Opinion

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

Court: District Court, M.D. Florida
Filed: Apr 13, 2022
Cited by: 0 cases
Authority: More cited than 19.9%

finding trial court made an independent determination of competency when, at the competency hearing, the court had the competency evaluation, reviewed the evaluation, and found the defendant competent to proceed

How later courts described this case

finding trial court made an independent determination of competency when, at the competency hearing, the court had the competency evaluation, reviewed the evaluation, and found the defendant competent to proceed
holding a court may deny postconviction relief on claims that are refuted by sworn representations the defendant made to the trial court
stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
“The question is whether some reasonable lawyer at the trial could have acted as defense Warden, 975 F.3d 1165, 1176 n.1 (11th Cir. 2020); Williams v. Head, 185 F.3d 1223, 1229 (11th Cir. 1999

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

GARY LEE LEISTER,

Petitioner,

v. Case No. 3:19-cv-1020-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Gary Lee Leister, an inmate of the Florida penal system,

initiated this action on August 27, 2019,1 by filing a Petition for Writ of Habeas

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

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

for second degree murder. He raises nine claims. See Petition at 15-32.

Respondents have submitted a memorandum in opposition to the Petition. See

Amended Response (Doc. 11). They also submitted exhibits. See Docs. 8-1

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.

through 8-11. Leister filed a brief in reply. See Reply (Doc. 21). This action is

ripe for review.

II. Relevant Procedural History

On March 6, 2008, the State of Florida charged Leister with second

degree murder in Duval County case number 2008-CF-2311. See Doc. 8-1 at

41. Leister entered a guilty plea to the charge on October 23, 2013. See Doc. 8-

2 at 21; id. at 29-45, Transcript of the Plea Proceeding. On April 3, 2014, the

court sentenced Leister to a term of imprisonment of twenty-six years. See id.

at 85-90, Judgment.

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

pursuant to Anders v. California, 386 U.S. 738 (1967). See Doc. 8-4 at 2-14.

Leister also filed a pro se brief. See Doc. 8-5 at 2-10. The State did not file an

answer brief. See Doc. 8-6 at 2. On November 10, 2014, the First District Court

of Appeal (First DCA) affirmed Leister’s conviction and sentence per curiam

without issuing a written opinion, see Doc. 8-7 at 4, and on December 8, 2014,

the court issued the mandate, see id. at 3.

On March 23, 2015, Leister filed a pro se motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. See Doc. 8-8 at 5-17. In

his Rule 3.850 motion, Leister asserted that his trial counsel were ineffective

because: Quentin Till failed to request a competency hearing upon Leister’s

return from involuntary hospitalization (ground one), see id. at 7-9; Michael

Bateh misadvised Leister to enter a guilty plea (ground two), see id. at 9-11;

and Amanda Kuhn failed to file an adequate motion to withdraw the plea

(ground three), see id. at 11-12. He also asserted that the cumulative effect of

counsels’ errors entitled him to postconviction relief (ground four). See id. at

12-13. On June 3, 2015, Leister asked for the court’s permission to add a claim:

specifically, that Michael Bateh was ineffective because he interfered with

Leister’s right to withdraw his guilty plea (ground five). See id. at 18-23. On

February 13, 2018, the postconviction court denied Leister’s request for

postconviction relief, as to the five claims. See id. at 35-135. On appeal, Leister

filed a pro se brief, see Doc. 8-9 at 2, and the State filed a notice that it did not

intend to file an answer brief, see Doc. 8-10 at 2. On June 6, 2019, the First

DCA affirmed the court’s denial of postconviction relief per curiam, see Doc. 8-

11 at 3, and on August 15, 2019, the court issued the mandate, see id. at 2.

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 [Leister’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)).

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.

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).

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

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

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

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

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

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

under 28 U.S.C. § 2254(d).

B. Ineffective Assistance of Trial 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 v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). 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. Grounds One and Six

As grounds one and six, Leister asserts that counsel (Assistant Public

Defender Quentin Till, Florida Bar #121330) failed to request a competency

hearing upon Leister’s return from involuntary hospitalization. See Petition at

15-19, 27; Reply at 2. Leister raised these ineffectiveness claims in his Rule

3.850 motion (ground one). See Doc. 8-8 at 7-9. The postconviction court denied

the Rule 3.850 motion with respect to the claim, stating in pertinent part:

Defendant claims counsel was ineffective for

failing to request a competency hearing upon

Defendant’s return from involuntary hospitalization.

