Anderson v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CHRISTOPHER ANDERSON,

Petitioner,

v. Case No. 3:18-cv-648-MMH-JRK

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Christopher Anderson, an inmate of the Florida penal system,

initiated this action on March 14, 2018,1 by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 He filed an Amended

Petition (Amended Petition; Doc. 4) on June 18, 2018. In the Amended Petition,

Anderson challenges a 2014 state court (Duval County, Florida) judgment of

conviction for first degree murder and possession of a firearm by a convicted

felon on one ground. Respondents have submitted a memorandum in

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

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

the document page numbers assigned by the Court’s electronic docketing

system.

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

Cause (Response; Doc. 11). They also submitted exhibits. See Docs. 11-1

through 11-11. Anderson filed a brief in reply. See Reply to State’s Answer in

Response to Order to Show Cause (Reply; Doc. 20). This action is ripe for

review.

II. Relevant Procedural History

On July 2, 2013, the State of Florida charged Anderson with first degree

murder (count one) and possession of a firearm by a convicted felon (count two)

in case number 16-2013-CF-004703-AXXX-MA. See Doc. 11-1 at 37-38,

Indictment. At the conclusion of a trial on December 12, 2013, a jury found

Anderson guilty, as charged. See Docs. 11-1 at 90-92, Verdict; 11-2 through 11-

3, Transcripts of the Trial Proceedings (Tr.), at 862-63, 884.3 On January 17,

2014, the circuit court sentenced Anderson to a term of life imprisonment with

a forty-two-year mandatory minimum term for count one and a fifteen-year

term of imprisonment with a three-year mandatory minimum term for count

two, to run concurrently with the sentence imposed for count one. Doc. 11-1 at

184-92, Judgment; 234-74, Transcript of the Sentencing Hearing.

3 The Court will cite the page number in the upper-righthand corner of

the transcript.

On direct appeal, Anderson, with the benefit of counsel, filed an initial

brief, arguing that the trial court fundamentally erred when it gave an

incomplete jury instruction on self-defense pursuant to Florida Statutes

section 776.012(1) (ground one), and erred when it gave, over Anderson’s

objection, the standard jury instruction on provocation by an initial aggressor

when there was no evidence that Anderson was an initial aggressor during the

shooting incident (ground two). See Doc. 11-4. The State filed an answer brief,

see Doc. 11-5, and Anderson filed a counseled reply brief, see Doc. 11-6. On

December 17, 2014, the appellate court (First DCA) affirmed Anderson’s

conviction and sentence per curiam without issuing a written opinion, and

issued the mandate on January 5, 2015. See Doc. 11-7.

Anderson filed a pro se motion for postconviction relief pursuant to

Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motion) on May 30, 2015.

See Doc. 11-8 at 5-17. In his request for postconviction relief, Anderson

asserted that his trial counsel was ineffective because she: failed to adequately

advise him about the benefits of entering an open plea to second degree

murder, and misadvised him about the justifiable use of deadly force defense

(ground one), see id. at 7-11, and also failed to request a heat-of-passion jury

instruction (ground two), see id. at 11-14. Additionally, as ground three, he

argued that the cumulative effect of counsel’s errors deprived him of a fair trial.

See id. at 14. On October 27, 2014, the circuit court denied Anderson’s Rule

3.850 motion. See id. at 112-21. The First DCA affirmed the circuit court’s

denial of Anderson’s Rule 3.850 motion per curiam without issuing a written

opinion on June 5, 2017, and issued the mandate on July 5, 2017. See id. at

Doc. 11-11.

III. One-Year Limitations Period

This action 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). “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 [Anderson’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). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.

34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of

final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”

Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation

marks omitted)).

