Watkins v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TRAVIS DEVON WATKINS,

Petitioner,

v. Case No. 3:19-cv-865-TJC-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Travis Devon Watkins, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition for Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2254. See Doc. 1. Petitioner challenges a 2016 state

court (Duval County, Florida) open plea of guilty and resulting judgment of

conviction for second degree murder with a weapon. Petitioner is serving a

thirty-five-year term of incarceration, to be followed by a ten-year term of

probation. Respondents responded. See Doc. 8 (Resp.).1 Petitioner replied. See

1 Attached to the Response are various exhibits. The Court refers to the exhibits

as “Resp. Ex.”

Doc. 9. This case is ripe for review.2

II. Governing Legal Principles

A. Standard Under AEDPA

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), cert. denied, 137 S. Ct. 1432 (2017). “‘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 for the state court’s

2 “In a habeas corpus proceeding, the burden is on the petitioner to establish

the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,

1318 (11th Cir. 2016) (citing 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) (citation omitted). “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.” Id. The Court finds that

“further factual development” is not necessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

2

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). When 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

3

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.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (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 counsel’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 ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

4

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

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 show that counsel’s performance was

deficient. See id. at 56-59; Lynch v. Sec’y Fla. Dept. 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 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

5

lack of sufficient prejudice, which we expect will often be so, that course should

be followed.” 466 U.S. at 697.

Further, “[t]he 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. As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s

representation was ‘within the wide range of reasonable professional

assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th

Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is

combined with § 2254(d), the result is double deference to the state court ruling

on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans

v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)

(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004).

6

III. Analysis

A. Ground One

Petitioner asserts his trial counsel was ineffective for misadvising

Petitioner about the sentence he would receive upon entering an open plea of

guilty and failing to explain to Petitioner the consequences of entering his plea.

Doc. 1 at 6-9. According to Petitioner, trial counsel advised him that if he

entered the open plea, the trial court would immediately release him from

custody and only sentence him to a probationary term. Id. He also states that

counsel used Petitioner’s wife, Elise Watkins, to coerce him into entering his

plea, and references E. Watkins’s “affidavit” to support that allegation. Id. at 6

n.1. He states that but for trial counsel’s improper coercion tactics, he would not

have pleaded guilty and would have instead proceeded to trial. He also

challenges the trial court’s failure to order the state to file a response to his

amended postconviction motion, which he filed to include E. Watkins’s

“affidavit.”

Petitioner raised this claim in his initial Florida Rule of Criminal

Procedure 3.850 motion for postconviction relief. Resp. Ex. E at 3-11. The trial

court ordered the state to file a response to the Rule 3.850 motion. Id. at 42.

Before the state responded, Petitioner filed a motion for leave to amend his Rule

3.850 motion to include E. Watkins’s “affidavit.” Id. at 47-48. Before the trial

7

court ruled on the motion to amend, the state responded. Id. at 50-55. In its

response, the state recognized the two-prong Strickland standard as controlling

authority and argued this claim should be denied based on Petitioner’s sworn

statements at his plea hearing. Id. The state explained:

Defendant claims his attorney was ineffective for

conveying to him a plea agreement wherein the State

agreed the Defendant would be sentenced to a term of

probation for second degree murder. However, the

record refutes the [D]efendant’s claim. During the plea

colloquy the court ensured the Defendant’s

understanding that there was no agreed upon

disposition or sentence between the Defendant and the

State asking, “[h]as [anyone] promised you anything in

order to get you to enter your plea?” Defendant

answered under oath, “No, your Honor.” During the

plea colloquy the court asked, if the [D]efendant

understood that there was no agreed upon disposition

or sentence between the Defendant and the State of

Florida, Defendant answered under oath “Yes, your

Honor.” Additionally, the Court made certain that

Defendant was aware that the bottom of the guidelines

sentence was 20.55 years, had reviewed the criminal

score sheet with his attorney and fully understood and

comprehended the information contained therein. A

defendant is not entitled to an evidentiary hearing

when the record ·demonstrates that post-conviction

relief is not warranted. Stano v. State, 520 So. 2d 278,

280 (Fla. 1988). Since the record clearly refutes the

Defendant’s claims, his motion should be summarily

denied.

