# Morales v. Secretary, Department of Corrections (Hillsborough)

> District Court, M.D. Florida · June 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10107693

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107693

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BRIAN M. MORALES,

Petitioner,

v. Case No. 8:18-cv-2108-MSS-JSS

SECRETARY, DEPARTMENT
OF CORRECTIONS,

Respondent.
___________________________________/

O R D E R

Morales petitions for the writ of habeas corpus under 28 U.S.C. § 2254 and challenges
his state court conviction for unlawful sexual activity with a minor. After reviewing the
petition (Doc. 1) and the response and appendix (Docs. 8 and 8-2), it is ORDERED that the
petition is DENIED.
PROCEDURAL HISTORY
Morales pled guilty to unlawful sexual activity with a minor. He did not have the
benefit of a plea agreement. (Doc. 8-2 at 8–14) The trial court sentenced Morales to 72 months
in prison followed by 24 months of community control and 36 months of sex offender
probation. (Doc. 8-2 at 18, 21–26) The trial court granted Morales’s motion to mitigate his
sentence under Rule 3.800(c), Florida Rules of Criminal Procedure and modified his sentence
to 48 months in prison followed by 24 months of community control and 60 months of sex
offender probation. (Doc. 8-2 at 28–30, 33–34) Morales did not appeal.
Morales moved for post-conviction relief under Rule 3.850, Florida Rules of Criminal
Procedure. (Doc. 8-2 at 36–50) The post-conviction court dismissed the claims as facially
insufficient with leave to file an amended motion. (Doc. 8-2 at 52–56) Morales failed to file
an amended motion, and the post-conviction court denied all claims with prejudice. (Doc. 8-
2 at 90–91) Morales appealed, and the state appellate court affirmed. (Doc. 8-2 at 130–31 and
135)

Also, Morales moved to correct his sentence under Rule 3.800(a), Florida Rules of
Criminal Procedure (Doc. 8-2 at 139–51), which motion the post-conviction court denied.
(Doc. 8-2 at 153–55) Morales appealed, and the state appellate court affirmed. (Doc. 8-2 at
180–81, 187)
Finally, Morales filed a second Rule 3.850 motion. (Doc. 8-2 at 191–99) The
post-conviction court denied the motion, Morales appealed, and the state appellate court
affirmed. (Doc. 8-2 at 206–13, 277, 295) Morales’s timely federal petition followed.
STANDARDS OF REVIEW
AEDPA

Because Morales filed his federal petition after the enactment of the Antiterrorism
and Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S.
320, 327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim —

(1) resulted in a decision that was contrary to,
or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the
United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.

A decision is “contrary to” clearly established federal law “if the state court arrives
at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law
or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A
decision involves an unreasonable application of clearly established federal law “if the state
court identifies the correct governing legal principle from [the U.S. Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at
413. Clearly established federal law refers to the holding of an opinion by the U.S. Supreme
Court at the time of the relevant state court decision. Williams, 529 U.S. at 412.
“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 694
(2002). An unreasonable application is “different from an incorrect one.” Id. Even clear
error is not enough. Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017). A federal petitioner
must show that the state court’s ruling was “so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility of

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Ineffective Assistance of Counsel
Morales asserts ineffective assistance of counsel — a difficult claim to sustain.
Strickland v. Washington, 466 U.S. 668, 687 (1984) explains:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.

“There is no reason for a court . . . to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A] court
deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Strickland, 466 U.S. at 690.
“An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 691. A reasonable probability
is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694.
Strickland cautions that “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at
690–91. A defendant cannot meet his burden by showing that the avenue chosen by counsel
was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). Because the
standards under Strickland and AEDPA are both highly deferential, “when the two apply in
tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105. “Given the double deference due,
it is a ‘rare case in which an ineffective assistance of counsel claim that was denied on the
merits in state court is found to merit relief in a federal habeas proceeding.’” Nance v.
Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (citation omitted).
The state appellate court affirmed in an unexplained decision the post-conviction

court’s order denying Morales’s ineffective assistance of counsel claim. (Doc. 8-2 at 295) A
federal court “‘look[s] through’ the unexplained decision to the last related state-court
decision that does provide a relevant rationale [and] presume[s] that the unexplained
decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
Because the post-conviction court recognized that Strickland governed the claim
(Doc. 8-2 at 207–08), Morales cannot meet the “contrary to” test in Section 2254(d).
Morales instead must show that the state court either unreasonably applied Strickland or
unreasonably determined a fact.
Exhaustion and Procedural Default