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

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

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

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

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

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

unaccompanied by an explanation, the United States Supreme Court has

instructed:

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

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

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

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

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

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

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

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

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

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

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

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

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

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

§ 2254 as follows:

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

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

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

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

“contrary to” clause and an “unreasonable application”

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

“if the state court arrives at a conclusion opposite to

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

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

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

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies

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

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

claims of state courts’ erroneous factual

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

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

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

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

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

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

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

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

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

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

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

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

determination is not unreasonable merely because the

federal habeas court would have reached a different

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

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

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

4 The Eleventh Circuit has described the interaction between §

2254(d)(2) and § 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821

F.3d 1270, 1286 n.3 (11th Cir. 2016).

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

Richter, 562 U.S. at 102. A district court’s obligation is “to train its attention”

on the legal and factual basis for the state court’s ruling, not to “flyspeck the

state court order or grade it.” Meders v. Warden, Ga. Diagnostic Prison, 911

F.3d 1335, 1349 (11th Cir. 2019) (citing Wilson, 138 S. Ct. at 1191-92), cert.

denied, 140 S. Ct. 394 (2019). Thus, to the extent that a petitioner’s claims

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

under 28 U.S.C. § 2254(d).

B. Ineffective Assistance of Trial

“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.

Additionally, the United States Supreme Court has long recognized that

Strickland’s two-part inquiry applies to ineffective-assistance-of-counsel

claims arising out of the plea process. See Hill v. Lockhart, 474 U.S. 52, 57

(1985). In companion decisions in Missouri v. Frye, 566 U.S. 134 (2012), and

Lafler v. Cooper, 566 U.S. 156 (2012), the Supreme Court clarified that the

Sixth Amendment right to the effective assistance of counsel extends

specifically “to the negotiation and consideration of plea offers that lapse or are

rejected.” In re Perez, 682 F.3d 930, 932 (11th Cir. 2012) (per curiam) (footnote

omitted). The Court articulated a four-part test to prove prejudice in the

context of a foregone guilty plea. Lafler, 566 U.S. at 164; see Frye, 566 U.S. at

147.

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, 562 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, 562 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

Anderson asserts that his trial counsel (Assistant Public Defender

Melina Buncome) was ineffective because she misadvised him about the

justifiable use of deadly force defense during the plea negotiations. See

Amended Petition at 3-5. He states that he rejected the State’s offer of an open

plea to second degree murder based on counsel’s misadvice, and instead

proceeded to a trial where the jury found him guilty of first degree murder, and

the court sentenced him to life imprisonment. See id. at 4. He maintains that

counsel failed to sufficiently evaluate the facts, advise him about the initial

aggressor exception to the justifiable use of deadly force defense, and explain

the likelihood of a conviction if he proceeded to trial. See id. According to

Anderson, he would have accepted the State’s plea offer if counsel had properly

advised him, and the court “more than likely” would have imposed a forty-two-

year term of incarceration. Id.

Anderson raised a similar ineffectiveness claim in his Rule 3.850 motion.

See Doc. 11-8 at 7-11. The postconviction court denied relief on this claim,

explaining in pertinent part:

In Ground One, Defendant contends counsel was

ineffective for failing to strongly advise Defendant to

accept the State’s offer to enter an open plea to second

degree murder. Defendant states counsel informed

him entering an open plea was “worth considering.”[5]

5 See Doc. 11-8 at 7-8.

However, Defendant claims counsel should have been

more adamant in advising him to enter an open plea[].

According to Defendant, counsel should have explicitly

recommended or coaxed Defendant into entering an

open plea due to the facts of the case and eyewitness

evidence against him. Furthermore, Defendant alleges

counsel misadvised him about the applicability of the

justifiable use of deadly force defense. Defendant

claims counsel failed to inform him an initial aggressor

is precluded from asserting self-defense. The evidence

presented at trial allegedly demonstrated Defendant

did not exhaust every reasonable means to escape the

danger. Therefore, the defense of justifiable use of

deadly force was inapplicable, and, thus, his counsel

should have advised him to enter an open plea. But for

this alleged lack of advice, Defendant contends he

would not have proceeded to trial and would have

entered an open plea to second degree murder.

