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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KAVON MARQUISE GREEN,

Petitioner,

v. Case No. 3:19-cv-484-MMH-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Kavon Marquise Green, an inmate of the Florida penal

system, initiated this action on April 24, 2019,1 by filing a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 In the Petition,

Green challenges a 2013 state court (Duval County, Florida) judgment of

conviction for attempted second degree murder and possession of a firearm by

a juvenile delinquent found to have committed a felony act. He raises five

claims. See Petition at 5-12. 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 Petition. See Response (Doc. 6). They also submitted exhibits.

See Docs. 6-1 through 6-3. Green filed a brief in reply. See Reply (Doc. 9). This

action is ripe for review.

II. Relevant Procedural History

On January 10, 2012, the State of Florida charged Green with attempted

second degree murder and possession of a firearm by a juvenile delinquent

found to have committed a felony act in Duval County case number 2012-CF-

275. See Doc. 6-1 at 32. Green entered a guilty plea to both charges on July 24,

2012. See id. at 72-73; 118-31, Transcript of the Plea Proceeding. On October

18, 2013, the court sentenced Green to a term of imprisonment of twenty-five

years for count one and a term of imprisonment of fifteen years for count two,

to run concurrent with the sentence on count one. See Docs. 6-1 at 87-94,

Judgment; 6-1 at 132-54, Transcript of Sentencing Hearing (Sentencing Tr.);

6-2 at 1-36, Sentencing Tr.

On direct appeal, Green, with the benefit of counsel, filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), see Doc. 6-2 at 39-48,

and a motion to allow Green to file a pro se brief, see id. at 50-51. The First

District Court of Appeal (First DCA) granted Green permission to file a pro se

brief. See id. at 53. According to the state-court docket, Green did not file a pro

se brief. See onlinedocketsdca.flcourts.org, Kavon Marquise Green v. State of

Florida, 1D13-5537 (Fla. 1st DCA). On March 19, 2014, the First DCA affirmed

Green’s conviction and sentence per curiam without issuing a written opinion,

see Doc. 6-2 at 55, and issued the mandate on April 15, 2014, see id. at 57.

Green filed a pro se motion for postconviction relief pursuant to Florida

Rule of Criminal Procedure 3.850 on September 23, 2014. See id. at 62-77. In

his Rule 3.850 motion, Green asserted that his trial counsel was ineffective

because he: affirmatively misadvised Green that the motion to suppress had

been denied before he entered his guilty plea (ground one), see id. at 65-68;

failed to advise him that if the court chose not to sentence him as a youthful

offender, the minimum sentence he could receive was a twenty-five year term

of imprisonment (ground two), see id. at 68-70; and failed to ensure that Green

was competent to proceed before counsel permitted Green to enter a guilty plea

(ground three), see id. at 70-75. Green filed a motion to hear and rule on

November 18, 2015, see id. at 78; a notice of pending action on February 14,

2017, see id. at 81; and a petition for writ of mandamus on March 10, 2017, see

Doc. 6-3 at 135. On May 16, 2017, the First DCA denied the petition for writ of

mandamus and encouraged the circuit court “to continue its efforts to

expeditiously dispose” of the Rule 3.850 motion. Id. at 165. During the

pendency of the petition for writ of mandamus, the postconviction court

directed the State to respond to grounds one and three. See Doc. 6-2 at 83-85.

The State responded. See id. at 93-101. On June 29, 2017, the court denied the

Rule 3.850 motion. See id. at 239-45. On appeal, Green filed a pro se brief, see

Doc. 6-3 at 103-18, and the State filed a notice that it did not intend to file an

answer brief, see id. at 120-21. On July 27, 2018, the First DCA affirmed the

court’s denial of postconviction relief per curiam, see id. at 123, and denied

Green’s motion for rehearing on September 21, 2018, see id. at 131. The court

issued the mandate on October 15, 2018. See id. at 133.

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 [Green’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.’”[3] 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)).

3 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); see Teasley v.