A petitioner must exhaust the remedies available in state court before
a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must
(1) alert the state court to the federal nature of his claim and (2) give the state court one full
opportunity to resolve the federal claim by invoking one complete round of the state’s
established appellate review process. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard
v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review
and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A federal court may stay — or dismiss without prejudice — a habeas action to allow
a petitioner to return to state court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005);

Rose v. Lundy, 455 U.S. 509 (1982). If the state court would deny the claim on state
procedural grounds, the federal court instead denies the claim as procedurally barred.
Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1991)).
Also, the failure to comply with a state procedural rule governing the proper

presentation of a claim generally bars review of that claim on federal habeas. Coleman, 501
U.S. at 729. “However, a state court’s rejection of a federal constitutional claim on
procedural grounds will only preclude federal review if the state procedural ruling rests upon
[an] ‘independent and adequate’ state ground.” Judd v. Haley, 250 F.3d 1308, 1313 (11th
Cir. 2001). A state court’s procedural ruling rests on an independent and adequate state
ground if (1) the last state court rendering a judgment in the case clearly and expressly relies
on a state procedural rule to resolve the federal claim without reaching the merits of the
claim, (2) the state court’s decision rests solidly on state law grounds and is not intertwined
with an interpretation of federal law, and (3) the state procedural rule is not applied in an

“arbitrary or unprecedented fashion,” or in a “manifestly unfair” manner. Judd, 250 F.3d at
1313 (citing Card v. Dugger, 911 F.2d 1494, 1516–17 (11th Cir. 1990)).
A petitioner may secure excusal of a procedural default on federal habeas review by
(1) showing cause for the default and actual prejudice from the alleged violation of federal
law or (2) demonstrating a miscarriage of justice. Maples v. Thomas, 565 U.S. 266, 280
(2012); House v. Bell, 547 U.S. 518, 536–37 (2006).
DISCUSSION
Ground One
Morales pled guilty to unlawful sexual activity with a minor in violation of Section

794.05(1), Florida Statutes. (Doc. 1 at 5) He contends that Section 794.05(1) is
unconstitutionally vague as applied to his case and asserts that the trial court violated his due
process rights by accepting his plea and entering the conviction. (Doc. 1 at 5–6) In Morales’s
case, the victim was 17 years, 5 months, and 14 days old at the time of the crime, and Section
794.05(1) prohibits sexual activity by a person 24 years old or older with a person 16 or 17

years old. (Doc. 1 at 6–7) Morales contends that the statute provides inadequate notice that
his conduct was prohibited. (Doc. 1 at 6–7)
The post-conviction court denied the claim as follows (Doc. 8-2 at 208–10) (state court
record citations omitted):
. . . Defendant alleges his conviction violates his rights under the
Sixth and [Fourteenth] Amendments of the United States
Constitution and Section 16 of the Florida Constitution. In
particular, he alleges he was prosecuted under section 794.05(1),
Florida Statutes, which is capricious and arbitrary. He alleges the
statute prohibits a person 24 years of age or older from engaging
in sexual activity with a person 16 or 17 years of age. He alleges
the activity described by the statute is vague and the charging
document follows the language of the vague statute. Defendant
bases his argument on his assertion that the victim was not 16 or
17 years old but was 17 years 5 months and 14 days old. He
alleges that in order for the statute to be constitutional, “the
accused [had to know] that sexual activity with a person 17 years
5 months 14 days old was a crime, as opposed to sexual activity
with a person 16 or 17 years of age as section 794.05(1) asserts.”
He alleges, as a result, section 794.05(1) is so vague, indefinite[,]
and uncertain that it violated his rights under both the United
States Constitution [and] the Florida Constitution.