The Florida Supreme Court has ruled that trial

courts should not nullify a defendant’s sworn testimony

when deciding on post-trial motions. Stano, 520 So. 2d

at 279-80. Allowing such backslides in testimony would

inundate the court with instances where a defendant

8

files a motion that says his prior sworn statements to

the court were not true. Id. Other courts have continued

to follow the holding in Stano. In Iacono, the court

reasoned allowing a defendant to change the

statements he made while under oath condones lying

and is against public policy. Iacono v. State, 930 So. 2d.

829, 830 (Fla. 4th DCA 2006). Therefore, in the instant

case the trial [c]ourt should not allow the [D]efendant

to recant his previous statements made under oath.

Since the Defendant testified that his plea was freely

and voluntarily entered into with no promises of a

potential sentence, this Court should deny Defendant’s

motion without holding an evidentiary hearing.

Resp. Ex. E at 51-52 (record citations omitted). After the state responded, the

trial court denied Petitioner’s motion for leave to amend, explaining Petitioner

failed to show good cause as to why the amendment was necessary. Id. at 81.

The same day the trial court denied leave to amend, Petitioner filed his

amended Rule 3.850 motion, attaching an “Affidavit of Elise Watkins.”3 Id. at

120-24. The “affidavit” was an unsworn, written statement from E. Watkins

stating that trial counsel showed her Petitioner’s interrogation video; asked her

to persuade Petitioner to enter an open plea of guilty because he would be

sentenced to life in prison if he went to trial; and advised her that if Petitioner

pleaded guilty, he would receive a ten-year sentence. Id. A few days later,

Petitioner filed a motion for rehearing of the trial court’s order denying his

request to amend. Id. at 125-27.

3 Except for the inclusion of the “Affidavit of Elise Watkins,” Petitioner’s

amended Rule 3.850 motion was identical to his initial Rule 3.850 motion.

9

Without referencing the motion for rehearing, the trial court then entered

an order adopting the state’s response and summarily denying Petitioner’s

initial and amended Rule 3.850 motions. Id. at 129-31. The trial court explained

it “carefully reviewed the response and f[ound] that it address[ed] [the] claim

with both factual and legal accuracy” and “therefore [found] it appropriate and

judicially efficient to adopt the State’s response as the [trial] [c]ourt’s findings.”

Resp. Ex. E at 130. Petitioner appealed, and during the appeal’s pendency, the

trial court granted Petitioner’s request for a rehearing of its order denying leave

to amend, stating, “[d]espite the trial court denying [Petitioner’s] [m]otion for

leave to amend, the trial court considered both the Motion and the Amended

Motion in its final Order denying both . . . .” Resp. Ex. H. Both Petitioner’s initial

Rule 3.850 motion and his amended Rule 3.850 motion were included in the

record on appeal. Resp. Ex. E at 1-36, 85-124. The First District Court of Appeal

per curiam affirmed the trial court’s denial without a written opinion. Resp. Ex.

I.

To the extent that Petitioner argues the trial court erred during his

postconviction proceedings by not ordering the state to file an amended

response addressing his amended Rule 3.850 motion, such allegations do not

present a cognizable constitutional challenge to the validity of Petitioner’s

judgment and sentence; and therefore, they are not appropriate on federal

10

habeas review. See, e.g., Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir.

1987) (argument that the state court failed to attach relevant portions of the

record to refute Rule 3.850 motion does not undermine validity of the

petitioner’s conviction, and thus does not state a basis for habeas relief); see

also Rolack v. Jones, No. 15-CV-22270-WILLLIAMS, 2016 WL 10707030, at *27

(S.D. Fla. Nov. 2, 2016) (holding that the petitioner’ claim that state

postconviction court failed to allow him leave to amend his Rule 3.850 motion

not cognizable on § 2254 habeas review).