Where a defendant alleges ineffective assistance

of counsel for failure to adequately convey a plea offer,

the defendant must show a reasonable probability the

end result of the criminal process would have been

more favorable by reason of a plea to a lesser charge or

a sentence of less prison time. Alcorn v. State, 121 So.

3d 419, 430 (Fla. 2013). Specifically, to establish

prejudice as required by Strickland,

the defendant must allege and prove a

reasonable probability, defined as a

probability sufficient to undermine

confidence in the outcome, that (1) he or

she would have accepted the offer had

counsel advised the defendant correctly,

(2) the prosecutor would not have

withdrawn the offer, (3) the court would

have accepted the offer, and (4) the

conviction or sentence, or both, under the

offer’s terms would have been less severe

than under the judgment and sentence

that in fact were imposed.

Alcorn, 121 So. 3d at 430. Here, Defendant does not

assert counsel never advised him of the State’s offer to

enter an open plea to second degree murder. Instead,

Defendant maintains counsel should have been more

persuasive in advising Defendant to accept the offer

based on the evidence against him. The Court finds the

record, however, demonstrates counsel did thoroughly

review the plea offer with Defendant and he made a

knowing decision to reject the offer. On August 21,

2013, the Court held a Nelson[6] hearing. (Ex. D.)[7]

During the Court’s inquiry, Defendant, after being

placed under oath, complained that counsel attempted

to force him to accept a plea deal, an accusation that

entirely contradicts his current claim. (Ex. D at 4-5.)

In response to Defendant’s assertions, counsel

explained [that] the State presented Defendant with

an offer to plea[d] to second degree murder and in

exchange the State would not indict Defendant on first

degree murder. (Ex. D at 11.) Counsel stated she

advised Defendant of every aspect of his case and

provided him with all discovery. (Ex. D at 11-13.)

According to counsel, Defendant made an informed

decision not to accept the State’s offer and declined to

plea[d] guilty to second degree murder. (Ex. D at 11.)

Defendant’s unwillingness to accept the State’s

offer is further exemplified by Defendant’s subsequent

offer to the State. Notably, on December 9, 2013, prior

6 In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), the Fourth

District Court of Appeal held that if an indigent defendant expresses a desire

to discharge court-appointed counsel because of counsel’s ineffectiveness, the

trial court must hold a hearing to determine whether there is reasonable cause

to believe that the court-appointed counsel is not rendering effective assistance

to the defendant.

7 See Doc. 11-8 at 140-57.

to jury selection, counsel advised the Court that

Defendant conveyed a plea offer to the State. (Ex. E at

13.)[8] Specifically, Defendant offered to plea[d] guilty

to manslaughter in return for a fifteen-year term of

incarceration, followed by ten years of probation. (Ex.

E at 13.) The State acknowledged and rejected the

offer. (Ex. E at 13.)

The record also refutes Defendant’s claim that

counsel, in conveying the plea offer, failed to advise

Defendant the justifiable use of deadly force defense

was irrelevant. Here, Defendant contends this defense

was inapplicable because there was evidence

Defendant was the initial aggressor. On direct appeal,

however, Defendant claimed the Court erred in giving

the justifiable use of force instruction because there

was no evidence Defendant was the initial

aggressor.[9] (Ex. F at 19.)[10]

At trial, the jury was instructed on two theories

of justifiable use of deadly force. (Ex. G at 4-5, 13-14.)

Specifically, the instructions followed 776.012[,]

Florida Statutes (2013), which is justifiable use of

deadly force when a defendant is not the initial

aggressor, and section 776.041, Florida Statutes,

(2013), which is justifiable use of deadly force when

defendant is the initial aggressor. (G at 13-14.)