As support for his argument, Defendant cites to State v. Marcel,
67 So. 3d 1223 (Fla. 3d DCA 2011). Quoting Marcel, Defendant
asserts “[i]f a defendant is 1 day past the 4[-]year eligibility limit
prescribed by section 943.04354 of the Florida State Statute he is
ineligible to petition for relief.” He alleges in his case the victim
was “5 months and 14 days over the 16 to 17 years old limit.”
He asserts, thus, he could not have been convicted as a matter of
law. He contends that the application of overbroad statutes
results in the punishment of innocent conduct and severely
restricts defendants in preparing a defense.
The Court finds [the claim] to be without merit. First,
Defendant’s claim is not cognizable in [a] motion filed pursuant
to Florida Rule of Criminal Procedure 3.850 because it should
have been brought, if at all, on direct appeal. See Fla. R. Crim.
P. 3.850(a) (“This rule does not authorize relief based on grounds
that could have or should have been raised at trial and, if
properly preserved, on direct appeal of the judgment and
sentence.”). Even if the claim was cognizable, the Court finds
Marcel is not applicable. In Marcel, the appellant was seeking
relief under section 943.04354, Florida Statutes, for “so-called
‘Romeo and Juliet offenders.’” Marcel, 67 So. 3d at 1224. Section
943.04354 provides an exception to sex offender registration if
certain criteria are met, including that “the defendant be ‘not
more than [four] years older than the victim of th[e] violation
who was [fourteen] years of age or older but not more than
[seventeen] years of age at the time the person committed the
violation.’” Id. The appellee in Marcel was four years, three
months, and eight days older than the victim at the time of the
crime. Id. He argued that in calculating whether he was more
than four years older than the victim, the months and the days
should not be counted. Id. The appellate court disagreed,
explaining that such a calculation — known as the “birthday
rule” — had only been used in computing age and not in
computing time. Id.

In this case, it appears Defendant is concluding that because the
“birthday rule” was rejected in Marcel, it should also be rejected
here and the victim should be found to be more than 17 years of
age and outside the [parameters] of section 943.04354. This
Court does not agree with Defendant’s conclusion nor does it
find Marcel supports such an argument. As explained by the
Marcel court, it has seen the “birthday rule” applied in calculating
age and, in fact, included [the] following citation in its opinion:
“See State v. Moore, 167 N.C. App. 495, 606 S.E.2d 127 (2004)
(“statutory rape statute encompassing victims ‘who [are]
[thirteen, fourteen, or fifteen] years old’ includes victim who was
fifteen-years and two-days).” Id. As such, the Court find[s] Marcel
does not support Defendant’s argument. Accordingly, for the
above reasons, relief is not warranted . . . .

The Respondent asserts that the claim is procedurally barred. (Doc. 8 at 4–5) The
post-conviction court denied the claim because it was “not cognizable in [a] motion filed
pursuant to Florida Rule of Criminal Procedure 3.850.” (Doc. 8-2 at 209) Morales could have
presented the claim on direct appeal. (Doc. 8-2 at 209) Even though the post-conviction court
also considered the merits of the federal claim, the court clearly and expressly relied on a
state procedural rule to resolve the claim. Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir.
1999) (“‘Through its very definition, the adequate and independent state ground doctrine

requires the federal court to honor a state holding that is a sufficient basis for the state court’s
judgment, even when the state court also relies on federal law.’”) (quoting Harris v. Reed,
489 U.S. 255, 264 n.10 (1989)). Morales could have and should have raised the as-applied
constitutional challenge before his plea1 and on direct appeal. Dubose v. State, 75 So. 3d 383,
384 (Fla. 1st DCA 2011) (“Although claims that a statute is facially unconstitutional can be
raised for the first time on appeal, the same is not true for as-applied challenges.”) (citations
omitted). Fla. R. Crim. P. 3.850(c) (“This rule does not authorize relief based on grounds
that could have or should have been raised at trial and, if properly preserved, on direct
appeal of the judgment and sentence.”). The post-conviction court’s procedural ruling rested

on an “independent and adequate” state law ground, and the claim is procedurally defaulted.
Whiddon v. Dugger, 894 F.2d 1266, 1267 (11th Cir. 1990). Morales shows neither cause and
actual prejudice nor a miscarriage of justice to excuse the procedural default. (Doc. 1 at 8)
Consequently, the claim is procedurally barred from federal review. Thomas v. Att’y Gen.,
992 F.3d 1162, 1184–85 (11th Cir. 2021).
By pleading guilty, Morales waived all non-jurisdictional defects including his
as-applied challenge to the statute of conviction. Ground One is denied. Tollett v. Henderson,
411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court

1 Morales could have pled guilty and reserved the right to raise the issue on appeal. Fla. R.
App. P. 9.140(b)(2)(A)(i).
that he is in fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred prior to
the entry of the guilty plea.”); United States v. Cunningham, 161 F.3d 1343, 1346 (11th Cir.
1998) (“[I]n United States v. Viscome, 144 F.3d 1365, 1370 (11th Cir.), cert denied, 525 U.S. 941,