Warden, Macon State Prison, 978 F.3d 1349, 1356 n.1 (11th Cir. 2020). 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. 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,[4]

supra, at 747-748, 111 S. Ct. 2546; Sykes,[5] 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. 307, 316, 131 S. Ct. 1120,

1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,

558 U.S. 53, 60-61, 130 S. Ct. 612, 617-618, 175

L.Ed.2d 417 (2009). The doctrine barring procedurally

defaulted claims from being heard is not without

exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and

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

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

prejudice from a violation of federal law. See Coleman,

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

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

excused under certain circumstances. Notwithstanding that a claim has been

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

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

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

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

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).[6]

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

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

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

[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. 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). 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, 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

A. Ground One

As ground one, Green asserts that counsel (Assistant Public Defender

Todd Niemczyk, Florida Bar #14581) was ineffective because he misadvised

Green about the court’s disposition of the motion to suppress. See Petition at

5. He states:

Defense counsel advised Petitioner that the

suppression motion had been denied and that he had

no further recourse on this motion. This was clearly

misadvice as defense counsel never obtain[ed] a ruling

but rather withdrew the motion on his own accord. It

was with this misadvice regarding the suppression

motion that the Petitioner entered his guilty plea.

Id. Respondents argue that Green did not properly exhaust this ineffectiveness

claim in the state courts, and therefore the claim is procedurally barred. See

Response at 8-12. Green asserts that he did sufficiently exhaust the claim, see

Reply at 1-4, and this Court agrees.

Green raised this ineffectiveness claim in his Rule 3.850 motion. See Doc.

6-2 at 65-68. The postconviction court ultimately denied the Rule 3.850 motion

with respect to the claim, stating in pertinent part:

Defendant contends counsel misadvised him

that the motion to suppress filed on his behalf was

denied, rather than withdrawn. According to

Defendant, upon meeting with counsel after the

motion was withdrawn, counsel told him the Court

denied the motion and there was no further recourse

on the motion. Based on counsel’s representation,

Defendant decided to enter an open plea to the Court.

However, Defendant claims had he known of the

withdrawal or been present at the hearing where

counsel withdrew the motion, he would have insisted

counsel follow through on the motion and would have

proceeded to trial. Furthermore, had the motion been

denied, Defendant would have reserved the right to

appeal the denial as being dispositive.

The Court notes that “[a]n allegation that trial

counsel provided ineffective assistance by failing to file

a motion to suppress is a legally sufficient claim, which

is not waived by entry of a plea.” Spencer v. State, 889

So. 2d 868, 870 (Fla. 2d DCA 2004). A defendant is not

required to allege in a rule 3.850 motion that the

motion to request would have been granted; “[i]nstead,

‘to show prejudice in a plea bargain case, [the

defendant] must show only that without the misadvice

of counsel, there was a reasonable probability he

would not have pleaded guilty and would have chosen

to go to trial.’” Deck v. State, 985 So. 2d 1234, 1238

(Fla. 2d DCA 2008) (quoting Brown v. State, 967 So.

2d 440, 443 (Fla. 4th DCA 2007)).

Reasonable strategic or tactical decisions by

counsel do not constitute ineffective assistance of

counsel. Thompson v. State, 174 So. 3d 453, 456 (Fla.

1st DCA 2015). While generally an evidentiary

hearing is needed to determine whether a counsel’s

decisions were the product of strategy, when it is

obvious from the record that an attorney’s decision[]

was strategic in nature, an evidentiary hearing is not

required. State v. Williams, 797 So. 2d 1235, 1239 (Fla.

2001) (quoting McNeal v. Wainwright, 722 F.2d 674,

676 (11th Cir. 1984)).

The record reflects counsel filed a Motion to

Suppress Statements, Admissions and Confessions on

May 2, 2012. (Ex. D.)[7] On May 8, 2012, counsel

withdrew the motion, because after further

investigation and discovery, including talking with the

officer personally, he felt that he did not have legally

sufficient grounds to move forward with the motion.