As detailed in the Attorney General’s [Answer]

Brief on direct appeal, counsel and the State presented

conflicting evidence at trial regarding who was the

initial aggressor. (Ex. H at 12.)[11] Counsel argued the

victim was the initial aggressor, calling Artiesha

8 See Doc. 11-8 at 162.

9 See Docs. 11-4 through 11-6 (direct appeal briefs).

10 See Doc. 11-9 at 119.

11 See Doc. 11-5 at 18.

Anderson (A.A.) [(Defendant’s sister)] as a witness,

who testified she saw the victim holding Defendant by

his neck. (Ex. E at 578-81.)[12] A.A. testified that when

Defendant returned to the party, the victim and Alvin

Morris rushed him and continued pushing him and

calling [him] profane names and that is the point when

she first heard shots. (Ex.[]E at 587-89.) Vanessa

Anderson (V.A.) [(Defendant’s mother)] testified she

was trying to prevent the other men from beating up

Defendant. (Ex. E at 606.) [V.A.] stated that when she

came outside, she observed Alvin Morris pushing and

shoving Defendant. (Ex. E at 604.) [V.A.] said it was at

that point that ‘all hell broke loose’ and she heard

shots fired. (Ex. E at 605.) Finally, Defendant testified

the victim grabbed him by the throat and was choking

him because he did not want to talk to the victim. (Ex.

E at 656.) Defendant stated his sister broke up the

confrontation and he left the party. (Ex. E at 657-658.)

When Defendant returned to the party, Alvin Morris

met him at the gate and was pushing him, then, the

victim threw down his cup and rushed toward

defendant. (Ex. E at 658-60.) Defendant identified

photos of the injuries he sustained from the victim and

others that night. (Ex. E [at] 662-64.)

The State, on the other hand, presented

evidence Defendant was the initial aggressor[.]

Belinda Jones [(the victim’s fiancé)] testified

Defendant bumped into the victim and the victim

responded by pushing Defendant by the neck. (Ex. E

at 304.) Ms. Jones testified Defendant threatened to

kill everyone at the party. (Ex. E at 302-[]04.) Ms.

Jones further testified, upon Defendant’s return to the

party he pulled up in a vehicle very fast and tried to

run toward the victim. (Ex. E at 307.) Ms. Jones stated

others at the party tried to hold Defendant to prevent

him from running up to the victim. (Ex. E at 306-07.)

Alvin Morris testified that when Defendant returned

12 See Tr. at 581.

to the party and after observing the victim was still

there, Defendant went to his car and grabbed a gun.

(Ex. E at 340-41.) Mr. Morris testified that after

retrieving the gun from the vehicle, Defendant walked

straight to the victim and shot him twice. (Ex. E at

342.) Herman Neeley testified that as Defendant left

the party he threatened the victim. (Ex. E at 373.) Mr.

Neeley stated that when Defendant returned to the

party he grabbed a gun from his car, ran into the yard,

and shot the victim. (Ex. E at 373-77.)

While Defendant’s claim on direct appeal is

slightly different than that raised here, the First

District Court of Appeal’s rejection of Defendant’s

claim on direct appeal shows the evidence at trial

warranted the instructions on justifiable use of deadly

force and, in turn, proved the assertions of such a

defense was supported by the evidence. As such[,]

Defendant’s claim that counsel should have advised

Defendant this defense was not applicable is wholly

without merit.

Further, there is ample evidence Defendant

understood the justifiable use of deadly force defense

and specifically consented and agreed to counsel’s

presentation of the defense. Indeed, prior to opening

statements, Defendant explained to the Court he

reviewed the statutes and elected to move forward

with self-defense rather than the stand your ground

defense. (Ex. E at 237.) The Court asked Defendant if

he discussed this decision with counsel, to which

Defendant responded, “yes . . . .” (Ex. E at 236.)

Specifically, Defendant stated he wanted to proceed

with [Florida Statutes] section 776.012 instruction,

“because I was reading and it say[s] . . . you don’t have

to retreat if you’re stopping the commission of a

forcible felony . . . .” (Ex. E at 235-37.) Again, the Court

asked Defendant if he wanted to proceed under section

776.012 and if he agreed with that strategy, to which

Defendant replied, “Yes Ma’[a]m[]. That is what I

want.” (Ex. E at 246.)

