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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MATTHEW REID HINSON,

Petitioner,

v. Case No. 3:18-cv-1306-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding on a pro

se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1). He

challenges a state court (Duval County, Florida) judgment of conviction for

second degree murder. Petitioner is serving life imprisonment. Respondents

filed a Response (Doc. 7) with exhibits (Docs. 7-1 to 7-10; “Resp. Ex.”). Petitioner

filed a Reply (Doc. 9). This case is ripe for review.

II. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal habeas corpus petition. 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)).

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

decision, if any, that adjudicated the petitioner’s claims 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 an 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 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. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Richter, 562 U.S. at 101 (internal quotation

marks omitted). “It bears repeating that even a strong

case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. [at 102] (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The

Supreme Court has repeatedly instructed lower federal

courts that an unreasonable application of law requires

more than mere error or even clear error. See, e.g.,

Mitchell v. Esparza, 540 U.S. 12, 18 (2003); Lockyer,

538 U.S. at 75 (“The gloss of clear error fails to give

proper deference to state courts by conflating error

(even clear error) with unreasonableness.”); Williams v.

Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants 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); Strickland v. Washington,

466 U.S. 668, 687 (1984)). Courts employ a two-part test when reviewing

ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687.

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” 466 U.S. at 688. 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. 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.

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. It is not enough

“to show that the errors had some conceivable effect on

the outcome of the proceeding.” Id. at 693. 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.

Richter, 562 U.S. at 104 (internal citations modified).1

The two-part Strickland test applies to challenges to the validity of guilty

pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,

58 (1985). The petitioner must still demonstrate that counsel’s performance was

deficient. See id. at 56-59; Lynch v. Sec’y Fla. Dep’t of Corr., 776 F.3d 1209, 1218

(11th Cir. 2015). To establish prejudice, however, the petitioner “must show

that there is 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 (footnote omitted); Lynch, 776 F.3d at 1218.

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward, 592 F.3d at 1163. Both prongs of the

two-part Strickland test must be satisfied to show a Sixth Amendment

violation; thus, “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)). “If it is easier to dispose of an

1 This two-part Strickland standard also governs a claim of ineffective assistance of

appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).

“Appellate counsel has no duty to raise every non-frivolous issue and may reasonably

weed out weaker (albeit meritorious) arguments. Generally, only when ignored issues

are clearly stronger than those presented, will the presumption of effective assistance

of counsel be overcome.” Id. (internal quotations and citations omitted). To satisfy the

prejudice prong, a petitioner must show a reasonable probability that “but for the

deficient performance, the outcome of the appeal would have been different.” Black v.

United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore v. McNeil, 575

F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the neglected claim

would have a reasonable probability of success on appeal”)

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 afforded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, 562 U.S. at 105. 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 (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 105.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (internal

citations modified). 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).

III. Analysis2

On October 29, 2012, Petitioner was charged by information with second

degree murder. See Resp. Ex. A at 11. The murder occurred on October 7, 2012,

at Fionn MacCool’s pub at the Jacksonville Landing, where Petitioner had gone

to meet his wife and his wife’s friend, Lindsey Blackwell. Petitioner had been

drinking before arriving at the pub, and he continued to drink once there. While

at the pub, Petitioner pulled out a knife, slashed another man’s throat, calmly

put the knife back in his pocket, and exited the pub. Shortly thereafter,

Petitioner was arrested while trying to exit the parking garage in his vehicle.

On May 21, 2013, Petitioner entered a plea of guilty as charged. See Resp.

Ex. M at 106-24. After a full day3 sentencing hearing on January 10, 2014, the

trial court sentenced Petitioner to life imprisonment. See id. at 125-592.

A. Ground One, Subpart 1

Petitioner argues that his trial counsel was ineffective “by failing to

obtain an independent drug test of him, where there was evidence that he had

2 Petitioner raised some of his ineffective assistance of counsel claims on direct appeal

and in his postconviction motion filed pursuant to Florida Rule of Criminal Procedure

3.850. Petitioner recognizes, however, that the ineffective assistance of counsel claims

were not properly raised on direct appeal. See Doc. 1 at 15 n.1.

3 The sentencing hearing began at 8:00am and did not end until after 7:00pm. See

Resp. Ex. M at 129, 583-91.

been drugged; thereby supporting a viable defense of involuntary intoxication.”

Doc. 1 at 6. “Petitioner avers that had his counsel properly advised him of the

availability of an involuntary intoxication defense, and performed a competent

investigation thereon, he would not have pled guilty, and would have insisted

upon proceeding to jury trial.” Id.

He raised this claim in his pro se amended postconviction motion filed

pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. M at 58-60.

The postconviction court denied the claim:

In essence, the Defendant alleges that counsel

was ineffective for failing to obtain an independent

drug test of the Defendant to then use as a defense of

involuntary intoxication. Such a test is not required to

raise a defense of involuntary intoxication and would

not prove that the Defendant was “drugged” as he

suggests. A defense of involuntary intoxication would

require testimony from the Defendant and perhaps

other independent witness[es] about the condition of

the Defendant at the time of the offense. Thus, the

Defendant’s allegation does not rise to the level of

ineffective assistance of counsel.

Id. at 99-100. Petitioner appealed, and the First District Court of Appeal per

curiam affirmed the denial of this claim. See Resp. Ex. P.4

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

4 As noted below in Ground Eight, the First DCA reversed and remanded on Ground

Eight only, but otherwise affirmed the postconviction court’s order without comment.