(Ex. E at 3.)[8] Here, the transcript expressly

demonstrates counsel’s reasoning and unequivocally

shows that [his] decision was conscious and strategic.

Accordingly, for purposes of a Grosvenor[9] analysis,

the motion to suppress would not have been successful

or dispositive.

Regarding the maximum sentence Defendant

faced, pursuant to section 775.087(1)(b), Count One

was enhanced to a first degree felony, which is

punishable up to thirty years in prison, pursuant to

section 775.082(3)(b), Florida Statutes. Furthermore,

the record reflects Defendant admitted he was guilty

of shooting a firearm into a crowd, hitting a woman in

the pelvis. (Exs. F at 9; G at 31-32, 35-37, 49-50.)[10]

Therefore, also pursuant to section 775.087,

Defendant was subject to at least a twenty-five-year

minimum mandatory sentence because he discharged

7 See Doc. 6-3 at 8-9, Motion to Suppress Statements, Admissions and

Confessions.

8 See Doc. 6-3 at 12.

9 Grosvenor v. State, 874 So. 2d 1176, 1181-82 (Fla. 2004).

10 See Doc. 6-3 at 23, 54-68.

a firearm causing great bodily harm. § 775.087(2)(a)3.,

Fla. Stat. Outside of a youthful offender sentence,

which the Court refused to impose on Defendant after

careful consideration, Defendant could not have

received a lesser sentence than the one the court

imposed pursuant to his open plea. Accordingly, even

if Defendant proceeded to trial and lost, a youthful

offender sentence would not have been forthcoming

based on the Court’s reasoning outlined at the

sentencing hearing, and therefore, Defendant received

the shortest possible sentence by entering his plea.

(Ex. G at 54-56.)[11]

Lastly, during Defendant’s plea colloquy, he

represented to the Court he was voluntarily entering

this plea without coercion or promises, he was

satisfied with his attorney and their discussions, he

was waiving his constitutional rights associated with

a trial, and he was actually guilty of the charged

offenses. (Ex. F at 4-9.)[12] Based on these sworn

representations to the Court and the meritless nature

of the motion to suppress, in conjunction with the fact

the Court would not sentence Defendant as a youthful

offender and he received the lowest possible sentence,

the Court finds there is no reasonable probability

Defendant would have foregone his open plea and

proceeded to trial. Accordingly, Defendant has failed

to demonstrate prejudice and is therefore not entitled

to relief on Ground One.

Id. at 240-42. The First DCA affirmed the postconviction court’s denial of relief.

See Doc. 6-3 at 123.

11 See Doc. 6-3 at 82-84.

12 See Doc. 6-3 at 18-23.

To the extent that the appellate court decided Green’s claim on the

merits,13 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 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, Green 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, Green’s ineffectiveness claim is without merit. The

record supports the postconviction court’s conclusion. There is a strong

presumption in favor of competence when evaluating the performance prong of

the Strickland ineffectiveness inquiry. See Anderson v. Sec’y, Fla. Dep’t of

Corr., 752 F.3d 881, 904 (11th Cir. 2014). The inquiry is “whether, in light of

all the circumstances, the identified acts or omissions were outside the wide

range of professionally competent assistance.” Strickland, 466 U.S. at 690.

“[H]indsight is discounted by pegging adequacy to ‘counsel’s perspective at the

13 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 1192.

time’ . . . and by giving a ‘heavy measure of deference to counsel’s judgments.’”

Rompilla v. Beard, 545 U.S. 374, 381 (2005). Thus, Green must establish that

no competent attorney would have taken the action that his counsel chose.

Notably, the test for ineffectiveness is neither whether counsel could

have done more nor whether the best criminal defense attorneys might have

done more; in retrospect, one may always identify shortcomings. Waters v.

Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) (stating that “perfection is not the

standard of effective assistance”) (quotations omitted). Instead, the test is

whether what counsel did was within the wide range of reasonable professional

assistance. Ward, 592 F.3d at 1164 (quotations and citation omitted); Dingle v.