To the extent that Petitioner argues his trial counsel misadvised him

about the sentence he would receive after entering his open plea, the Court

addresses that claim in accordance with the deferential standard for federal

court review of state court adjudications. In applying such deference, the Court

finds the record supports the state court’s finding that counsel was not

ineffective. According to the arrest and booking report, Petitioner stabbed the

victim, who was Petitioner’s next-door neighbor, after an argument. Resp. Ex.

A at 2. At least one individual witnessed the killing and after the incident,

Petitioner told his wife and roommate that he stabbed someone. Id. Police

arrested Petitioner and charged him with second degree murder with a weapon.

While Petitioner suggests counsel advised him that “he would be released from

custody” if he entered his open plea, Petitioner, under oath, testified at the plea

11

hearing that he was entering an open plea of guilty because he believed it was

in his best interest. Id. at 543-55. He stated that he understood the implications

of his plea, including that there was no agreed upon disposition or sentence in

exchange for his plea. Id. at 545-47. Petitioner explained he knew that by

entering his plea, he faced a maximum term of life and a minimum guidelines

sentence of 20.55 years incarceration and reviewed a copy of the scoresheet in

open court. Id. at 548-52. Petitioner also acknowledged the constitutional rights

he waived by entering his plea. Id. at 549-52. He testified no one had threatened

or coerced him into entering his plea, nor had anyone promised him anything

in exchange for his plea. Id. at 553. He also stated he was entering his plea

freely, willingly, and voluntarily. Id. Based on Petitioner’s representations, the

trial court accepted his plea, finding he entered it voluntarily with full

understanding of the consequences thereof. Id. at 559.

Before sentencing, trial counsel filed a motion requesting the trial court

impose a downward departure sentence. Id. at 228. At the sentencing hearing,

trial counsel called four witnesses on Petitioner’s behalf, including E. Watkins

who suggested she understood the seriousness of Petitioner’s conviction, but

asked the trial court to sentence Petitioner to a probationary term. Id. at 612-

13. The trial court then heard argument from the state who requested the trial

court impose a sentence between life and a fifty-year term of incarceration. Id.

12

at 680. Trial counsel highlighted mitigating evidence and requested that the

trial court depart from the minimum guidelines sentence and impose any

departure sentence it deemed appropriate, including a possible probationary

period, but trial counsel made clear that neither he nor Petitioner believed the

trial court would impose a particular sentence. Id. at 405. The trial court denied

trial counsel’s request, found a departure sentence was inappropriate, and

sentenced Petitioner to a thirty-five-year term of incarceration, followed by a

ten-year term of probation. Id. at 713-15.

Even if trial counsel advised Petitioner to enter a plea rather than proceed

to trial and consulted Petitioner’s wife during the process, the record shows that

Petitioner’s decision to enter his open plea of guilty was voluntarily his own,

made with a full understanding of the consequences that followed. See, e.g.,

United States v. Himick, 139 F. App’x 227, 228-29 (11th Cir. 2005) (“[A]

defendant’s reliance on an attorney’s mistaken impression about the length of

his sentence is insufficient to render a plea involuntary as long as the court

informed the defendant of his maximum possible sentence.”).4 Thus, upon

thorough review of the record and the applicable law, the Court finds that the

4 Although the Court does not rely on unpublished opinions as precedent, they

may be cited in this Order because the Court finds their reasoning persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022).

Rule 32.1 of the Federal Rules of Appellate Procedure permits the Court to cite as

persuasive authority unpublished opinions that have been issued on or after January

1, 2007. Fed. R. App. P. 32.1(a).