See Resp. Ex. P.

review of the record and the applicable law, the Court concludes that the state

court’s adjudication of this claim was not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal

law, and was not based on an unreasonable determination of the facts in light

of the evidence presented. The record supports the state court’s adjudication.

Thus, Petitioner is not entitled to federal habeas relief on this ground.

Even assuming the state court’s adjudication of this claim is not entitled

to deference, the claim has no merit. Petitioner signed a written plea of guilty

form indicating that he was pleading guilty because he was guilty. Resp. Ex. A

at 278-79. By signing the form, Petitioner agreed that he was advised of the

nature of the charges against him; the statutory offenses included within such

charges; the range of maximum allowable punishments for each charge; all

possible defenses, including “intoxication”; and all circumstances in mitigation.

Id. He also agreed that he understood the rights he was giving up by pleading

guilty and indicated he had ample time to discuss the agreement with his

attorneys. Id. At the plea hearing, he affirmed, under oath, that he was pleading

guilty because he was guilty, he understood his rights, and had sufficient time

to speak with his attorneys. See Resp. Ex. M at 108-16. He also affirmed that

he had read and understood the plea form, and that he had reviewed the form

with his attorneys. Id. at 112-13.

Even assuming a drug test was administered and Petitioner tested

positive, that evidence alone would not support Petitioner’s assertion that he

“had been drugged.” Petitioner relies on his statements to the police following

his arrest that he felt like he was under the influence of an unknown drug, and

his contention that Lindsey Blackwell, who was also arrested at the pub that

evening, had hydrocodone pills in her purse that belonged to Petitioner’s wife.

See Doc. 1 at 6.

Petitioner’s assertions that he was “drugged” unbeknownst to him are

speculative, at best. And his allegations in other claims in his Petition that he

committed the offense in self-defense undermine any claim that he did not

understand the nature of his actions. Petitioner has failed to demonstrate that

his counsel was deficient by not having him drug tested. But even assuming

deficient performance, Petitioner has not shown prejudice. He has not shown a

reasonable probability that, but for counsel’s alleged error in not having him

drug tested, Petitioner would not have pleaded guilty and would have insisted

on going to trial.5 In light of the foregoing, this ground is due to be denied.

5 The Court further notes that in Florida, “[t]he defense of involuntary intoxication is

not available for general intent crimes, including . . . second-degree murder.” Wilson

v. State, 871 So. 2d 298, 301 (Fla. 1st DCA 2004) (citing Jackson v. State, 699 So. 2d

306, 308 (Fla. 1st DCA 1997)).

B. Ground One, Subpart 2

According to Petitioner, his trial counsel was ineffective for “failing to

advise him of several viable defenses.” Doc. 1 at 7. He argues that the victim

was the aggressor and he was simply defending himself. Id. He contends that

“there is no evidence in this case that would have prevented defense counsel

from mounting a viable ‘Stand Your Ground’ defense.” Id. He claims that the

manager of the pub “observed part of the incident and recalled in police reports

that there was a fight.” Id. He also claims that “several other witnesses

remember hearing a commotion behind them and turned around to see the

Petitioner had stabbed the victim.” Id. According to Petitioner, a police officer

told the media that “‘the victim was involved in a disturbance with two other

individuals before being stabbed by the [Petitioner].’” Id. Petitioner claims

“[t]hese reports and statements made by witnesses and police alike all

correspond and point to the fact that the alleged victim in this case was, more

likely than not, the aggressor, just as Petitioner has maintained from the

beginning.” Id.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

M at 61-64. The postconviction court denied the claim:

The Defendant’s allegation here is misplaced.

Raising the issue of “stand your ground” requires the

filing of a pretrial motion and, in essence, places the

matter before the Court for the Court to determine if

the Defendant’s actions were justified. In making such

a finding the Court would then determine that the

Defendant was immune from prosecution and the case

would be concluded.

Previously the filing of such a motion seemed to

be the preferred method. However, more recently

Defendant[]s have not been filing such motions,

apparently for strategic reasons. Not filing such a

motion continues to protect the Defendant’s right to

remain silent until trial and does not preclude the

defense of self-defense at trial. Failure to raise such an

issue pretrial[] does not rise to the level of ineffective

assistance of counsel.

Id. at 100 (paragraph enumeration omitted). Petitioner appealed, and the First

DCA per curiam affirmed the denial of this claim. See Resp. Ex. P.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court concludes that the state

court’s adjudication of this claim was not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal

law, and was not based on an unreasonable determination of the facts in light

of the evidence presented. Thus, Petitioner is not entitled to federal habeas

relief on this ground.

Even assuming the state court’s adjudication is not entitled to deference,

this claim has no merit. Petitioner signed a written plea of guilty indicating

that he was pleading guilty because he was guilty. See Resp. Ex. A at 278-79.

By signing the form, Petitioner agreed that he was advised of the nature of the

charges against him; the statutory offenses included within such charges; the

range of maximum allowable punishments for each charge; all possible

defenses, including “self-defense”; and all circumstances in mitigation. Id. He

also agreed that he understood the rights he was giving up by pleading guilty

and indicated he had ample time to discuss the agreement with his attorneys.

Id. At the plea hearing, he affirmed, under oath, that he had reviewed the form

with his attorneys, and that he was pleading guilty because he was guilty, he

understood his rights, and had sufficient time to speak with his attorneys. See

Resp. Ex. M at 108-16.

