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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL L. HARVEY,

Petitioner,

v. Case No. 3:19-cv-1030-MMH-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Michael L. Harvey, an inmate of the Florida penal system,

initiated this action on August 29, 2019,1 by filing a Petition for Writ of Habeas

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

challenges a 2015 state court (Duval County, Florida) judgment of conviction

for aggravated assault on a law enforcement officer (LEO) and possession of a

firearm by a convicted felon. He raises one claim. See Petition at 4-5.

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.

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

Answer in Response to Order to Show Cause (Response; Doc. 9). They also

submitted exhibits. See Docs. 9-1 through 9-10. Harvey filed a brief in reply.

See Reply (Doc. 14). He also submitted exhibits. See P. Exs., Docs. 14-1 through

14-5. This action is ripe for review.

II. Relevant Procedural History

On October 6, 2014, the State of Florida charged Harvey with aggravated

assault on a LEO (count one) and possession of a firearm by a convicted felon

(count two) in Duval County case number 2014-CF-8428. See Doc. 9-1 at 71.

Harvey entered a guilty plea to the charges on October 26, 2015. See id. at 50-

51, Plea of Guilty and Negotiated Sentence; 74-100, Transcript of the Plea

Proceeding (Plea Tr.). That same day, the court sentenced Harvey in

accordance with the plea agreement to a term of imprisonment of fifteen years

with a fifteen-year minimum mandatory for count one, and a term of

imprisonment of fifteen years with a three-year minimum mandatory, to run

concurrently with the term imposed for count one. See id. at 52-58, Judgment;

Plea Tr. at 90. He did not appeal. See https://core.duvalclerk.com, Michael Lord

Williamson Harvey v. State of Florida, case no. 2014-FC-8428 (4th Fla. Cir.

Ct.).

On November 25, 2015, Harvey filed a pro se motion to withdraw the

plea. See Doc. 9-1 at 59-62. He filed an amended motion on December 29, 2015.

After a hearing, the court denied Harvey’s request to withdraw the plea on

January 4, 2016. See id. at 67. He did not appeal. See

https://core.duvalclerk.com, Michael Lord Williamson Harvey v. State of

Florida, case no. 2014-FC-8428 (4th Fla. Cir. Ct.).

On October 4, 2016, Harvey filed a pro se motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. See Doc. 9-1 at 5-10. On

June 22, 2017, the court dismissed the motion without prejudice as facially

insufficient and granted Harvey leave to file a facially sufficient motion. See

id. at 14-15. He filed an amended motion on August 22, 2017. See id. at 16-34.

In his amended Rule 3.850 motion, Harvey asserted that his trial counsel was

ineffective because he: failed to provide Harvey with “real notice of the true

nature of the charges against him” (ground one), id. at 18; induced him to plead

guilty (ground two), see id. at 20; failed to file a motion to withdraw the plea

(ground three), see id. at 23; failed to file a motion to suppress based on

assertions related to an illegal stop in violation of the Fourth Amendment,

(ground four), see id. at 26; and gave erroneous advice related to the plea

agreement (ground five), see id. at 34. On May 30, 2018, the postconviction

court denied Harvey’s request for postconviction relief, see id. at 40-49, and on

July 3, 2018, denied his motion for rehearing, see id. at 112-13. On appeal,

Harvey filed a pro se brief, see Doc. 9-2 at 2, and the State filed a notice that it

did not intend to file an answer brief, see Doc. 9-3 at 2. On May 8, 2019, the

First District Court of Appeal (First DCA) affirmed the court’s denial of

postconviction relief per curiam, see Doc. 9-4 at 3, and on July 22, 2019, issued

the mandate, see id. at 2.

On August 27, 2019, Harvey filed a pro se motion to withdraw the plea

pursuant to Florida Rules of Criminal Procedure 3.170(l) and 3.850, asserting

manifest injustice due to counsel’s ineffectiveness. See Doc. 9-5 at 5-21. The

court denied the motion as untimely and successive on September 12, 2019.

