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

> District Court, M.D. Florida · January 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10109128

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 3, 2022
- **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/10109128

## How later opinions describe it (automated extraction)

- stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
- stating that “perfection is not the standard of effective assistance”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109128. Public record. Not legal advice.