The only evidence supporting Petitioner’s self-defense theory is his own

story that someone “grabbed” him or “put their hands” on him and he felt

“threatened,” so he grabbed the back of the victim’s head and slit his throat. It

is undisputed that the victim was unarmed. Petitioner’s version of events, even

if true, does not support the use of deadly force. Given the evidence in the record,

it is unlikely that Petitioner’s self-defense theory would have prevailed. Based

on the extensive testimony and evidence presented at the sentencing hearing,

it is clear that the defense strategy was to plead guilty to second degree murder

and argue mitigation at sentencing. Had Petitioner not pled guilty, the state

was considering indicting him on first degree murder and potentially seeking

the death penalty. See id. at 580. Considering the record, the Court finds

Petitioner has failed to show either deficient performance or resulting prejudice.

Thus, this ground is due to be denied.

C. Ground One, Subpart 3

Petitioner argues that his trial counsel was ineffective because “counsel

never informed him of the nature of the charges against him (second-degree

murder), the essential elements of those charges, factual basis underlying those

charges, or the legal options and alternatives that were available.” Doc. 1 at 7-

8. According to Petitioner, he “repeatedly told his attorneys that he never

intended to kill the victim, but only reacted in defense of his person due to the

aggressive actions by the victim.” Id. at 8.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

M at 65-68. The postconviction court denied the claim, finding it was “refuted

by the record and specifically, the transcript of May 21, 2013 and the plea

dialogue conducted by the judge.” Id. at 100. Petitioner appealed, and the First

DCA per curiam affirmed the denial of this claim. See Resp. Ex. P.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court concludes that the state

court’s adjudication of this claim was not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal

law, and was not based on an unreasonable determination of the facts in light

of the evidence presented. The record supports the state court’s adjudication.

Indeed, Petitioner signed a written plea of guilty form and confirmed at the

change of plea hearing that he had read and understood the form, and that he

had reviewed it with his attorneys. See Resp. Ex. M at 112. Petitioner testified

that he had enough time to talk to his attorneys, the attorneys answered all of

his questions, and he did not need more time to speak with them. See id. at 108-

09. Although the defense stipulated to a factual basis, the prosecutor outlined

the facts supporting the charge, and Petitioner averred that he understood the

sentencing guidelines. See id. at 110-11, 118. Further, Petitioner affirmed that

he understood the rights he was giving up by pleading guilty, and he confirmed

that he was pleading guilty because he was guilty. Id. at 112-16.

Petitioner’s solemn declarations in court carry a strong presumption of

truth. Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also Winthrop-Redin v.

United States, 767 F.3d 1210, 1217 (11th Cir. 2014) (stating that defendants

who make statements under oath at a plea colloquy bear a heavy burden to

show his statements were false) (quotation and citation omitted). Thus,

Petitioner’s representations at the plea hearing “constitute a formidable barrier

in any subsequent collateral proceedings.” Blackledge, 431 U.S. at 73-74; see

also Stano v. Dugger, 921 F.2d 1125, 1152 (11th Cir. 1991) (recognizing that the

record of the plea proceedings may contradict any subsequent claim that

counsel’s representation was deficient). Considering the record, the Court finds

that Petitioner is not entitled to federal habeas relief on this ground.

D. Ground One, Subpart 4

Petitioner asserts that his trial “counsel was ineffective for failing to file

a motion to either dismiss or reduce the charge on the ground that the evidence

was insufficient to proceed on the charged offense.” Doc. 1 at 8. He claims that

the state had no evidence to prove he acted with “ill will, malice, hatred, spite,

or an evil intent.” Id. at 9. He argues that “[a]lthough several witnesses reported

seeing part of the altercation between the decedent and the Petitioner, police

failed to find anyone who witnessed the actual beginning of the incident.” Id. at

8. Petitioner maintains that his statements to the police are “the only account

as to what took place at that critical stage,” and he has “consistently maintained

that the decedent (who he had never before met or spoken to) attacked him

without any word or provocation or warning, and that [Petitioner] was placed

in fear of his life by the surprise attack and acted without thought to protect

himself.” Id. He further contends that his counsel “urged” him to enter a guilty

plea “without first advising him of the critical elements the State would have to

prove beyond a reasonable doubt,” and “the State coerced the Petitioner into

taking defense counsel’s unprofessional advice to plead to second-degree

murder by stating, on the record and in the presence of the Petitioner, that he

had told defense counsel ‘flat out, you either plead . . . or I’m indicting him on

first-degree murder and . . . seek[ing] the death penalty.’” Id. at 9.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

M at 68-73. The postconviction court denied the claim: “The Defendant waived

his right as it relates to the Motion, by entering a plea of guilty to the charge

and admitting guilt. Further, the Defendant acknowledged and admitted that

there was a factual basis to support the plea and charge of second degree

murder.” Id. at 101. Petitioner appealed, and the First DCA per curiam affirmed

the denial of this claim. See Resp. Ex. P.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court concludes that the state

court’s adjudication of this claim was not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal

law, and was not based on an unreasonable determination of the facts in light

of the evidence presented. Thus, Petitioner is not entitled to federal habeas

relief on this claim.

Even assuming the state court’s adjudication is not entitled to deference,

this claim has no merit. The gravamen of Petitioner’s claim is that he would

have insisted counsel file a motion to dismiss or reduce the charge and he would

not have pled guilty if counsel had informed him that (1) the state’s evidence

was insufficient to prove he committed the murder with ill will, hate, spite, or

evil intent; and (2) the state’s threat to indict him on first degree murder if he

did not plead guilty would be “unconstitutional[ly] malicious and vindictive.”

Doc. 1 at 9.