Defendant further asserts the parties never agreed to

have the Court make a determination regarding

Defendant’s competency based solely on the treatment

facility’s report, and the Court erroneously assumed

that the issue of Defendant’s competency had been

stipulated by both parties.

Defendant’s claim is refuted by the record.

Contrary to Defendant’s assertion, the Court held a

competency hearing upon Defendant’s return from

involuntary hospitalization and the parties did not

contest Defendant’s competency. (Ex. D.)[4] The Court

had the report finding Defendant competent to proceed

and had reviewed the findings included in the report.

That report was entered into evidence upon

stipulation by the parties. (Ex. D at 5-6.) Both parties

indicated they did not wish to present any other

evidence on the issue of Defendant’s competency. (Ex.

D at 5-6.) Based thereon, the Court found Defendant

competent to proceed. (Ex. D at 3-6.)

4 See Doc. 8-8 at 55-62.

That hearing and the Court’s determination

that Defendant was competent to proceed were

sufficient to satisfy the hearing requirements provided

in Florida Rule of Criminal Procedure 3.212. See

Merriell v. State, 169 So. 3d 1287, 1288-89 (Fla. 1st

DCA 2015) (finding trial court made an independent

determination of competency when, at the competency

hearing, the court had the competency evaluation,

reviewed the evaluation, and found the defendant

competent to proceed). Further, as stated above, the

parties did not contest Defendant’s competency and

stipulated to the competency report being entered into

evidence. Based on the foregoing, the Court finds

counsel was not ineffective as alleged by Defendant in

Ground One.

Though not specifically raised by Defendant, it

is important to note, however, the Court did not enter

a written order adjudicating Defendant competent to

proceed, as required by Rule 3.212. However, in

addressing this same error in other cases, the

appellate court has simply remanded for the trial court

to enter a nunc pro tunc order adjudicating the

defendant competent to proceed. Merriell, 169 So. 3d

at 1289; Powell v. State, 28 So. 3d 958, 958 (Fla. 1st

DCA 2010). The failure to enter a written order in the

instant case does not constitute fundamental error and

Defendant was not prejudiced by any failure of counsel

to request such order. Further, the issue should have

been raised on direct appeal. Accordingly, Ground One

is denied.

Id. at 36-37. The First DCA affirmed the postconviction court’s denial of relief.

See Doc. 8-11 at 3.

To the extent that the appellate court decided Leister’s claims on the

merits,5 the Court will address the claims 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 claims 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, Leister is not entitled

to relief on the basis of these ineffectiveness claims.

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

not entitled to deference, Leister’s ineffectiveness claims are without merit

because 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 presumption that

counsel’s performance was reasonable is even stronger when, as in this case,

counsel is an experienced criminal defense attorney.6 The inquiry is “whether,

5 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.

6 “When courts are examining the performance of an experienced trial counsel,

the presumption that his conduct was reasonable is even stronger.” Chandler v.

United States, 218 F.3d 1305, 1316 (11th Cir. 2000) (en banc); see Franks v. GDCP

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

judgments.’” Rompilla v. Beard, 545 U.S. 374, 381 (2005). Thus, Leister 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

Warden, 975 F.3d 1165, 1176 n.1 (11th Cir. 2020); Williams v. Head, 185 F.3d 1223,

1229 (11th Cir. 1999) (noting “[i]t matters to our analysis” whether the attorney is an

experienced criminal defense attorney). Quentin Till was admitted to the Florida Bar

in 1969. See https://www.floridabar.org. Thus, at the time of the January 23, 2009

competency hearing, Till had been practicing criminal defense law for almost thirty

years.

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

done.”) (citation omitted).

A brief chronology relating to the competency issue follows. On March

31, 2008, Assistant Public Defender Hanania filed a Suggestion of Mental

Incompetence to Proceed, requesting that the court direct one or more court-

appointed mental health experts to determine Leister’s mental competence to

proceed and report their findings to the court. See Doc. 8-1 at 50-52. On May

16, 2008, the court determined that Leister was incompetent to proceed and

met the criteria for commitment to a Florida Department of Children and

Families (DCF) mental health treatment facility. See id. at 58. On October 14,

2008, DCF sent a letter to the court, stating in pertinent part:

Enclosed is the current competency evaluation on the

above referenced individual, prepared by his

treatment team at Florida State Hospital.