13

state court’s decision to deny Petitioner’s claim was neither contrary to nor an

unreasonable application of Strickland, and it was not based on an

unreasonable determination of the facts given the evidence presented to the

state court. See 28 U.S.C. § 2254(d). Ground One is denied.

B. Ground Two

Petitioner asserts his trial counsel was ineffective for failing to file a

motion to withdraw plea; withdraw as Petitioner’s attorney of record; or adopt

Petitioner’s pro se motion to withdraw plea filed after sentencing, because “he

did not receive the probation to which he was advised by counsel he would

receive following his open plea of guilty.” Doc. 1 at 12-13. He also argues the

trial court denied his “right to due process of law by failing to hold a ‘full and

fair’ hearing on Petitioner’s pro se motion.” Id. at 13.

Petitioner raised this claim in his initial and amended 3.850 motions.

Resp. Ex. E at 11-31, 95-14. The state responded to the claim on the merits. Id.

at 53-54. The state explained:

Defendant claims that his coun[sel] was

ineffective in failing to file a motion to withdraw his

plea. Failing to file a motion to withdraw a plea can

state a facially sufficient claim of ineffective assistance

of coun[sel] if the plea was involuntary. However, if the

record establishes that the defendant’s plea was

voluntary, then the trial counsel is not ineffective for

failing to withdraw the plea. Lane v. State, 839 So. 2d

854, 855 (Fla. 1st DCA 2003). Additionally, the Florida

Supreme Court has stated that an attorney cannot be

14

considered ineffective for failing to file a meritless

motion. Lugo v. State, 2 So. 3d 1 (Fla. 2008). In

Sheppard v. State, the Florida Supreme Court noted

that the defendant bears the burden of presenting a

“manifest [] [in]justice has occurred.”

In the instant case the Defendant has not carried

his burden of establishing that a manifest [] [in]justice

has occurred. Defendant is quoted in the record to be

freely and voluntarily entering into the plea. Pursuant

to the trial transcripts the Defendant’s level of

education and military experience ensure that he is

comfortable and competent with the English language

such that he fully understood the consequences of his

plea. Furthermore, the trial transcripts indicate the

Judge took great pains to ensure the Defendant was

comfortable with entering the plea, “[j]ust for the

record I did pause and give you a minute to meet with

Mr. Bateh . . . is that accurate?” the Defendant replied

in the affirmative and stated that he was comfortable

moving forward with his plea. At no time during the

plea colloquy does the defendant fain [sic] on his

intention to enter a plea of guilty, nor is there any

evidentiary support for the presence of an “adversarial

relationship” between the Defendant and his attorney.

The record does support that even after given ample

time to speak with his attorney, Defendant still wished

to enter his plea. The Judge states “Although you’re

feeling emotional do you feel fully comfortable

preceding forward, that is what you wish to do, enter

your plea of guilty?” Defendant responds under oath

with “Yes, your Honor.” This line ·or question and

answer directly refutes the Defendant’s claim of an

adversarial relationship or involuntary plea and

provides conclusive evidence that the plea was freely

and voluntarily entered into. Thus, the State suggests

that this Honorable Court may deny Ground 2 based

upon the record provided by the State, and the

argument contained within this Response, without

holding an evidentiary hearing.

15

Resp. Ex. E at 53-54 (record citations omitted). The trial court adopted the

state’s response and summarily denied this claim, explaining it “carefully

reviewed the response and f[ound] that it address[ed] [the] claim with both

factual and legal accuracy” and “therefore [found] it appropriate and judicially

efficient to adopt the State’s response as the [trial] [c]ourt’s findings.” Resp. Ex.

E at 130. The First DCA per curiam affirmed the trial court’s denial without a

written opinion. Resp. Ex. I. The Court addresses the claim in accordance with

the deferential standard for federal court review of state court adjudications. In

doing so, the Court summarizes the relevant procedural history.