By signing the plea of guilty form and confirming at the plea hearing that

he reviewed and understood the form, Petitioner affirmed that he had “not been

threatened, coerced, or intimidated by any person, including [his] attorney, in

any way in order to get [him] to enter th[e] plea.” Resp. Ex. A at 278. He further

affirmed that he was entering the plea “freely and voluntarily.” Id. at 279. A

sufficient factual basis for second degree murder was presented at the plea

hearing, and Petitioner averred that he understood he was giving up his right

to have the state prove his guilt beyond a reasonable doubt. See Resp. Ex. M at

110, 115, 118. The evidence in the record showing Petitioner’s actions before

and immediately after the murder supports the factual basis presented at the

plea hearing. Thus, Petitioner’s counsel was not ineffective for failing to advise

Petitioner that the evidence was insufficient.

Additionally, it was not improper for the state to advise Petitioner that it

was planning on indicting him on first degree murder and possibly seeking the

death penalty. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)

(recognizing that it is entirely permissible to confront a defendant with the risk

of more serious charges if he decides to proceed to trial). Indeed, knowing that

the state had the option to amend the charged offense allowed Petitioner to fully

assess his options and decide whether to enter the plea. Counsel was not

ineffective for failing to file a motion to dismiss or reduce the charges. This

ground is due to be denied.

E. Ground One, Subpart 5

“Petitioner avers his court appointed defense counsel was ineffective for

inducing him to enter an open plea of guilty by assuring him that the judge

would sentence him within the recommended guidelines range, thus rendering

the plea involuntary and unknowing where the judge instead imposed a

statutory maximum sentence.” Doc. 1 at 10. Petitioner claims that his counsel

advised him “that he knew the judge well and that she would ‘be lenient.’” Id.

He argues that “[c]ounsel further misadvised the Petitioner that the State was

‘about to upgrade the charge to premeditated first-degree murder,’ and if they

did so and the Petitioner went to trial he would ‘be convicted and sentenced to

death.’” Id. He claims that “counsel went over with the Petitioner the questions

he expected the judge to pose to the Petitioner during the plea colloquy and

advised the Petitioner as to what his answers to those questions had to be in

order for the court to accept his plea of guilty.” Id.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

M at 74-77. The postconviction court denied the claim, finding the allegations

to be “refuted by the transcript dated May 21, 2013.” Id. at 101. Petitioner

appealed, and the First DCA per curiam affirmed the denial of this claim. See

Resp. Ex. P.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court concludes that the state

court’s adjudication of this claim was not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal

law, and was not based on an unreasonable determination of the facts in light

of the evidence presented. On the plea of guilty form signed by Petitioner, it

specifically states: “I have not been offered any hope of reward, better

treatment, or certain type of sentence to get me to enter this plea. I have not

been promised by anyone, including my attorney, that I would actually serve

any certain amount of time.” Resp. Ex. A at 278. During the plea hearing, the

following colloquy occurred between the trial court and Petitioner:

THE COURT: Has anyone, including the

attorneys who stand here with you this morning, has

anyone promised you anything in return for the guilty

plea that you have entered to the charge of second

degree murder?

THE DEFENDANT: No, ma’am.

. . . .

THE COURT: So the guidelines are a minimum

of 20.5 years in Florida State Prison . . . to life in prison

. . . . [D]o you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT: And do you further understand

that your plea is to the Court . . . . And that I would be

determining what your sentence would be at a later

time after a Presentence Report is ordered and after,

of course, a hearing, at which time you have the right

to present evidence and testimony on your behalf as

well as the State has an opportunity to present

testimony, perhaps the victim, in those matters; do

you understand that, sir?

THE DEFENDANT: Yes, ma’am.

THE COURT: And has anyone, your

attorneys, others, has anyone made predictions

or any sort of estimates to you, sir, on what the

Court might do?

THE DEFENDANT: No, ma’am.

THE COURT: And are you pleading guilty, Mr.

Hinson, because you are guilty?

THE DEFENDANT: Yes, ma’am.

Resp. Ex. M at 110-12 (emphasis added). At the conclusion of the colloquy, the

judge found, in relevant part:

I find that Mr. Hinson understands the nature

of the charge, that being second degree murder, and

that he understands the consequences of his plea of

guilty, that being that the Court can sentence him to

a minimum under the guidelines of 20.5 years to life

in prison. There’s no minimum mandatory. And Mr.

Hinson has expressed that he understands those

possibilities. And that he further understands that the

Court would be passing sentence at a later time, and

that he further has expressed understanding that

there are no negotiated dispositions and no promises

have been made to him.

Id. at 119. Petitioner’s representations at the plea hearing “constitute a

formidable barrier in any subsequent collateral proceedings.” Blackledge, 431

U.S. at 73-74. Considering the record, the Court finds that this claim is due to

be denied.

F. Ground One, Subpart 6

Petitioner claims that his “counsel was ineffective for urging him to plead

guilty knowing that at the time he was being treated with mind-altering

psychotropic drugs that rendered him incapable of making intelligent and

knowing decisions, thereby making the plea involuntary.” Doc. 1 at 10.