The Court finds the record confirms counsel did

adequately advise Defendant of plea opportunities,

which Defendant rejected. Counsel advised Defendant

of all aspects of his case, provided Defendant with

discovery and he ultimately made the informed

decision not to accept the State’s offer. Additionally,

Defendant, under oath, accused his counsel of forcing

him to enter a plea, the very thing he now alleges

counsel failed to do. Furthermore, prior to trial,

Defendant made an offer to the State to plea to

manslaughter. This offer demonstrates Defendant,

being fully aware of the evidence, was only willing to

plea[d] to manslaughter and would not have accepted

the offer of second degree murder. Finally, contrary to

Defendant’s allegations, counsel never misadvised

Defendant about the applicability of the justifiable use

of deadly force defense. The defense was applicable to

Defendant’s case and supported by the evidence

counsel presented at trial; though, this defense was

ultimately rejected by the jury. As such, the Court

finds Defendant failed to satisfy the first prong of

Alcorn and cannot show that but for counsel’s alleged

misadvice, he would have accepted the State’s plea

offer. Ground one is denied.

Doc. 11-8 at 113-18 (footnotes omitted). The First DCA affirmed the

postconviction court’s denial of relief without issuing a written opinion. See

Doc. 11-11 at 2.

To the extent that the appellate court decided the claim on the merits,13

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

13 In looking through the appellate court’s per curiam affirmance to the

postconviction court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1192.

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 the 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, Anderson is not entitled to

relief on the basis of this ineffectiveness claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, the claim is without merit. A defendant has the right

to effective assistance of counsel when considering whether to accept a plea

offer. See Lafler, 566 U.S. 168 (addressing counsel’s performance in advising

defendant to reject a plea offer and proceed to trial); Frye, 566 U.S. 134

(addressing counsel’s failure to communicate to defendant the prosecutor’s

written plea offer before it expired). In order to establish that a failure to

adequately advise a defendant about a plea offer was prejudicial, a petitioner

must demonstrate that (1) he “would have accepted the plea”; (2) “the

prosecution would not have withdrawn it in light of intervening

circumstances”; (3) “the court would have accepted its terms”; and (4) “the

conviction or sentence, or both, under the offer’s terms would have been less

severe than under the judgment and sentence that in fact were imposed.”

Lafler, 566 U.S. at 164; see Frye, 566 U.S. at 147; United States v. Smith, 983

F.3d 1213, 1221-22 (11th Cir. 2020); Carmichael v. United States, 966 F.3d

1250, 1259 (11th Cir. 2020).

A chronology of relevant facts related to the issue follows. In August

2013, Anderson asked the circuit court to remove his attorney (Melina

Buncome) and replace her with another attorney from the Public Defender’s

Office. See Doc. 11-1 at 54. At an August 21, 2013 Nelson hearing on the

motion, Anderson, under oath, stated that Buncome advised him “to plead out”

to second degree murder instead of “looking at [his] side of the story.” Id. at

216-17, 225. With Anderson present at a side-bar conference, Buncome recalled

what had transpired when she discussed the State’s plea offer with Anderson:

Mr. Anderson has made several references to me

wanting to make him plea. I did not, I have never

encouraged him to plea. I said, look, the state attorney

said – presented me with the option to Mr. Anderson

that if he wanted to plea to a second degree murder

they would not indict him, but he has to make that

decision. I then went over to Mr. Anderson, I

explained to him that what the State is saying is

that if he wants to go ahead and plead to the

Court on the second degree murder then they

would not proceed to an indictment.[14] At that

point he made the informed decision not to

plea[d] and decided he wanted to go forward

with this case.

