properly exhausted, Paul is not entitled to relief on this claim.

“In non-capital cases, the Eighth Amendment does not ‘require strict
proportionality but rather forbids only extreme sentences that are grossly
disproportionate to the crime.’” Pate v. Warden, 822 F. App'x 960, 962 (11th
Cir. 2020) (quoting Graham v. Florida, 560 U.S. 48, 59-60 (2010)). The

Eleventh Circuit explained in Pate that:
To determine whether a sentence for a term of years is
grossly disproportionate to the crime, the court must
“begin by comparing the gravity of the offense and the
severity of the sentence.” Id. at 60, 130 S.Ct. 2011. This
inquiry is based on “all of the circumstances of the
case.” Id. at 59, 130 S.Ct. 2011. If this “threshold
comparison” yields an “inference of gross
disproportionality,” which will be “rare,” “the court
should then compare the defendant's sentence with
the sentences received by other offenders in the same
jurisdiction and with the sentences imposed for the
same crime in other jurisdictions.” Id. at 60, 130 S.Ct.
2011 (quotation marks omitted). Only if this
“comparative analysis” validates the initial inference
of gross disproportionality is the sentence cruel and
unusual. Id.; see United States v. Raad, 406 F.3d 1322,
1323–24 (11th Cir. 2005) (outlining the same basic
approach).

Id. at 962-63.
Here, the record evidence reflects that Paul and several of his friends
drove around in a vehicle and robbed by gunpoint multiple people they saw
walking or standing outside. Resp. Ex. A1 at 82-104, 124-49, 157-62. The co-
defendants and Paul each testified that Paul possessed and pointed the real
gun at the victims and that he bought that firearm as well as a BB gun another
co-defendant used during the offenses. Id. After being arrested, Paul attempted
to convince his co-defendants not to cooperate with the State. Id. at 197. The
circuit court determined “that on the night of the incident in question, there
was a very clear, loosely organized, small group of young people who had
decided to engage in potentially lethal conduct that exposed numerous people
within our community to potentially life ending scenarios.” Id. at 212.
According to Paul, his co-defendants received sentences of fifteen years, thirty-
five years, and forty-two-and-a-half years in prison. Based on this record, Paul
has failed to establish that his sentence is one of the rare instances in which

his term of years is disproportionate to the offenses he committed or the
sentences his co-defendants received. Paul’s forty-nine-year sentence reflects
the circuit court’s finding that he was the organizer of the crime spree and both
carried and brandished the firearm which placed multiple victims in life-

threatening situations. In light of the fact that Paul faced life sentences for
these crimes, the Court finds his sentences are not disproportionate to the
offenses or disparate to his co-defendants’ sentences. It follows then that
counsel cannot be deficient for failing to raise these meritless challenges. 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.”). Accordingly, the claim for relief on Ground Four is due
to be denied.
E. Ground Five
In Ground Five, Paul alleges that his counsel was deficient for failing to

orally move to withdraw his plea after the circuit court imposed sentences on
his co-defendants and before it was able to sentence him. Petition at 48-49.
According to Paul, he was the third defendant to be sentenced at the joint
sentencing hearing and prior to being sentenced his counsel told him “‘its’ [sic]
not looking good Jon the last one got 42 years and the one before got 35 years.”

Id. Paul maintains that “[r]ight then and there Counsel should have advised
Paul to withdraw his plea pursuant to [Florida Rule of Criminal Procedure]
3.170(f).” Id. at 49. He contends that the State violated an oral agreement when
it called the victims and his co-defendants to testify at the sentencing hearing.