According to Petitioner, his “plea of guilty is involuntary because it was induced

through the misrepresentations of defense counsel at a time when the

Petitioner was suffering mental health problems (mainly PTSD) and was under

the influence of doctor prescribed anti-psychotropic drugs.” Id. at 11.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

M at 78-80. The postconviction court denied the claim, finding the allegations

to be “refuted by the transcript dated May 21, 2013.” Id. at 102. Petitioner

appealed, and the First DCA per curiam affirmed the denial of this claim. See

Resp. Ex. P.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Petitioner signed

a written plea of guilty indicating that he was “not under the influence of any

substance, drug, or condition (physical, mental, or emotional), which interferes

with [his] appreciation of the entire plea agreement into which [he was]

entering and all consequences thereof,” and that he was properly taking “any

medication which is essential to [his] full, complete, and unimpaired

understanding of the plea agreement.” Resp. Ex. A at 279. At the plea hearing,

he affirmed that he read and understood the plea form that he had signed. See

Resp. Ex. M at 112. Also at the hearing, the trial court asked Petitioner whether

he was “under the influence of any alcohol, drugs or prescription medications,”

to which Petitioner responded, “No, ma’am.” Id. at 110. At the conclusion of the

hearing, the trial court made the following findings:

I find that there is a factual basis for the plea of

guilty that Mr. Hinson entered to the second degree

murder charge. I find that his plea is free and

voluntarily [sic]. I find that Mr. Hinson has given the

Court very careful attention, that he has been

responsive to the questions that I have asked, that he

has additionally been offered a chance to ask the Court

questions and Mr. Hinson indicated that he had no

questions.

I find that Mr. Hinson understands the nature

of the charge, that being second degree murder, and

that he understands the consequences of his plea of

guilty, that being that the Court can sentence him to

a minimum under the guidelines of 20.5 years to life

in prison. There’s no minimum mandatory. And Mr.

Hinson has expressed that he understands those

possibilities. And that he further understands that the

Court would be passing sentence at a later time, and

that he further has expressed understanding that

there are no negotiated dispositions and no promises

have been made to him.

Id. at 118-19.

Upon thorough review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented. Thus, Petitioner is

not entitled to federal habeas relief on this claim.

G. Ground One, Subpart 7

According to Petitioner, his “counsel was ineffective for failing to locate,

interview, and call an available defense witness, Kimberly Russell, thereby

rendering his plea involuntary and unknowing.” Doc. 1 at 11. Petitioner claims

this witness was listed in a police report as making “a statement to the police

that she had ‘witnessed the victim’s actions during the course of the evening.’”

Id.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

M at 81-84. The postconviction court denied the claim, finding that “[t]he

inability to locate a defense witness does not in and of itself rise to the level of

ineffective assistance of counsel. It is clear from the record that Defendant’s

counsel conducted extensive discovery prior to the Defendant entering his plea

of guilty.” Id. at 102. Petitioner appealed, and the First DCA per curiam

affirmed the denial of this claim. See Resp. Ex. P.

Upon thorough review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented. Thus, Petitioner is

not entitled to federal habeas relief on this ground.

Even assuming the state court’s adjudication is not entitled to deference,

the claim has no merit. According to Respondents, the statements Petitioner

attributes to “Kimberly Russell do not appear in the trial court record or the

postconviction record.” Doc. 7 at 79. Attached to Petitioner’s pro se brief on

direct appeal is a document he purports to be part of a police report from the

night of the murder. See Resp. Ex. D. As to Kimberly Russell, the document

states:

Kimberly Russell pointed out a female that

might have been involved in the incident and the

victim. Kimberly observed the suspect walk away from

the restaurant.

. . . .

As I was reviewing the scene, a female detained

at the front bar (later identified as Kimberly Russell)

was asking Officer Bydik when she could leave and she

seemed very agitated. I walked over to her (Russell)

and introduced myself and explained that the process

would take some time and Russell explained that she

was separated from her husband and she was worried

about him and wanted to leave. I was trying to help

resolve this issue when a female in a black dress (later

identified as Lindsay Blackwell) had gotten up from a

corner table and began aggressively walking toward

Russell. Blackwell was loudly arguing with Russell

and officers instructed her to return to her table. She

was reluctant and continued to argue. She sat at the

table for a short period of time. Russell then explained

to me that Blackwell had been in the restaurant and

had been visiting several different men to include the

victim.

Id.

The record shows that defense counsel conducted discovery before

Petitioner decided to plead guilty, including the taking of several depositions of

civilians and law enforcement. There is no evidence to support Petitioner’s

suggestion that counsel was required to interview this potential witness.

Moreover, Petitioner’s claim is wholly speculative in that he does not know

whether Ms. Russell’s testimony would have supported his position. See Doc. 1

at 12 (“Counsel did not know whether Ms. Russell’s testimony would be

favorable or not because they had not interviewed her. At a minimum, a

reasonably competent attorney would have interviewed Ms. Russell to ensure

whether or not there was any favorable testimony available from her, which

would contribute to building a defense.”). Petitioner has shown neither deficient

performance nor resulting prejudice. Thus, this claim is due to be denied.

H. Ground One, Subpart 8

Petitioner argues that his “counsel was ineffective for failing to

investigate and prepare for trial, thus inducing his plea and rendering it

involuntary and unknowing due to his bona fide fear that his attorney was not

prepared to try the case before the jury.” Doc. 1 at 12. Petitioner raised this

claim in his amended Rule 3.850 motion. Resp. Ex. M at 84-85. The

postconviction court denied the claim, finding that “[t]he Defendant’s

allegations are refuted by a review of the court file and the extensive discovery

done by trial counsel prior to the Defendant’s entry of his plea.” Id. at 102.

Petitioner appealed, and the First DCA entered a written opinion reversing the

postconviction court’s denial of this claim only and remanding for the

postconviction court to re-address this claim. See Resp. Ex. P.6 On remand, the

postconviction court entered a supplemental order denying this claim and made

the following findings:

The Defendant in the instant case was arrested

on October 8, 2012 and charged with Second Degree

Murder.