As indicated in the enclosed evaluation, the

professional treatment staff at this facility [is] of the

opinion that this resident is competent to proceed and

no longer meets the criteria for continued involuntary

commitment. The resident is ready to be returned to

your jurisdiction for a hearing within thirty days of

receipt of this report, as required in Rule 3.212(c)(6),

Florida Rules of Criminal Procedure.

Id. at 61 (emphasis deleted).7 The court addressed the competency issue at a

7 See Petition at 28 (“After 6 months of treatment and competency groups[,]

the hospital removed the involuntary hold and returned [Leister] to the county jail

finding him competent to proceed.”).

January 23, 2009 hearing, at which Leister and counsel Till were present. See

Doc. 8-8 at 57. At the hearing, Till referenced the DCF letter and explained

his concerns, stating in pertinent part:

Your Honor, I inherited this case on January 6th

when I went with the Public Defender’s Office.

Mr. Leister is charged with second-degree

murder. He was sent to Florida State Prison in

October. There is a letter addressed to you, October

14th, Your Honor, along with a report saying that he

is competent to proceed and no longer meets the

criteria for continued involuntary commitment.

Since that time[,] he has been seen by Dr. Miller,

who -- I’m asking for about a two-week continuance

because Dr. Miller in his recent evaluation of Mr.

Leister talks about still continuing with insanity, so

has provided me a report or the office a report. I want

to talk to him in a little bit more detail to see whether

to proceed with an insanity defense.

I do not see if anything has ever been done with

this case as far as preparing it for trial. There are no

depositions, so it looks like we’re starting from scratch.

So[,] what I’m asking for is I’ll get with Mr.

Moody, who is going to be handling it for the state, but

maybe a two-week continuance to let me find out

whether my office does have -- has done something in

regard to the preparation of this case for trial and then

figure out where we go with the case and then maybe

to setting it sometime in the -- I don’t mean quick

future, but give us time to start working on discovery.

There are in the report from Florida State

[Hospital], there’s a lot of concerns and

recommendations by the institution regarding how

Mr. Leister is to be treated here pending [the] outcome

of his case. There may be some suicidal impulses they

talk about. He needs to continue on with his

medication that they have -- have thought that he

needed to be taking at this time.

So[,] I’ll go over to the jail and burn them a copy

of this order to make sure that they are doing their job

pretrial wise with Mr. Leister.

Id. at 57-58. The following colloquy then ensued:

THE COURT: One thing is since the hospital

says he’s competent, apparently, but Dr. Miller says

he’s competent but insane, we should go ahead and

rule on the competency issue today because there is no

evidence of any real --

MR. TILL: Anything otherwise.

THE COURT: Right.

[PROSECUTOR]: Maybe I misunderstood Mr.

Till then. I thought he was contesting it, but …

MR. TILL: No, no, so …

[PROSECUTOR]: You’re not contesting

competency?

MR. TILL: No, at this time, Your Honor, we’re

not.

[PROSECUTOR]: I thought…

THE COURT: So[,] we can go ahead and

stipulate this report into evidence?

MR. TILL: Yes, Your Honor, we can.

[PROSECUTOR]: Yes.

THE COURT: I’ll admit the report signed by Dr.

Robert Chipwood, the senior psychologist of the

hospital, with a cover letter from Michael McCorman

dated October 14th, 2008, into evidence as the Court

Exhibit No. 1. And does either side have anything

other than that to offer on the issue of competency?

MR. TILL: No, Your Honor.

[PROSECUTOR]: No, Your Honor.

THE COURT: Based upon that[,] I find that Mr.

Leister is competent, and I will pass the case to

February 4th for a status hearing, and then both sides

can see which way they want to go here.

Id. at 59-60.

On this record, Leister has failed to carry his burden of showing that his

counsel’s representation fell outside that range of reasonable professional

assistance. Even assuming arguendo deficient performance by defense counsel,

Leister has not shown any resulting prejudice. He has not shown that a

reasonable probability exists that the outcome of the case would have been

different if counsel had acted as Leister asserts he should have. His

ineffectiveness claims are without merit since he has shown neither deficient

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

federal habeas relief on the ineffectiveness claims raised in grounds one and

six.