119 S.Ct. 362, 142 L.Ed.2d 299 (1998), we held that a similar as-applied challenge to the
sufficiency of the government’s evidence on the connection with commerce was
nonjurisdictional, and that a defendant’s guilty plea, therefore, waived the issue on appeal.”);
United States v. Novak, 841 F.3d 721, 727 (7th Cir. 2016) (“While a facial attack on a statute’s
constitutionality is jurisdictional, an as-applied vagueness challenge is not.”) (citation and
quotation marks omitted).
Ground Two
Morales asserts that trial counsel was ineffective for not conveying “the terms of [his]
plea offer.” (Doc. 1 at 9) He contends that trial counsel failed to explain that, if Morales pled

guilty, the trial court would impose community control and sex offender probation. (Doc. 1
at 10) Morales contends that a letter from trial counsel shows that trial counsel conveyed the
terms of the plea offer to Morales’s mother — but not directly to Morales. (Docs. 1 at 10 and
1-1 at 1–3) He asserts that, if trial counsel had competently advised him, he would not have
entered the plea and instead would have exercised his right to a trial. (Doc. 1 at 10)
In his first Rule 3.850 motion, Morales asserted that “Defendant’s Attorney [ ], fail[ed]
to explain all of defendant’s probation stipulations.” (Doc. 8-2 at 43) The post-conviction
court denied the claim as follows (Doc. 8-2 at 54–55) (state court record citations omitted):
. . . Defendant alleges ineffective assistance of counsel due to
counsel’s failure to explain to Defendant all the conditions of
probation. After reviewing the allegations, the court file, and the
record, the Court finds Defendant’s allegations are facially
insufficient as he failed to allege prejudice. In Spera v. State, 971
So. 2d 754 (Fla. 2007), the court held that “in dismissing a first
postconviction motion based on a pleading deficiency, a court
abuses its discretion in failing to allow the defendant at least one
opportunity to correct the deficiency unless it cannot be
corrected.” Id. at 755. As such, [the claim] is dismissed without
prejudice to any right Defendant may have to file within sixty
(60) days a timely, properly sworn, facially sufficient claim. Id.

Morales failed to file an amended motion, and the post-conviction court denied the claim
with prejudice. (Doc. 8-2 at 90–91) Morales appealed (Doc. 8-2 at 130–31) and the state
appellate court affirmed. (Doc. 8-2 at 135)
The post-conviction court’s dismissal of the claim for facial insufficiency is an
adjudication on the merits owed deference under 28 U.S.C. § 2254(d). Boyd v. Comm., Ala.
Dep’t Corrs., 697 F.3d 1320, 1331 (11th Cir. 2012) (quoting Borden v. Allen, 646 F.3d 785,
812–13 (11th Cir. 2011)). “[W]hen a defendant claims that his counsel’s deficient performance
deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by
demonstrating a ‘reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.’” Lee v. United States, 137 S. Ct. 1958,
1965 (2017) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Morales alleged neither in his
first Rule 3.850 motion. (Doc. 8-2 at 42–43) Consequently, the state court did not
unreasonably apply Strickland by denying the claim as facially insufficient.
In his second Rule 3.850 motion2, Morales asserted that “his counsel was ineffective
for failing to convey terms of his plea offer correctly” and “had his counsel conveyed to him
the terms of his plea concerning his community control, and his sex offender probation he

2 Morales placed in the hands of prison officials for mailing his second Rule 3.850 motion six
months after the post-conviction court denied his first Rule 3.850 motion. (Doc. 8-2 at 90, 191)
would not have entered a plea, but would have insisted on a trial.” (Doc. 8-2 at 196–97) The
post-conviction court denied the claim as follows (Doc. 8-2 at 210–12):
. . . Defendant alleges ineffective assistance of counsel for failing
to “correctly convey the terms of Defendant’s plea offer.”
Defendant alleges that if his attorney had “conveyed to him the
terms of his plea conceding his community control and his sex
offender probation, he would not have entered a plea, but would
have insisted on a trial.” Defendant alleges he was prejudiced
“by his counsel[’s] failure to convey the terms of his plea, [and]
had counsel correctly conveyed defendant’s plea offer and the
terms of his plea[,] defendant would have been able to make a
more sound decision as to whether to take the plea or insist[ ] on
a trial.” He attaches to his motion a copy of a letter from his
attorney in which Defendant asserts “counsel conceded to not
conveying the terms of his plea.” Defendant alleges he is over the
age of 18 and counsel should have conveyed “all matters
pertaining to defendant[’s] case to him.”