6 The First DCA found this claim to be “colorable and not conclusively refuted by the

attachments to the order.” Resp. Ex. P.

The Defendant entered a Plea of Guilty on May

21, 2013, approximately seven and one-half (7½)

months after his arrest. . . .

At the time the Defendant entered his Plea of

Guilty his case was not set for trial, but rather was set

for a Pre-Trial Hearing.

The Defendant’s sentencing hearing was

originally scheduled for September 18, 2013; however,

it was continued on numerous occasions. The

Defendant was finally sentenced (after a two[7] day

hearing) on January 10, 2014, approximately eight (8)

months after the entry of his plea.

During the aforementioned eight (8) month

period the Defendant never suggested that his plea

had been entered involuntarily.

. . . .

Again, this Court notes the case was not set for

trial at the time of Defendant’s plea.

The Defendant entered his plea freely and

voluntarily with the full knowledge and

understanding of the nature and consequences of the

plea.

The Defendant never filed a motion seeking to

withdraw his plea prior to sentencing, nor did the

Defendant suggest at sentencing that his plea had

been entered involuntarily.

The Court Docket clearly demonstrates the

extensive amount of work done by defense counsel

which includes investigating and preparing the case.

7 The transcript of the sentencing hearing reflects that it began at 8:00am and ended

after 7:00pm the same day. See Resp. Ex. M at 129, 583-91.

Furthermore, the Defendant testified at his

sentencing hearing and at no time during his

testimony did he raise the issue that he entered a plea

involuntarily due to being fearful that his attorneys

were not going to be prepared for trial.

Defendant filed a Motion for Sentence

Reduction, and again, never mentioned that his plea

was entered involuntary, but rather quite the

contrary.

Resp. Ex. U at 3-5 (internal record citations omitted). Petitioner appealed, and

the First DCA per curiam affirmed the denial of this claim without a written

opinion. Resp. Ex. X.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court concludes that the state

court’s adjudication of this claim was not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal

law, and was not based on an unreasonable determination of the facts in light

of the evidence presented. Thus, Petitioner is not entitled to federal habeas

relief on this claim.

I. Ground One, Subpart 9

Petitioner argues his counsel was ineffective “by advising him to enter a

plea without informing him that an insanity defense was available.” Doc. 1 at

13. He alleges that his counsel did not advise him of this defense even though

counsel knew “of the psychologist’s report concluding that Petitioner suffered

from PTSD at the time of the offense.” Id.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

M at 86-87. The postconviction court denied the claim, finding that “[t]here is

no evidence to support the Defendant’s suggestion that an insanity defense was

a viable defense. In fact, the Defendant was examined by a mental health expert

prior to sentencing. Dr. Harry Krop testified on behalf of the Defendant at

sentencing.” Id. at 102. Petitioner appealed, and the First DCA per curiam

affirmed the denial of this claim. See Resp. Ex. P.

Upon thorough review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented. By signing the plea

of guilty form, Petitioner acknowledged that he discussed all possible defenses

with his attorney, including “insanity.” Resp. Ex. A at 278. Dr. Krop,

Petitioner’s expert at the sentencing hearing, specifically testified he believed

Petitioner was sane at the time of the offense. Resp. Ex. M at 284-85; see also

Resp. Ex. A at 309-10 (Dr. Krop’s summary report). The record fully supports

the state court’s adjudication of this claim. Thus, Petitioner is not entitled to

federal habeas relief on this ground.

J. Ground One, Subpart 10

Petitioner argues that his counsel “was ineffective for failing to move to

suppress his confession on the ground that he was under duress and too

intoxicated to waive his rights.” Doc. 1 at 13. He claims that “other than the

statements Petitioner made to police, the State lacked any evidence whatsoever

as to the cause of the altercation and the Petitioner’s intent toward the

decedent.” Id.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

M at 88-90. The postconviction court denied the claim, finding that “[t]he Court

file and a review of the Defendant’s interview with police refutes the allegations

contained herein.” Id. at 103. Petitioner appealed, and the First DCA per curiam

affirmed the denial of this claim. See Resp. Ex. P.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court concludes that the state

court’s adjudication of this claim was not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal

law, and was not based on an unreasonable determination of the facts in light

of the evidence presented. Portions of Petitioner’s interview with the police

following his arrest on the night of the murder were played at the sentencing

hearing. Petitioner assured the detectives that he was “totally sober,” and that

he could understand what the detectives were saying and effectively

communicate with them. Resp. Ex. M at 389-90. The transcript reflects that

Petitioner appropriately responded to the detectives’ questions. See id. at 384-

437. Because the record fully supports the state court’s adjudication, this Court

finds that Petitioner is not entitled to federal habeas relief on this ground.

K. Ground One, Subpart 11

Petitioner argues that “[t]he trial court deprived Petitioner of due process

of law and created a manifest injustice by relying solely upon a stipulation

between defense counsel and State instead of requiring the State to establish a

factual basis for Petitioner’s guilty plea.” Doc. 1 at 14. He alleges that “the

parties stipulated to a factual basis without ever putting those facts on the

record.” Id. He argues that his counsel stipulated to his guilt and had “counsel

held the State to its burden of establishing on the record a factual basis for his

plea of guilt, the State would have been unable to establish a prima facie

evidence of ill will, hate, spite, or evil intent toward the victim.” Id.

In his pro se brief on direct appeal, Petitioner argued that his “guilty

plea/conviction is invalid due to no factual basis determined and because

counsel misadvised [him] of [the] nature of [the] charge.” Resp. Ex. D at 19

(capitalization omitted). He asserted that the “trial court relied on insufficient

facts to support [his] conviction.” Id. at 20. The First DCA per curiam affirmed

Petitioner’s conviction and sentence without issuing a written opinion.8 See

Resp. Ex. E.