Five days after he was sentenced, Petitioner filed a pro se motion to

withdraw his plea under Florida Rule of Criminal Procedure 3.170(l). Resp. Ex.

A at 405. In the motion, Petitioner asserted that he followed his attorney’s

advice and entered his guilty plea with the intent to reserve his right to appeal

the trial court’s denial of his request for a downward departure sentence. Id. He

maintained that his plea documents did not reflect Petitioner’s desire to pursue

that appeal, and requested “in an abundance of caution . . . to withdraw the plea

and either reenter it reserving [his] appellate rights or go to trial.” Id. at 406.

The state moved to strike the pro se motion, and the trial court conducted a

hearing to address the issues. Id. at 720-50.

During the hearing, trial counsel declined to adopt the pro se motion, but

16

suggested that the trial court ask whether Petitioner wished to discharge

counsel or represent himself and proceed with the motion. Id. at 721. Petitioner

then addressed the trial court and stated that he wished to discharge his trial

counsel and withdraw his plea because his attorney misled him and his wife

about the sentence he would receive after entering his plea. Id. at 723-28. Trial

counsel responded to Petitioner’s accusations by advising the trial court that

before Petitioner’s guilty plea, he consulted Petitioner several times and never

misled or coerced him into entering his plea. Id. at 728. Trial counsel explained

that because this was a homicide case, he “would never . . . explain[] to an

individual that [he] represent[s] that they would only be in [prison] for . . . 12

months . . . .” Id. at 730. He stated, “[n]ever in [his] time representing

[Petitioner] did [he] ever give him a specific statement that he would be released

or he would get out in X amount of time.” Id. Petitioner responded that trial

counsel never “spoke directly to [him]” about a specific sentence, but that trial

counsel spoke through Petitioner’s wife who repeatedly asked him to enter a

plea. Id. at 734. Trial counsel replied that Petitioner asked him to communicate

with his wife throughout the process, but “at no time did [he] force her to speak

to [Petitioner].” Id. Rather, trial counsel expressed his concern about going to

trial given the state’s evidence against Petitioner. Id.

The trial court then advised Petitioner that it had appointed separate

17

appellate counsel to represent Petitioner on direct appeal and asked him if he

wished to discharge that counsel. Id. at 740-47. Petitioner responded that he

wished to keep appointed appellate counsel. Id. Given these representations,

the trial court denied Petitioner’s previous oral request to discharge counsel and

struck Petitioner’s pro se motion to withdraw plea as a nullity. Id. at 748-50.

On direct appeal, Petitioner, with the benefit of counsel, filed an initial brief

under Anders v. California, 386 U.S. 738 (1967), representing that no good-faith

argument of reversible error could be made. Resp. Ex. B. The First DCA

provided Petitioner with an opportunity to file a pro se brief, but he declined to

do so. Resp. Ex. C. The First DCA per curiam affirmed Petitioner’s judgment

and sentence without a written opinion. Resp. Ex. D.

As discussed supra, Petitioner fails to show that he entered his plea based

upon trial counsel’s erroneous advice. Likewise, Petitioner fails to show a

meritorious basis for withdrawing his plea, and thus trial counsel cannot be

ineffective for adopting a motion lacking in merit. As such, upon thorough

review of the record and the applicable law, the Court finds that the state court’s

decision to deny Petitioner’s claim was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

determination of the facts given the evidence presented to the state court. See

28 U.S.C. § 2254(d). Further, because the trial court conducted a hearing,

18

during which Petitioner ultimately retracted his request to discharge counsel,

any due process claim fails. Ground Two is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

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

WITH PREJUDICE.

2. The Clerk shall enter judgment dismissing this case with

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

3. If Petitioner appeals this denial, the Court denies a certificate of

appealability. Because this 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.5

5 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.

19

DONE AND ORDERED at Jacksonville, Florida, this 17th day of May,

2022.

□□□ Limothy Corrigan

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Travis D. Watkins, #J56264

Counsel of record

20