Sec’y for Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (“The question is

whether some reasonable lawyer at the trial could have acted as defense

counsel acted in the trial at issue and not what ‘most good lawyers’ would have

done.”) (citation omitted).

A brief chronology relating to the motion to suppress and Green’s guilty

plea follows. Green, with the benefit of counsel, filed a Motion to Suppress

Statements, Admissions and Confessions on May 2, 2012. See Doc. 6-1 at 67.

In the motion, Green stated in pertinent part:

It is believed that the State intends to offer the

following statements, admissions or confessions

purportedly made by [Green] at any trial of this cause:

[Green]’s interrogation with detectives on December

16, 2011[.]

The above-mentioned statements should be

suppressed for the following reasons: The oral

statements obtained from Defendant were not freely

and voluntarily given and were a result of continued

and persistent questioning by members of the

Jacksonville Sheriff’s Office under circumstances

indicating intimidation or inequality between the

interrogators and Defendant so as to impair his

freedom of will and thereby amount to compulsion.

Said statements were in violation of Defendant’s

rights guaranteed by the Fifth and Fourteenth

Amendments to the United States Constitution and by

Article I, Section 9, of the Constitution of the State of

Florida.

Id. Counsel withdrew the motion to suppress on May 8, 2012, three hours

before a scheduled hearing that afternoon. See Docs. 6-1 at 69; 6-3 at 12. In

doing so, counsel explained his reasons for withdrawing the motion, stating in

pertinent part:

Judge, that motion was filed to suppress

admissions and confessions. Subsequent to the filing

of my motion[,] I was able to do more investigation into

the circumstances surrounding the interrogation, and

it’s my feelings now, based on further discovery and

talking with the officer personally, that I don’t have

legal grounds sufficient enough to allow a

hearing on [the motion].[14]

Doc. 6-3 at 12 (emphasis added).

14 See Hollis v. United States, 958 F.3d 1120, 1124 (11th Cir. 2020); Ferrell v.

State, 29 So. 3d 959, 976 (Fla. 2010) (per curiam) (“Trial counsel cannot be deemed

ineffective for failing to raise a meritless argument.”) (citation omitted).

A few months later at the plea hearing, counsel advised the court in

pertinent part:

Mr. Green is eligible for a youthful offender

sentence based on his age. Further, because he is a

juvenile, it was my understanding he is precluded

from receiving a life sentence. However, he is as

charged eligible for a minimum mandatory of 25 years,

in the event that Your Honor does not agree after

mitigation and sentencing is presented to a youthful

offender sentence. I have reviewed that with him as

well. At this time[,] we are prepared to go forward with

the plea.

Doc. 6-1 at 121. The record also reflects the circuit judge’s noncommittal tone

when he advised Green that he did not have “the slightest idea” whether he

would sentence him as a youthful offender or otherwise, but would determine

an appropriate sentence after reviewing the evidence. Id. at 123. Green

affirmed that he understood the potential sentences he faced if the court

decided not to sentence him as a youthful offender. See id. at 123-24. Notably,

defendant’s “[s]olemn declarations in open court carry a strong presumption of

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Green has not overcome

this presumption.

Green represented to the court that he was voluntarily entering a guilty

plea to counts one and two. See Doc. 6-1 at 121-22. Additionally, he affirmed

that he was satisfied with his lawyer, and that he had sufficient time to discuss

the plea and its implications with counsel. See id. at 122-23. As to the potential

sentences that Green faced, the State advised:

The maximum, 25 to -- it’s not life anymore, but

there have been cases where 70 years was accepted.

There have been cases where 60 years –

. . . .

Technically count 1 carries 25 to life with the

way it is charged. However, him being a juvenile, there

is not really life. As to count 2, he is facing 15 years

with no minimum.

Id. at 123-24. Green affirmed that he understood the potential sentences and

that counsel had discussed them with him. See id. at 124.