Petitioner also raised this claim in his amended Rule 3.850 motion. Resp.

Ex. M at 91-94. The postconviction court denied the claim:

The transcript dated May 21, 2013 refutes the

allegations contained in ground eleven. Specifically,

the Assistant State Attorney stated that the State

would be prepared to prove that Mr. Hinson actually

utilized a knife to slash the throat of William Pettry

and that the sentencing guidelines were 20.5 years to

life. The Court then asked Mr. Hinson if he heard what

the prosecutor had said and the Defendant indicated

that he had heard same. Later the Court asked the

Defendant if he was pleading guilty because he was

guilty and the Defendant responded, “yes ma’am.”

Further, while the defense did stipulate to a factual

basis, the Assistant State Attorney proceeded to recite

the factual basis despite the stipulation.

Id. at 103. Petitioner appealed, and the First DCA per curiam affirmed the

denial of this claim. See Resp. Ex. P.

Upon thorough review of the record and the applicable law, the Court

concludes that the state court’s adjudications of these claims (ineffective

assistance of counsel and trial court error) were not contrary to clearly

8 On direct appeal, Petitioner’s counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), contending that the appeal was “wholly frivolous.” See Resp. Ex.

C. Petitioner filed a pro se brief. See Resp. Ex. D. The First DCA did not order the

state to file a response before per curiam affirming Petitioner’s conviction and

sentence. See Resp. Ex. E; see also Hinson v. State of Florida, No. 1D14-375 (Fla. 1st

DCA 2014).

established federal law, did not involve an unreasonable application of clearly

established federal law, and were not based on an unreasonable determination

of the facts in light of the evidence presented. At the change of plea hearing, the

prosecutor advised that “the State would be prepared to prove that [Petitioner]

actually utilized a knife to slash the throat of William Pettry, therefore there

are no minimum mandatories because a gun was not involved. The guidelines

are 20.5 years to life.” Resp. Ex. M at 110. Although the defense stipulated there

was a factual basis, the state advised:

And the State would have been prepared to

prove beyond a reasonable doubt, if that happened,

Judge, that on October 7, 2012, in the County of Duval

in the State of Florida, that Matthew Hinson did

unlawfully by an act imminently dangerous to another

and evidencing a depraved mind regardless of human

life although without any premeditated design to

effect the death of any particular individual, did kill

William Pettry, a human being, by stabbing Mr. Pettry

and while doing so, he did carry, display, use or

threaten to use a deadly weapon, contrary to Section

782.04 of the Florida Statutes.

Id. at 118.

The record supports the state court’s adjudications. Thus, Petitioner is

not entitled to federal habeas relief on this ground.

L. Ground One, Subpart 12

According to Petitioner, “[t]he cumulative impact of deficiencies on

Petitioner’s court appointed defense counsel’s performance prejudice[d] him and

deprived him of effective assistance of counsel.” Doc. 1 at 14. Petitioner raised

this claim in his amended Rule 3.850 motion. Resp. Ex. M at 95-97. The

postconviction court denied the claim: “In that the Court found no single error,

the cumulative effect would not rise to the level of ineffective assistance of

counsel.” Id. at 104. Petitioner appealed, and the First DCA per curiam affirmed

the denial of this claim. See Resp. Ex. P.

None of Petitioner’s individual claims warrant relief; thus, there is

nothing to accumulate. See Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132

(11th Cir. 2012). Petitioner’s counsels’ alleged errors, neither individually nor

cumulatively, deprived him of a fair trial or due process. Considering the record,

the Court concludes that the state court’s adjudication of this claim was not

contrary to clearly established federal law, did not involve an unreasonable

application of clearly established federal law, and was not based on an

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

Thus, Petitioner is not entitled to federal habeas relief on this ground.

M. Ground Two

Petitioner avers that his appellate “counsel was ineffective for failing to

raise and argue the prosecutor’s misconduct, which constituted fundamental

error, and which is apparent on the face of the record.” Doc. 1 at 16. Petitioner

states that “[d]uring closing argument at Petitioner’s sentencing hearing, the

State Attorney made improper and highly inflammatory statements concerning

his personal opinion as to why Petitioner plead guilty to the charged offense

instead of going to trial.” Id.

Petitioner raised this claim in a petition for writ of habeas corpus filed

with the First DCA. Resp. Ex. Z. The First DCA denied the petition on the

merits. Resp. Ex. AA.

After the presentation of testimony and evidence at the sentencing

hearing, Petitioner’s counsel, in closing argument, asked the court to depart

downward from the guidelines (15 years) or at a minimum, impose the

minimum prison sentence under the guidelines (20.5 years). See Resp. Ex. M at

553-54, 583. The state recommended that the court impose a life term of

incarceration. See id. at 582.

At the conclusion of the state’s closing argument, the following occurred:

THE COURT: I just have a couple of questions,

Mr. Moody, concerning your recommendation.

Mr. Hinson entered a plea of guilt, there was no

trial, he has a minimum record, he served his country,

I just want to ask you, sir, how you factor that in?

. . . .