Id. Additionally, he asserts that counsel should have moved to withdraw the
plea after sentencing as well. Id.
In response, Respondents aver that Paul failed to raise this claim in state
court and thus, failed to exhaust it. Response at 34. Paul merely states in the

Petition that he could not raise claims of ineffective assistance on direct appeal.
Petition at 49-50. However, such claims can be brought in Florida under Rule
3.850. Paul’s Rule 3.850 Motions did not raise this issue though. As such, Paul
failed to exhaust this claim. Paul has not alleged cause and prejudice to

overcome his failure to exhaust and he has not otherwise alleged that he is
actually innocent. Therefore, the claim in Ground Five is due to be dismissed
as unexhausted.
Nevertheless, even if properly exhausted, the claim fails because Paul’s

prejudice allegation is entirely speculative. If counsel had successfully
withdrawn Paul’s plea, which seems unlikely given that the sentencing
hearing was almost over, Paul faced potential life-sentences had he proceeded
to trial, which would greatly exceed the forty-nine-year concurrent sentences
he received pursuant to the open plea. Without speculating, Paul has no way

of knowing whether he would have received a lesser sentence had he
withdrawn his open plea. Therefore, this claim is due to be denied because it
is speculative. See Jenkins, 963 F.3d at 1273; Tejada v. Dugger, 941 F.2d 1551,
1559 (11th Cir. 1991) (recognizing that vague, conclusory, speculative, or

unsupported claims cannot support an ineffective assistance of counsel claim).
Based on the above, relief on the claim in Ground Five is due to be denied.
F. Ground Six
Paul maintains that his counsel was ineffective for failing to move to

recuse the sentencing judge because the judge had a reputation, although he
does not further explain this reputation. Petition at 50-51. He further states,
without explaining its relevance, that “the defendant pled to one Judge and
was later sentenced by another Judge.” Id. at 51.

Respondents argue this claim is unexhausted because Paul never raised
it in state court. Response at 35. Again, in the Petition, Paul asserts that claims
of ineffective assistance of counsel cannot be raised on direct appeal. Petition
at 51. Notably, the record establishes that Paul did not raise this claim on

direct appeal or in his Rule 3.850 Motions; therefore, the claim is unexhausted.
Paul has not alleged his actual innocence or cause and prejudice to overcome
his failure to exhaust. As such, the claim in Ground Six is due to be dismissed.
Nevertheless, even if properly exhausted, this claim is meritless. In
Florida, “[a] trial judge’s action in other cases or a reputation among lawyers

for certain sentencing practices are simply legally insufficient reasons to
disqualify a trial judge.” Williams v. State, 987 So. 2d 1, 10 (Fla. 2008). To the
extent Paul may be complaining about the fact a different judge sentenced him
than the one that took his plea, Florida Rule of Criminal Procedure 3.700(c)

provides:
In any case, other than a capital case, in which it is
necessary that sentence be pronounced by a judge
other than the judge who presided at trial or accepted
the plea, the sentencing judge shall not pass sentence
until the judge becomes acquainted with what
transpired at the trial, or the facts, including any plea
discussions, concerning the plea and the offense.

Fla. R. Crim. P. 3.700(c)(1). Here, the record reflects that the sentencing judge
heard evidence of what occurred; therefore, the judge complied with Rule
3.700(c)(1). As neither of Paul’s grounds for recusal would have been
successful, counsel cannot be deficient for failing to seek recusal. See Diaz, 402
F.3d at 1142; Bolender, 16 F.3d at 1573. Accordingly, Paul is not entitled to
relief on the claim in Ground Six.
G. Ground Seven
Finally, Paul argues that the cumulative effect of counsel’s alleged errors
prejudiced him. Petition at 52-53. However, where all individual claims are
meritless, a claim of cumulative error is also without merit. Morris v. Sec’y,
Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). As explained above, each

of Paul’s claims of deficient performance fail; therefore, his claim of cumulative
error likewise fails. Relief on the claim in Ground Seven is due to be denied.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)

If Paul 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, Paul “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 Petition (Doc. 1) is DENIED, and this action is DISMISSED
WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition
and dismissing this case with prejudice.
3. If Paul appeals the denial of the 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 25th day of May,
2021.

MARCIA MORALES HOWARD
United States District Judge

Jax-8
C: Jon David Paul #J40337
Counsel of record

42

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107595. Public record. Not legal advice.