B. Grounds Two and Seven

As grounds two and seven, Leister asserts that counsel (Michael Bateh,

Florida Bar #506737) was ineffective because he misadvised Leister to enter a

guilty plea to second degree murder when he knew that Leister was

incompetent and under the influence of psychotropic drugs and blood pressure

medication. See Petition at 15-16, 19-21, 27; Reply at 2. Leister raised these

ineffectiveness claims in his Rule 3.850 motion (ground two). See Doc. 8-8 at 9-

11. The postconviction court denied the Rule 3.850 motion with respect to the

claims, stating in pertinent part:

Defendant claims counsel, Michael Bateh, was

ineffective when he affirmatively misadvised

Defendant to accept a plea. Defendant reiterates the

claim raised in Ground One and further claims that

counsel advised him to lie during the plea colloquy

when the Court inquired as to whether Defendant was

taking any medication. He asserts his use of

psychotropic medications rendered him mentally

incompetent to enter a plea.

During the plea colloquy, Defendant stated

under oath that he was thinking clearly[,] and he was

not under the influence of any alcohol or any

medication, drug or any other substance or anything

that could interfere with his clear thought. (Ex. E at

6.)[8] Further, the Court stated, “[y]ou certainly

appear to be thinking quite clearly.” (Ex. E at 6.)

Additionally, Defendant stated he read everything on

the Plea of Guilty form (“Plea Form”), he understood

everything on the Plea Form, his attorney went over

8 See Doc. 8-2 at 34.

everything on the Plea Form with him and answered

all of his questions and fully explained the Plea Form,

and he signed the Plea Form after reading and

understanding it. (Ex. E at 7-8.)[9] In the Plea Form,

Defendant stated the Plea Form “is true and correct in

all respects.” (Ex. A at 2.)[10] He also stated, “I am not

under the influence of any substance, drug, or

condition (physical, mental, or emotional), which

interferes with any appreciation of the entire

agreement into which I am entering and all

consequences thereof.” (Ex. A at 2.) During the plea

colloquy, the Court also discussed Defendant’s hearing

difficulty with him and informed Defendant to let the

Court know if he did not hear or understand anything

the Court said. (Ex. E at 6-7.)[11]

Based on Defendant’s clear affirmance that he

was not under the influence of any medication, drug,

or other substance, which wholly contradicts his

present postconviction claim, the Court finds

Defendant is not entitled to relief. See Russ v. State,

937 So. 2d 1199, 1200 (Fla. 1st DCA 2006) (upholding

trial court’s summary denial of Defendant’s claim that

his plea was involuntary because he was under the

influence of psychotropic medication at the time of the

plea because Defendant categorically denied being

under the influence of medication at his plea hearing).

Further, of note, at the hearing on Defendant’s Motion

to Withdraw Plea, Defendant stated when he entered

his plea, he understood everything that was taking

9 See Doc. 8-2 at 35-36.

10 See Doc. 8-2 at 22.

11 See Doc. 8-2 at 34-35.

place and everything that the judge was explaining to

him. (Ex. F at 35.)[12]

Accordingly, Ground Two is denied.

Id. at 37-38. The First DCA affirmed the postconviction court’s denial of relief.

To the extent that the appellate court decided Leister’s claims on the

merits,13 the Court will address the claims 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 claims 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, Leister is not entitled

to relief on the basis of these ineffectiveness claims.

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

deference, Leister’s ineffectiveness claims are still meritless. “A plea

conference is not a meaningless charade to be manipulated willy-nilly after the

fact; it is a formal ceremony, under oath, memorializing a crossroads in the

case,” and “[w]hat is said and done at a plea conference carries consequences.”

Scheele v. State, 953 So. 2d 782, 785 (Fla. 4th DCA 2007) (citation omitted). A

12 See Doc. 8-8 at 115.

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

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

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also Kelley v. State,

109 So. 3d 811, 812-13 (Fla. 1st DCA 2013) (holding a court may deny

postconviction relief on claims that are refuted by sworn representations the

defendant made to the trial court).

At the October 23, 2013 plea hearing, Leister stated that he was thinking

clearly and was not under the influence of any medication, drug, or any other

substance that could interfere with his ability to understand the plea. See Doc.