14 See Docs. 11-1 at 2 (state-court docket); 33, Information (charging

Anderson with second degree murder and possession of a firearm by a

convicted felon), filed June 7, 2013; 37, Indictment (charging Anderson with

first degree murder and possession of a firearm by a convicted felon), filed July

2, 2013.

Now, he indicated that I have not explained

anything to him. We have gone over everything. I have

gone over ever – in anticipating him saying that, I

have had other colleagues go over, to be present while

I have gone through every aspect of his case with him.

He proceeds to – he thinks because I tell him what the

facts are that I am not on his side. . . .

Id. at 223-24 (emphasis added). The court found that Anderson had not

presented facts sufficient to show that Buncome was ineffective, and therefore,

denied Anderson’s request to remove her as his attorney. See id. at 228.

Additionally, on December 9, 2013, prior to jury selection, Buncome advised

the court that the State had rejected Anderson’s counteroffer to plead guilty to

manslaughter in return for a fifteen-year term of incarceration followed by ten

years of probation. See Doc. 11-8 at 162. The prosecutor acknowledged that he

had received Anderson’s counteroffer at a final pretrial hearing, but rejected

it. See id.

Notably, Anderson minimized his guilt throughout the proceedings. The

record reflects his desire to proceed to trial (to testify about his version of the

facts that he opined amounted to self-defense) or enter a plea to manslaughter

in exchange for a term of fifteen years of incarceration. At trial, the State

presented eyewitness testimony that Anderson had provoked the victim and

was the initial aggressor. Anderson testified that he defended himself when

the victim rushed toward him, see Tr. 658-60, 691, and his mother and sister

corroborated his version of the facts, see id. at 586-87, 609-11, which created a

factual issue (related to whether the force Anderson used was justified) for the

jury to decide. As such, the evidence at trial warranted jury instructions on

self-defense and the justifiable use of deadly force. See id. at 833-36.

There are strong indications in the record that Anderson was not willing

to enter an open plea to second degree murder, especially during an early stage

of the proceedings when discovery, including the depositions of eyewitnesses,

was ongoing. See Doc. 11-1 at 218-20. Anderson’s assertion that he would have

accepted an open plea to second degree murder is undermined by his testimony

at the Nelson hearing as well as his counteroffer to enter a plea to

manslaughter in exchange for a fifteen-year term of incarceration.

Under the Lafler/Frye first prong, Anderson fails to show a reasonable

probability that, but for counsel’s misadvice, he would have accepted the

State’s open plea offer to second degree murder at a time when the facts

detailing what had transpired that night were still unraveling. See Lafler, 566

U.S. at 164; Frye, 566 U.S. at 147. His conclusory assertion that he would have

accepted the State’s open plea offer to second degree murder, without more, is

insufficient to satisfy the first prong of the prejudice test. Rosin v. United

States, 786 F.3d 873, 879 (11th Cir. 2015) (stressing that the record evidence

that the defendant “had absolutely no interest in” pleading guilty contradicted

his later claim that he would have done so); see also Diaz v. United States, 930

F.2d 832, 835 (11th Cir. 1991).

Accordingly, even assuming deficient performance by counsel,

Anderson’s ineffectiveness claim is without merit since he has not shown the

required Lafler/Frye resulting prejudice. As such, he is not entitled to federal

habeas relief.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Anderson 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, Anderson “must demonstrate

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

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

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

issues presented were ‘adequate to deserve encouragement to proceed

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

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

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

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

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

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

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

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

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

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

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

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 4) is DENIED, and this action is

DISMISSED WITH PREJUDICE.

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

Petition and dismissing this case with prejudice.

3. If Anderson appeals the denial of the Amended Petition, the Court

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

certificate of appealability is not warranted, the Clerk shall terminate from the

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

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

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

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 19th day of July,

2021.

MARCIA MORALES HOWARD

United States District Judge

Jax-1 7/19

C:

Christopher Anderson, FDOC #148425

Counsel of Record

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