See id. at 22-23. The First DCA affirmed the court’s denial per curiam on June

22, 2020, and on July 20, 2020, issued the mandate. See

onlinedocketsdca.flcourts.org, Michael Harvey v. State of Florida, 1D19-3750

(Fla. 1st DCA).

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 [Harvey’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.

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

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).

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). 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

Harvey asserts that counsel (Travis A. Reinhold, Florida Bar #140392

and Tyler Vincent Gates, Florida Bar #68816) failed to give him “‘real’ notice”

of the “‘true nature’ of the charges” against him. Petition at 4; Reply at 3. He

states in pertinent part:

I was initially illegally stopped for loitering and

prowling (no PC [(probable cause)] found), which

resulted in a[n] aggr[avated] assault with a deadly

weapon on a LEO and poss[ession] of a firearm by a

felon. The record will reflect that the officer had no PC

or articulable suspicion. At arraignment[,] the legal

scope of duties charge (loitering/prowling) was

dropped. The defendant inquired to counsel before

pleading about the of[ficer] not being in his legal scope

of duties. Counsel said it wasn’t a trial def[ense].

Id. Harvey raised the ineffectiveness claim in his Rule 3.850 motion (ground

one). See Doc. 9-1 at 18-20. The postconviction court denied the Rule 3.850

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

Defendant alleges counsel was ineffective for

failing to provide him “notice of the true nature of the

charges against him.” Defendant maintains he advised

counsel that Officer R.C. Santoro (“Officer Santoro”)

was not in the legal scope of his duties as is required

for aggravated assault on a law enforcement officer

and that Officer Santoro’s stop of Defendant amounted

to an illegal [T]erry[4] stop while he was in pursuit of

another person, Danielle Church (“Church”).

Defendant further avers Church never saw him with

[a] weapon and was never in his vehicle. Defendant

asserts Officer Santoro had no articulable suspicion

Defendant committed a crime and there was no

justification for detaining or frisking Defendant

because he was in the company of someone suspected

of having committed a crime. Defendant states counsel

advised him that this was not a legal defense.

Moreover, Defendant asserts the Information is

missing any reference [to] the essential element that

the officer was within the scope of his legal duties.

4 Terry v. Ohio, 392 U.S. 1 (1968).

Initially, this Court notes that Defendant’s

charging Information sufficiently included all

essential elements of the charge, including the

allegation that Officer Santoro was “engaged in the

lawful performance of his duty.” (Ex. F.)[5] To the

extent Defendant is alleging this allegation to be

insufficient, this Court finds Defendant’s allegation

equally meritless. In Defendant’s plea form, which he

signed in agreement thereto, Defendant acknowledged

counsel advised him “of the nature of all the charges

against me” and “all other facts essential to a full and

complete understanding of all offenses” with which

Defendant was charged. (Ex. A.)[6] He further

acknowledged that he and counsel had discussed all

defenses. (Ex. A.) Moreover, Defendant stated he was

satisfied with counsel and counsel had answered all

his questions to Defendant’s satisfaction. (Ex. G at 10-

11.)[7]

Additionally, it is clear from the Arrest and

Booking Report that Officer Santoro was originally

pursuing Church, whom the officer knew was a known

prostitute. (Ex. H.)[8] It was only after the Defendant,

who was in the driver’s seat of a vehicle, informed

Officer Santoro he had no license because it was

suspended that Officer Santoro asked him to step out

of the vehicle. (Ex. H.)[9] After that time, Defendant

fled and pointed the gun at Officer Santoro while

fleeing. (Ex. H.) Based on these facts, it is likely a

motion to suppress would have been unsuccessful,

despite Church’s purported testimony. Thus, this

5 See Doc. 9-1 at 71, Information.

6 See Doc. 9-1 at 50, Plea of Guilty and Negotiated Sentence.

7 See Plea Tr. at 84.

8 See Doc. 9-1 at 101-03, Arrest and Booking Report.

9 See Doc. 9-1 at 103 (“The suspect stated that he did not have a driver’s

license and it was suspended.”); see also P. Ex., Doc. 14-3 at 3.