At the sentencing hearing, Green acknowledged that he had confessed to

the police that he had pointed a gun at a group of people and shot at them as

they ran away. See Doc. 6-2 at 12-14. Given Green’s admission, counsel argued

that the court should sentence Green to a youthful offender sentence, stating

in pertinent part:

Your Honor, I think first and foremost the

important thing is that Mr. Green has accepted

responsibility for his actions. He did enter a plea to the

Court knowing that he was facing the 25 to life

sentence, rather than going to trial. He did accept

responsibility knowing that he did injure an innocent

person.

. . . .

He was interviewed by the police. You heard he

did admit to his involvement and he even was

emotional during the interview, he did cry. He was I

believe at first, as most kids tend to, they’re scared and

they don’t tell the whole story right out and then he

did admit that he was the one that shot the gun and

that he had the gun, but he also stated several times

that he never meant to hurt anyone. He had no

intention to hit this woman.

Id. at 21, 23-24. Notably, the State asked that the court sentence Green to a

term of imprisonment of thirty years (with a twenty-five year minimum

mandatory) for count one. See id. at 29.

Even assuming arguendo deficient performance by defense counsel for

failing to act as Green suggests, Green has not shown any resulting prejudice.

He has not shown a “reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Hill,

474 U.S. at 59. If Green had proceeded to trial, and the jury had found him

guilty, he would have faced a possible term of imprisonment of more than

twenty-five years (with a twenty-five year minimum mandatory sentence) for

count one (attempted second-degree murder, a first-degree felony) and a term

of imprisonment of fifteen years for count two. See Docs. 6-1 at 87, Judgment.

His ineffectiveness claim is without merit since he has shown neither deficient

performance nor resulting prejudice. Accordingly, Green is not entitled to

federal habeas relief on his ineffectiveness claim in ground one.

B. Ground Two

Green asserts that counsel was ineffective because he failed to inform

Green that he faced a twenty-five year minimum mandatory term of

incarceration if the court decided not to sentence him as a youthful offender.

See Petition at 7. Green concedes this claim fails. See Reply at 18. Therefore,

the Court deems ground two to be withdrawn and will not address it.

C. Ground Three

As ground three, Green asserts that counsel was ineffective because he

failed to ensure that Green was competent to proceed before he entered a guilty

plea. See Petition at 8. He states that he involuntarily entered the guilty plea

due to “the combined effects” of psychotropic medications (Seroquel,

Wellbutrin, and Abilify) for his mental illness. Id. Respondents argue that

Green did not properly exhaust this ineffectiveness claim in the state courts,

and therefore the claim is procedurally barred. See Response at 15-17. Green

asserts that he did sufficiently exhaust the claim, see Reply at 5-7, and this

Court agrees.

Green raised the ineffectiveness claim in his Rule 3.850 motion. See Doc.

6-2 at 70-75. The postconviction court denied the motion as to the claim, stating

in relevant part:

Defendant contends he was denied effective

assistance of counsel because counsel failed to ensure

Defendant was competent to proceed prior to the plea

of guilty. Specifically, Defendant contends he was

under the influence of various medications at the time

of the plea, which rendered him unable to comprehend

the guilty plea.

A claim that counsel was ineffective for failing to

object to a defendant entering a plea because the

defendant was under the influence of psychotropic

medication can be refuted by the record “when the

defendant affirmatively states that his medication

does not affect the knowing and voluntary nature of

his plea.” Russ v. State, 937 So. 2d 1199, 1201 (Fla. 1st

DCA 2006).

During the plea colloquy, in response to the

Court’s query, Defendant testified that he was not

under the influence of drugs, alcohol or medication.

(Ex. [F] at 5.)[15] Therefore, his claim is refuted by the

record. Id. Furthermore, Defendant is estopped from

receiving an evidentiary hearing on this ground,

because the basis of the claim is that he lied under

oath. Polk, 56 So. 3d at 808.[16] Lastly, the record

reflects counsel did have Defendant evaluated and

Doctor William Legume testified at the sentencing

hearing that Defendant was competent to proceed.

(Ex. G at 9.)[17] Accordingly, the record refutes

Defendant’s claim of deficient performance and

prejudice. For these reasons, Defendant is not entitled

to relief on Ground Three.