Defendant cites to Cottle v. State, 733 So. 2d 963 (Fla. 1999),
Young v. State, 608 So. 2d 111 (Fla. 5th DCA 1992), Morales v.
State, 731 So. 2d 91 (Fla. 4th DCA 1999), and White v. State, 731
So. 2d 74 (Fla. 2d DCA 1999), as examples of ineffective
assistance of counsel where an attorney fails to correctly convey
a plea offer and its terms. Defendant alleges that but for counsel’s
errors, the result of the proceedings would be different. He
contends that an evidentiary hearing should be held to determine
whether “counsel failed to convey correctly the terms of the plea
to the defendant.”

The Court finds [the claim] to be without merit. The Court first
notes that Defendant pled open and did not plead guilty pursuant
to a negotiated plea offer. Therefore, counsel could not have
failed to “correctly convey the terms of Defendant’s plea offer”
where Defendant did not accept a plea offer from the State. The
Court next notes that the cases cited by Defendant involve issues
of failure to convey a plea offer resulting in the defendant
proceeding to trial (Young, Cottle), failure to timely convey
acceptance of a plea offer (White), and failure to adequately
convey a plea offer to a defendant [who] did not speak English
(Morales). The Court finds Defendant has not alleged counsel
failed to convey an offer, failed to convey acceptance of an offer,
or failed to ensure Defendant understood an offer had been made
and, instead, has expressly alleged the following: “failure to
correctly convey the terms of Defendant’s plea offer” and “had
his counsel conveyed to him the terms of his plea concerning his
community control, and his sex offender probation he would not have
entered a plea, but would have insisted on a trial.” However,
because Defendant did not accept a plea offer, there were no
terms of a plea offer for counsel to convey.

To the extent Defendant is alleging counsel failed to explain all
of the terms of the probation that could be imposed as a result of
pleading open, the Court finds Defendant raised this issue [in]
his first Motion for Postconviction Relief. Specifically,
Defendant alleged that his attorney failed “to explain all of
defendant’s probation stipulations.” The Court identified this
issue as claim 3(e), found it to be facially insufficient, and
dismissed it without prejudice for Defendant to refile a facially
sufficient claim within 60 days. When Defendant failed to refile
a timely amended claim, the Court denied it with prejudice. The
Court’s denial of the claim was affirmed on appeal on March 8,
2017. Thus, as the issue presented in . . . Defendant’s instant
motion has been previously raised and denied with prejudice, the
Court finds Defendant is barred from presenting the same issue
in a subsequent rule 3.850 motion. Accordingly, for the above
reasons, relief is not warranted . . . .

Morales raised a nearly identical claim in his first Rule 3.850 motion (Doc. 8-2 at 43),
and the post-conviction court dismissed the claim with prejudice. (Doc. 8-2 at 90–91) Because
Morales failed to allege new or different grounds for relief in his second Rule 3.850 motion
and the prior ruling was on the merits, the post-conviction court dismissed the successive
claim as procedurally barred. Fla. R. Crim. P. 3.850(h). The post-conviction court’s
procedural ruling rested on an independent and adequate state law ground, and therefore the
claim is procedurally defaulted. Whiddon, 894 F.2d at 1267. Even though the post-conviction
court considered the merits of the federal claim in the alternative, the court clearly and
expressly relied on a state procedural rule to resolve the claim. Bailey, 172 F.3d at 1305.
Morales shows neither cause and actual prejudice nor a miscarriage of justice to excuse the
procedural default. (Doc. 1 at 9, 12) Consequently, the claim is procedurally barred from
federal review. Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008).
Even so, before Morales pled guilty both Morales and trial counsel signed a form
memorializing the plea. (Doc. 8-2 at 228–31) The form advised Morales that he was pleading
guilty to unlawful sexual activity with a minor and faced a maximum penalty of 15 years in
prison. (Doc. 8-2 at 228) Fla. Stat. §§ 794.05(1) and 775.082(3)(d). Morales acknowledged

that he “underst[ood] there [was] no agreement as to what sentence [he would] receive, and
the Court [could] sentence [him] within its discretion.” (Doc. 8-2 at 228) Morales further
acknowledged that he understood that “no one, including [his] attorney, [could] accurately
predict the actual time [he would] serve on a sentence and [he] may be required to serve the
entire sentence.” (Doc. 8-2 at 11)3
Standard conditions apply to all probationers or community controlees who are placed
on supervision for a sex crime, including a crime under chapter 794, Florida Statutes. Fla.
Stat. § 948.30(1). A list of those standard conditions was attached to the form that Morales
signed. (Doc. 8-2 at 12–14) On the form, Morales acknowledged: “I have reviewed the
standard terms of supervision and I understand I must follow them as well as any special