Court finds counsel was not deficient and finds no

reasonable probability Defendant otherwise would

have forgone his negotiated plea to face substantially

more prison time. Accordingly, this Court finds

Defendant is not entitled to relief on this Ground.

Id. at 42-43 (emphasis added). The First DCA affirmed the postconviction

court’s denial of relief. See Doc. 9-4 at 3.

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

merits,10 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, Harvey is not entitled

to relief on the basis of the ineffectiveness claim.

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

not entitled to deference, Harvey’s ineffectiveness claim is without merit

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

strong presumption in favor of competence when evaluating the performance

10 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.

prong of the Strickland ineffectiveness inquiry. See Anderson v. Sec’y, Fla.

Dep’t of Corr., 752 F.3d 881, 904 (11th Cir. 2014). The inquiry is “whether, in

light of all the circumstances, the identified acts or omissions were outside the

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

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

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

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

establish that no competent attorney would have taken the action that his

counsel chose.

Notably, the test for ineffectiveness is neither whether counsel could

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

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

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

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

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

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

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

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

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

done.”) (citation omitted).

At the October 26, 2015 plea hearing, counsel Gates stated:

For the record, Tyler Gates on behalf of Mr. Harvey.

Judge, we represent Mr. Harvey in case number 2014-

008428. Judge, we’re here for jury selection, we have

reached a disposition in that case, and Judge just to

give you the big picture, Mr. Harvey did have PRR

[(prison release reoffender)] that applies to the

aggravated assault on a law enforcement officer as

charged in my case. As required under the prison

release reoffender statute, which the State was

unwilling to waive, I have spoken to Mr. Miller, Ms.

Kirch, and Mr. Guy, and none of them are willing to

waive the PRR, so therefore he at this point has

decided to enter a plea of guilty to the 15 year

minimum mandatory in case 2014-CF-008428. So, he

would be sentenced to and adjudicated guilty of Count

1, sentenced to 15 years, with 128 days credit, as a

prison release reoffender; and Count 2, possession of a

firearm by a convicted felon, would be 15 years, with

128 days credit, that would include a three year

minimum mandatory as charged. There would be

mandatory court costs. And both counts would be run

concurrent.

Doc. 9-1 at 77-78. The court advised Harvey that he faced a maximum penalty

of thirty years of imprisonment with a fifteen-year minimum mandatory as a

prison release reoffender on count one, and thirty years of imprisonment with

a three-year minimum mandatory on count two. See id. at 79-80. Harvey

affirmed that he understood the negotiated plea agreement for fifteen years of

imprisonment. See id. at 80-81. Counsel stated that there was no DNA

evidence that would exonerate Harvey. See id. at 81-82. The court explained:

By entering your plea today on this one case

only, you’re waiving your right to trial by jury, to have

your attorney assist you during that trial; to compel

witnesses to attend on your behalf, and to confront and

cross-examine witnesses who are presented against

you; the right to remain silent, and require the State

to prove your guilt beyond a reasonable doubt; and the

right to appeal all matters relating to the judgment in

your case, including the issues of guilt or innocence.

Do you understand that?

Id. at 82. Harvey affirmed that he understood he was waiving the above-

described rights. See id. The following colloquy ensued.

THE COURT: Has anyone threatened you,

coerced you, or made you any promises to get you to

enter this plea?

THE DEFENDANT: No, ma’am.

THE COURT: Are you under the influence today

of any substance or mental condition that would affect

your ability to understand?

THE DEFENDANT: No, ma’am.

THE COURT: By entering your pleas of guilty,

you’re acknowledging that you are, in fact, guilty of

both charges, is that correct?

THE DEFENDANT: Yes, ma’am.

THE COURT: What is the highest gr[ade] you

completed in school?

THE DEFENDANT: I got two years college, high

school[,] and two years of college.

THE COURT: So, you’re able to read and write?

THE DEFENDANT: Yes, ma’am.

THE COURT: Is this your signature on the plea

form?

THE DEFENDANT: Yes, ma’am.

THE COURT: Did your attorney go over the

form with you in detail?

THE DEFENDANT: Yes, ma’am.

THE COURT: Did he answer all of your

questions?