8-2 at 34; see also id. at 22. Notably, the trial judge stated, “You certainly

appear to be thinking quite clearly.” Doc. 8-2 at 34. Approximately one month

later, Leister filed a pro se motion to withdraw the plea. See id. at 24. In the

motion, Leister asserted that counsel failed to provide him with all of the facts

(specifically exculpatory evidence that allegedly would have supported an

insanity defense at trial), and requested that the court permit him to withdraw

his plea and proceed to trial. See id. Additionally, Leister filed a counseled

motion to withdraw in February 2014. See id. at 55-56. At a hearing on the

motion, counsel Bateh affirmed that he and Till (Leister’s prior attorney)

discussed the facts with Leister, reviewed the evidence with him, and gave him

copies of the discovery associated with the case. See Doc. 8-8 at 90-91, 98-99.

Also, Leister confirmed that he understood what transpired at the plea

hearing. See id. at 115. The court denied Leister’s request to withdraw the plea,

finding that “there is not good cause for withdrawal of the plea.” Id. at 130.

Even assuming arguendo deficient performance by defense counsel for

failing to act as Leister suggests, Leister 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 Leister had proceeded to trial, and the jury had

found him guilty, he would have faced a possible term of life imprisonment.

See Doc. 8-2 at 85, Judgment. His ineffectiveness claim is without merit since

he has shown neither deficient performance nor resulting prejudice.

Accordingly, Leister is not entitled to federal habeas relief on the

ineffectiveness claims raised in grounds two and seven.

C. Grounds Three and Eight

As grounds three and eight, Leister asserts that counsel (Assistant

Regional Counsel Amanda Kuhn, Florida Bar #16308) was ineffective because

she failed to file an adequate motion to withdraw the plea “on the premise that

he had not been found competent to proceed.” Petition at 21-22, 27, 31; Reply

at 2. Leister raised these ineffectiveness claims in his Rule 3.850 motion

(ground three). See Doc. 8-8 at 11-12. The postconviction court denied the Rule

3.850 motion with respect to the claims, stating in pertinent part:

Defendant claims, Amanda Kuhn, was

ineffective for failing to file an adequate Motion to

Withdraw Plea. Specifically, Defendant asserts

counsel should have argued that Defendant had not

been found competent to proceed where the Court

never made a determination on the record that

competency had been restored. Based on the reasoning

stated above in Ground One, this claim is denied.

Id. at 39. The First DCA affirmed the postconviction court’s denial of relief.

To the extent that the appellate court decided Leister’s claims on the

merits, the Court will address the claims 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 claims 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, Leister is not entitled

to relief on the basis of these ineffectiveness claims.

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

deference, Leister’s ineffectiveness claims are still without merit because the

record supports the postconviction court’s conclusion. Counsel cannot be

deficient for failing to raise a meritless argument.14 See Diaz v. Sec’y for the

Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005). As such, Leister 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, Leister has not shown any resulting prejudice.

Thus, his ineffectiveness claims are without merit since he has shown neither

deficient performance nor resulting prejudice. Accordingly, Leister is not

entitled to federal habeas relief on the ineffectiveness claims raised in grounds

three and eight.

D. Ground Five

As ground five, Leister asserts that counsel Bateh was ineffective

because he interfered with Leister’s right to withdraw his plea. See Petition at

15, 27, 31; Reply at 2. Leister raised this ineffectiveness claim in his amended

Rule 3.850 motion, as ground five. See Doc. 8-8 at 18. The circuit court denied

his request for postconviction relief with respect to the claim, stating in

pertinent part:

Defendant claims, Michael Bateh, was

ineffective when he interfered with Defendant’s right

to withdraw his previously entered guilty plea. He

asserts he entered his plea based on counsel’s

presentation of the case and the promise he would

pursue an insanity defense. Defendant states counsel

was ineffective for not consulting with him before

14 See Doc. 8-8 at 60 (“I find that Mr. Leister is competent.”).

abandoning the agreed upon insanity defense and for

not revealing important mitigating evidence to

support the insanity defense. Defendant states that

after the plea hearing, he was made aware of an

incident which occurred about two weeks before the

crime in this case where the police were called to his

residence because he was threatening to harm himself.

Defendant avers counsel knew of this incident at the

time of the plea. He opines the prior incident could

have been used to show his state of mind before the

attack on his wife, and claims had he known of this

incident before he entered his plea, he would not have

entered his plea and would have opted to proceed with

an insanity defense.

To the extent Defendant claims counsel was

ineffective for abandoning the insanity defense

without consulting with Defendant, this claim is

refuted by the plea colloquy and the Plea Form. The

Plea Form, which Defendant acknowledged in open

court at the time of the plea, is essentially Defendant’s

written testimony to the trial court regarding his

understanding of his plea. (Ex. A; Ex. E at 7-8.)