Id. at 244-45. The First DCA affirmed the postconviction court’s denial of relief.

See Doc. 6-3 at 123.

15 See Doc. 6-3 at 19.

16 Polk v. State, 56 So. 3d 804 (Fla. 2d DCA 2011).

17 See Doc. 6-3 at 37.

To the extent that the appellate court decided the claim on the merits,18

the Court will address it 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 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, Green is not entitled to relief

on the basis of this ineffectiveness claim.

Even if the appellate court’s adjudication of the claim is not entitled to

deference, Green’s ineffectiveness claim is still without merit. The record

supports the postconviction court’s conclusion. At the plea hearing, Green

acknowledged that the plea was freely and voluntarily entered without threats,

coercion, or promises enticing him to enter a plea. See Doc. 6-1 at 121-22. He

affirmed that he was not under the influence of any drugs, alcohol, or

medications and that he understood what was transpiring in the courtroom.

See id. at 122. He also acknowledged that he was pleading guilty to the charges

because he was in fact guilty and that there was a factual basis for the court

to adjudicate him guilty of the charges. See id. at 126. At the sentencing

18 See Wilson, 138 S. Ct. at 1192.

hearing, Dr. Legume, a psychologist, testified that he evaluated Green and

found him to be competent to proceed. See id. at 140, 149. Notably, Green

testified that the medications calm him and that he does “better” when he

takes them. See Doc. 6-2 at 10. He also explained that he has been “doing good”

since he has been taking the medications. Id.

Green has failed to carry his burden of showing that his counsel’s

representation fell outside that range of reasonable professional assistance.

Even assuming deficient performance by defense counsel, Green has not shown

any resulting prejudice. Thus, his ineffectiveness claim is without merit since

he has shown neither deficient performance nor resulting prejudice.

Accordingly, Green is not entitled to federal habeas relief on his ineffectiveness

claim in ground three.

D. Grounds Four and Five

Green asserts that the state postconviction court erred when it

summarily denied the ineffectiveness claims (related to his motion to suppress

and incompetency) raised in his Rule 3.850 motion. See Petition at 10, 12. He

challenges a defect in the state postconviction process, i.e., the postconviction

court’s failure to conduct an evidentiary hearing on the issues. See Reply at 28.

Respondents argue that Green’s assertions involve “infirmities in his state

postconviction relief proceeding,” Response at 45, that are not cognizable on

federal habeas review, and this Court agrees.

The Eleventh Circuit “has repeatedly held defects in state collateral

proceedings do not provide a basis for habeas relief.” Carroll v. Sec’y, Dep’t of

Corr., 574 F.3d 1354, 1365 (11th Cir. 2009) (citations omitted). “The reasoning

behind this well-established principle is straightforward: a challenge to a state

collateral proceeding does not undermine the legality of the detention or

imprisonment — i.e., the conviction itself — and thus habeas relief is not an

appropriate remedy.” Id. (citations omitted); Anderson v. Sec’y for Dep’t of

Corr., 462 F.3d 1319, 1330 (11th Cir. 2006) (per curiam); Quince v. Crosby, 360

F.3d 1259, 1261-62 (11th Cir. 2004); Spradley v. Dugger, 825 F.2d 1566, 1568

(11th Cir. 1987) (“Neither the state court’s failure to hold a hearing on

petitioner’s 3.850 motion nor its failure to attach the relevant portions of the

record in any way undermines the validity of petitioner’s conviction. Because

[the] claim[] goes to issues unrelated to the cause of petitioner’s detention, it

does not state a basis for habeas relief.”) (citations omitted). As such, Green is

not entitled to federal habeas relief on grounds four and five.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Green 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, Green “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, 537 U.S.

at 335-36 (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 Green 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 3rd day of

January, 2022.

MARCIA MORALES HOWARD

United States District Judge

Jax-1 1/3

C:

Kavon Marquise Green, FDOC #J47936

Counsel of Record

31