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you have any other questions

you need to ask your attorney or the Court?

THE DEFENDANT: No, ma’am.

THE COURT: And are you fully satisfied with

his representation?

THE DEFENDANT: Yes, ma’am.

Id. at 83-84. At the court’s request, the prosecutor provided a factual basis for

the plea, stating:

If this case were to proceed to trial, as to Count 1[,] the

State would be able to prove beyond a reasonable

doubt that Michael Lordwilliamson Harvey on

September 3, 2014, in Duval County, Florida, did

intentionally threaten by word or act, with a deadly

weapon, with a firearm, to do violence to Officer R.C.

Santoro, Jr., a law enforcement officer engaged in the

lawful performance of his duties, having at the time an

apparent ability to do violence, and did point a

handgun, which created a well-founded fear in Officer

R.C. Santoro, Jr., that violence was imminent, and

while committing or attempting to commit the

aforementioned aggravated assault, Michael

Lordwilliamson Harvey did actually possess a firearm,

contrary to the provisions of Florida Statutes.

As to Count 2, the State would be ready to prove

beyond a reasonable doubt that Michael

Lordwilliamson Harvey, on September 3, 2014, in

Duval County, Florida, did actually possess a firearm,

to wit, a handgun, having been convicted of a felony in

the Courts of the State of Florida, to wit, aggravated

fleeing, in the Circuit Court of and for Duval County

Florida, on September 16, 2013, contrary to the

provisions of Florida Statutes.

Id. at 84-85. With no objections or legal exceptions (for purposes of the plea)

from defense counsel, the court stated:

I do find there is a factual basis for entry of your

plea, and that your plea is freely and voluntarily

entered, with a full understanding of the nature and

consequences of your plea, and I accept your plea.

. . . .

I do find by a preponderance of the evidence that

he meets the criteria to be classified as an habitual

offender under Florida Statute section 775.084, and as

a prison release reoffender under 775.082(9)(a),

therefore the Florida sentencing guidelines will not

apply to his sentence. I find that he is a danger to the

community[,] and it is necessary for the protection of

the public to sentence him on Count 1 as a prison

release reoffender, and Count 2 as a[] habitual

offender.

But[,] I will follow the negotiation. Count 1,

I will adjudicate you guilty, sentence you to serve 15

years as a prison release reoffender, that’s a 15 year

minimum mandatory sentence, with 128 days credit.

Concurrent with that, on Count 2, I will adjudicate you

guilty, sentence you to serve 15 years as a[] habitual

offender with the three year minimum mandatory, and

128 days credit.

. . . .

Okay. So, they will both run concurrent, both the

sentences and the minimum mandatories.

Id. at 85, 89-90 (emphasis added).

“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 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). Notably, at the

October 26, 2015 plea hearing, Harvey acknowledged that he wanted to enter

a guilty plea to both charges and was satisfied with counsel’s representation.

He also stated that he signed and understood the plea form.

On this record, Harvey 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

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

found him guilty of the charges, he would have faced a possible term of

imprisonment of thirty years. See Doc. 9-1 at 52, Judgment; Plea Tr.; Fla. Stat.

§ 784.07(2)(c). His ineffectiveness claim is without merit since he has shown

neither deficient performance nor resulting prejudice. Accordingly, Harvey is

not entitled to federal habeas relief on his ineffectiveness claim in ground one.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Harvey seeks issuance of a certificate of appealability, the undersigned

opines that a certificate of appealability is not warranted. The Court should

issue a certificate of appealability only if the petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make

this substantial showing, Harvey “must demonstrate that reasonable jurists

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

debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further,’” Miller-El, 537 U.S.

at 335-36 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

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

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

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

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

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

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

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

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

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

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

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

WITH PREJUDICE.

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

and dismissing this case with prejudice.

3. If Harvey appeals the denial of the Petition, the Court denies a

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

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

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

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

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

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 12th day of April,

2022.

MARCIA MORALES HOWARD

United States District Judge

Jax-1 4/8

Michael L. Harvey, FDOC #J08957

Counsel of Record

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