Moreover, Defendant stated he read the Plea Form,

his attorney went over everything on the form with

him and answered his questions and fully explained

the form, and he signed the form after reading and

understanding it. (Ex. E at 7-8.) Within Defendant’s

plea agreement, Defendant stated:

My attorney and I have read this

agreement regarding my guilty plea

together in private, and my attorney has

explained all portions of this agreement to

my complete understanding and

satisfaction. We have fully discussed all

aspects of the case, including all possible

defenses to all charges, including self-

defense and any defense based upon any

disability, disease, insanity, or

intoxication. My attorney has given me

the opportunity to ask questions and has

answered all of my questions fully and

completely. My attorney has taken all

actions requested by me, or has explained

to my satisfaction and agreement why

such actions should not be taken, and I

concur with my attorney’s decisions in

that regard. I am completely satisfied with

the services rendered by my attorney on

my behalf in this case.

(Ex. A.)

During the plea colloquy, Defendant further

testified he was satisfied with his attorney’s

representation[,] and he was entering the plea on his

own free will. (Ex. E at 10-11.) The Court explained

and Defendant acknowledged the rights he was giving

up by entering a plea. (Ex. E at 12-14.) Additionally,

at the time he entered his plea, Defendant was aware

there was evidence available to support an insanity

defense. Defendant knew a doctor had found he was

insane at the time of the offense. (Ex. F at 38-39.)

By pleading guilty to an offense, a defendant

waives his or her right “to have counsel investigate or

put forward a defense, including filing motions to

suppress.” Clift v. State, 43 So. 3d 778, 779 (Fla. 1st

DCA 2010). “Where a defendant enters a plea and

swears that he is satisfied with his counsel’s advice, he

may not later attack counsel’s effectiveness for failure

to investigate or defend the charge.” Id.[;] See also

Smith v. State, 41 So. 3d 1037, 1040 (Fla. 1st DCA

2010). Further, a defendant “cannot assert that his

plea was not knowingly and voluntarily entered where

he concedes he was well aware of his counsel’s

deficiencies prior to the entry of his plea.” Davis v.

State, 938 So. 2d 555, 556-57 (Fla. 1st DCA 2006).

Moreover, a defendant may not seek to go behind his

sworn testimony at a plea hearing in a postconviction

motion. Stano v. State, 520 So. 2d 278, 280 (Fla. 1988);

Dean v. State, 580 So. 2d 808, 810 (Fla. 3d DCA 1991);

Iacono v. State, 930 So. 2d 829, 831 (Fla. 4th DCA

2006).

Even if counsel did not inform Defendant about

his change in tactics, Defendant entered his plea

knowing he was abandoning any defenses, including

an insanity defense. The record shows Defendant

knowingly, intelligently[,] and voluntarily entered his

plea and counsel was not ineffective, as alleged, for

abandoning an insanity defense without consulting

with Defendant. (Ex. A; Ex. E.) Further, Defendant

may not go behind his sworn testimony during the plea

hearing and now raise claims alleging counsel was

ineffective. See Stano, 520 So. 2d at 279.

To the extent Defendant claims Defense Counsel

was ineffective for failing to inform him of facts that

would have supported an insanity defense, and for

failing to move to withdraw his plea, these claims are

also refuted by the record. First, Defendant filed a

Motion to Withdraw Plea and had a full hearing on the

Motion with an opportunity to testify and present his

argument to the Court. (Ex. F.) Therefore, Defendant

was not prejudiced by counsel’s failure to move to

withdraw his plea.

Second, the record of the Motion to Withdraw

Plea hearing refutes Defendant’s claim that counsel

was ineffective for failing to inform him of facts that

would have supported an insanity defense. At the

hearing, Michael Bateh, Esquire, testified that he and

Defendant’s prior attorney [(Quentin Till)] discussed

all the facts with Defendant, gave him copies of his

discovery, went over all the evidence with him in this

case, and never declined to give Defendant discovery.

(Ex. F at 10-11, 16-20, 23-24.) The discovery provided

included all police reports, medical examiner reports,

pictures, and doctor evaluations. (Ex. F at 11.) Mr.