[THE STATE]: If you’re asking for a personal

opinion, as well as a professional opinion, I’ll be more

than happy to provide it, Judge. A personal opinion

and a professional opinion combined, what was he

going to argue? He was seen by an entire bar full of

people stabbing an unarmed man and shrugging and

walking his way out. He was captured immediately

thereafter. The reality is, and this is not something

that I typically I believe that we would go into, but

since I have been inquired from the Court, I can tell

this Court that the day Mr. Hinson pled to this Court

straight up I was shocked. I didn’t think - - I thought

when Mr. Eler told me that it was a joke, because he

came up and he said, hey, what are his guidelines. I

said, I haven’t done them yet, why, because he’s going

to plead out today. I said, are you kidding me? I didn’t

know.

But the reason that, Judge, I would submit to

you - - and again, Mr. Eler, since you are asking this I

will answer it and he can respond if he wishes, we have

had multiple conversations and I told him flat out, you

either plead - - you’ve got two choices because you’re

not getting a deal from me, you plead him straight up

to the Court and you beg for mercy and whatever

Judge Bass gives him she gives him, or I’m indicting

him on first degree murder and we might seek the

death penalty, because that’s how strongly the State

of Florida felt about what he did. Based on that

conversation, I would submit to you, that’s why the

defendant decided, well, I don’t want to be facing the

death penalty, I don’t really have a good defense, so

really my only option here is to plead straight up to the

Judge, because unlike - - and the way that Ms. Bedell

phrased it, the State of Florida has never made a 15

year recommendation.

A presentence investigative officer with the

Department of Corrections in her presentence

investigative report has made a recommendation, I

believe, of no less than 15 years. The State of Florida,

being the State Attorney’s Office, has never made an

offer, we have never made a recommendation and,

candidly speaking, whenever I saw that PSI I

contacted . . . that probation officer’s supervisor

because they’re not allowed to give a below guideline

recommendation, so I contacted to find out, I thought

she was going to be here today, she was on the defense

witness list, and I was really looking forward to cross-

examining her, because I wanted to know how

someone in her position, who knew the facts as she

knew them, felt like 15 years was an appropriate

sentence for an individual who murdered an unarmed

man, and I wanted to know how many different people

he was going to have to kill before she might make a

recommendation that’s at least a guideline sentence.

. . . .

I understand where the Court is going. I

understand that there are mitigating factors. That

this Court has the discretion and has the right before

it that you may wish and that you may choose to

consider, would have to consider it, but you may wish

to use those. Whether or not you think it’s fair to give

someone a life sentence who decided not to go to trial

and plead straight up and beg for mercy I understand

is a legitimate question, but it is not the State of

Florida’s concern that he decided to plead straight up.

The State of Florida’s concern is what he did,

and based on the actions of what he did, we believe

that he deserves life in prison. It’s not a - - this was not

a bar fight. This was not mutual combat. This was an

armed man slitting the throat of an unarmed man who

just happened to be there having a good time, and

because of that he died.

Resp. Ex. M at 578-82. In rebuttal, Petitioner’s counsel responded, in pertinent

part: “Mr. Moody did make that statement at some point to us that he could

indict our client, but just so the Court is aware, we’d already had discussions

with him about the possibility of entering a plea, and Mr. Eler wanted to do

some additional depositions before we let him do that.” Id. at 582. The court

then took a recess before pronouncing sentence. See id. at 583-84. After

extensively detailing the factors the court considered and making specific

findings, the court imposed a life sentence. See id. at 584-91.

Before a direct appeal was filed, Petitioner, through counsel, filed a

motion for reconsideration of the life sentence, arguing in relevant part:

During the sentencing hearing the State

suggested to this Honorable Court that the Defendant

only entered the plea of guilt in order to not risk being

charged with Murder in the First Degree. This is

untrue and significantly diminishes the true remorse

the Defendant feels for the grievous act that occurred

on October 7, 2012 resulting in the death of William

Pettry.

Entering a plea of guilt was a consideration that

the Defendant weighed heavily and did not take

lightly. It was not made solely for the purpose of

avoiding a possible death penalty. It was an

acceptance of the responsibility of the violent act he

caused.

In addition, it was the Defendant’s

constitutional right to have a trial and it is not a right

that should be taken lightly. The implication made by

the State that the Defendant’s plea was only made in

fear of an indictment for Murder in the First Degree,

does not take into consideration the totality of the

circumstances that occurred since the Defendant’s

arrest that influenced the Defendant to waive his right

to a trial and enter a plea of guilty.

Resp. Ex. I (paragraph enumeration omitted). Defense counsel then provided a

timeline of the actions taken during discovery and communications with

Petitioner about pleading guilty, which culminated in Petitioner’s decision to

plead guilty “well before [he] considered the possibility that he would be

indicted for murder in the First Degree.” Id. Defense counsel also reviewed

other evidence and testimony presented at the sentencing hearing and asked

the court to reconsider Petitioner’s sentence. See id.

The trial court entered an order denying the motion for reconsideration:

“While the Court has considered the circumstances the Defendant has brought

to the Court’s attention in the Motion, the Court is not inclined to modify the

Defendant’s previously imposed sentence.” Resp. Ex. J.

Upon thorough review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented. Thus, Petitioner is

not entitled to federal habeas relief on this ground, and Ground Two is due to

be denied.

Accordingly, it is

ORDERED:

1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED

WITH PREJUDICE.

2. The Clerk of Court shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

3. If Petitioner appeals the denial of his 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.?

DONE AND ORDERED at Jacksonville, Florida, this 3"¢ day of March,

2022.

Cirnotheg 9. Corrig an

TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 3/8

C:

Matthew Reid Hinson, #J50319

Counsel of Record

9 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, Petitioner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong,’ Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration

of the record as a whole, the Court will deny a certificate of appealability.

Al