conditions the court thinks are appropriate.” (Doc. 8-2 at 11) The standard conditions
attached to the form included registration as a sex offender under Fla. Stat. § 943.0435,
consideration for involuntary commitment, and prohibitions or limitations on accessing the
internet, viewing and possessing pornography, and visiting and living near a school, child care
facility, park, or playground. (Doc. 8-2 at 12, 14) Because Morales knew before he pled guilty
both the statutory maximum sentence of the crime and the standard conditions of probation

3 The trial court sentenced Morales to 48 months in prison followed by 24 months of
community control and 60 months of sex offender probation. (Doc. 8-2 at 28–30, 33–34) Under
Florida law, the trial court imposed the terms of community control and sex offender probation as an
alternative to prison — not in addition to the prison sentence. Fla. Stat. § 948.011; Jackson v. State, 276
So. 3d 972, 973 (Fla. 5th DCA 2019).
that the trial court could impose, Morales knowingly pled guilty and the record refutes the
claim.
Morales contends that trial counsel conceded he had not conveyed “the terms of his
plea in a letter to [Morales] dated October 14, 2015 which was Exhibit 1 [to] [Morales’s] post-

conviction motion.” (Doc. 1 at 9) In the letter, trial counsel discussed communications
between counsel and Morales’s mother after Morales pled guilty. Morales asked questions
about the probationary portion of his sentence after the trial court mitigated his sentence.
(Doc. 1-1 at 2) Trial counsel could not directly contact Morales by telephone because Morales
had transferred to prison to serve his sentence. (Doc. 1-1 at 2) Trial counsel instead spoke with
Morales’s mother who assured trial counsel that she relayed to Morales the answers to his
questions. (Doc. 1-1 at 2)
In the letter, trial counsel neither concedes that he failed to convey the “terms of the
plea” to Morales (Doc. 1 at 9) nor concedes that he failed to answer Morales’s questions
before the guilty plea. Trial counsel answered questions that Morales asked after he pled

guilty. Before he pled guilty Morales signed the form which advised him of the exposure that
he faced by pleading guilty without an agreement, including the mandatory terms of
supervision. (Doc. 8-2 at 8–14) If Morales had any questions concerning the terms of
supervision that would have impacted whether he wanted to plead guilty, Morales should
have asked those questions before pleading guilty.
Morales identifies no additional terms that trial counsel failed to convey before the
plea and no other deficient advice by trial counsel concerning those terms. Because the letter
does not support Morales’s claim and the form signed by Morales before the guilty plea refutes
his claim, the state court did not unreasonably apply Strickland. Brady v. United States, 397 U.S.
742, 748 (1970) (“Waivers of constitutional rights not only must be voluntary but must be
knowing, intelligent acts done with sufficient awareness of the relevant circumstances and
likely consequences.”); United States v. Brown, 586 F.3d 1342, 1346 (11th Cir. 2009) (“The
consequences of a guilty plea include ‘any maximum possible penalty, including
imprisonment, fine, and term of supervised release[.]’”) (quoting Fed. R. Crim. P.
11(b)(1)(H)); Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir. 1991) (“A reviewing federal court
may set aside a state court guilty plea only for failure to satisfy due process: ‘If a defendant
understands the charges against him, understands the consequences of a guilty plea, and
voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea . . . will be
upheld on federal review.’”). Ground Two is denied.
Accordingly, itis ORDERED that Morales’s petition is DENIED because all claims
in the petition are both procedurally barred and without merit. The Clerk is DIRECTED to
enter a judgment against Morales and CLOSE this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO PROCEED IN FORMA PAUPERIS
Because Morales neither makes a substantial showing of the denial of a constitutional
right nor demonstrates that reasonable jurists would find debatable both the merits of the
underlying claims and the procedural issues that he seeks to raise, a certificate of
appealability and leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2).
Slack v. McDaniel, 529 U.S. 473, 478 (2000).
DONE AND ORDERED in Tampa, Florida on June 10, 2021.

UNITED STATES DISTRICT JUDGE

16

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107693. Public record. Not legal advice.