Bateh testified Defendant had a lot of concern about

two particular officers that came out to Defendant’s

house prior to the actual incident. (Ex. F at 20-21.) Mr.

Bateh indicated they spoke with those officers and,

despite there being evidence they had been to

Defendant’s house, neither officer remembered going

to the house or an incident with Defendant. (Ex. F at

20-21.) Mr. Bateh also testified that the doctors who

evaluated Defendant and found him insane were

provided the arrest and booking reports, supplemental

reports, videos, and anything that would help them in

their understanding of Defendant and the case itself.

(Ex. F at 46.)

At the hearing, Defendant testified that after he

entered his plea he saw some discovery he had not

seen before, and indicated if he had seen it before, he

would not have entered his plea and would have

pursued a not guilty by reason of insanity defense. (Ex.

F a[t] 31-32.) He went on to testify that the discovery

he received was a supplemental report that included

statements from a neighbor regarding Defendant

going to his house and claiming his wife and daughter

were trying to poison him. (Ex. F at 32, 35-36.) He also

testified that the supplement showed that when police

arrived at his home following the instant offense, he

was telling them to shoot him. (Ex. F at 36.) The Court

found Defendant did not show there was any truth to

his allegations and denied his Motion to Withdraw

Plea. (Ex. F at 50-51.)

The Court clearly did not believe the allegations

made by Defendant in the Motion to Withdraw Plea

hearing, and though the prior incident at issue at that

hearing was different than the prior incident at issue

in this ground, the testimony regarding pre-trial

discovery, pre-trial investigation, and the doctor’s

evaluations is applicable to the instant Motion as well.

Based on the testimony from the Motion to Withdraw

Plea hearing, Defendant was provided all discovery

prior to his plea, and the doctors who evaluated

Defendant were provided with all reports that would

help in their evaluations. Further, Mr. Bateh testified

regarding his investigation into an event that occurred

before the offense in the instant case, and indicated

the officers who purportedly came to Defendant’s

house could not recall the incident. It cannot be

conclusively determined if that is the same incident as

the one at issue in the instant ground, however, the

testimony regarding Mr. Bateh’s investigation into

such incident is relevant to show that he was [sic]

investigated Defendant’s prior history. Based on the

foregoing, the Court finds Defendant[] cannot

establish counsel was ineffective in the manner

alleged in Ground Five.

Of note, in his present Motion, Defendant states

he learned of the incident upon which this ground is

based “only days after he entered his plea.” (Def.’s Mot.

For Leave to Amend his Mot. For Postconviction Relief

Under Rule 3.850, 2.) Defendant entered his plea on

October 23, 2013, and the Court heard his Motion to

Withdraw Plea on February 19, 2014. (Exs. A; F.)

Defendant had the opportunity to raise this issue

before the Court at the hearing when the Court

inquired about the basis for his Motion to Withdraw

Plea, but Defendant did not state anything about

learning the police had been called to his house

because he was threatening to harm himself.

Id. at 39-43. The First DCA affirmed the postconviction court’s denial of relief.

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

merits, 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, Leister 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, Leister’s ineffectiveness claim is meritless. Leister 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, Leister has not shown any resulting prejudice.

Thus, his ineffectiveness claim is without merit since he has shown neither

deficient performance nor resulting prejudice. Accordingly, Leister is not

entitled to federal habeas relief on the ineffectiveness claim raised in ground

five.

E. Grounds Four and Nine

As grounds four and nine, Leister asserts that the cumulative effect of

his counsels’ errors (as alleged in grounds one, two, three, and five) deprived

him of a fair trial. See Petition at 23, 27; Reply at 2. Leister raised these

ineffectiveness claims in his Rule 3.850 motion (ground four). See Doc. 8-8 at

12-13. The postconviction court denied the Rule 3.850 motion with respect to

the claims, stating in pertinent part:

Defendant claims the cumulative effect of

counsel’s errors entitle[s] him to relief. Based on the

reasoning stated above in Grounds One, Two, and

Three, and below in Ground Five, Defendant’s claims

are meritless or do not meet the Strickland standard

for ineffective assistance of counsel. Therefore, the

Court finds Defendant’s claim of cumulative error also

lacks merit. See Parker v. State, 904 So. 2d 370, 380

(Fla. 2005) (“[W]here the individual claims of error

alleged are either procedurally barred or without

merit, the claim of cumulative error also necessarily

fails.”). Accordingly, Ground Four is denied.