King v. Inch (Flagler County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL KING,

Petitioner,

v. Case No. 3:19-cv-917-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Michael King, an inmate of the Florida penal system, initiated

this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas

Corpus by a Person in State Custody. Doc. 1. He challenges a state court

(Flagler County, Florida) judgment of conviction for use of a computer to seduce,

solicit, or lure a child and traveling to meet a minor for sex.1 Petitioner is

serving a cumulative ten-year term of incarceration to be followed by a

cumulative ten-year term of sex offender probation. Respondents filed a

1 A jury found Petitioner guilty of two counts of use of a computer to seduce,

solicit, or lure a child, but the trial court vacated one of those counts during his state

court postconviction proceedings, finding the conviction violated Petitioner’s double

jeopardy rights.

Response. See Doc. 14 (Resp.).2 Petitioner then supplemented his Petition,3 see

Docs. 16, 16-1; and he replied, see Doc. 21. This case is ripe for review.4

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

2 Attached to the Response are several exhibits. The Court cites the exhibits as

“Resp. Ex.”

3 After Respondents responded, Petitioner filed a “Motion for Leave to Expand

the Record” to include the Florida Supreme Court’s order disbarring Petitioner’s trial

counsel, Bret Hartley, and an uncontested “report of the referee” recommending

disbarment. See Docs. 16, 16-1. Petitioner filed the documents to supplement his

ineffective assistance of counsel claims. Id. The Court granted Petitioner’s request to

the extent it would consider the supplement if relevant. Doc. 17. The Court addresses

the supplement when analyzing Grounds Two and Three of the Petition.

4 “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 unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

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

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

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

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

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.

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

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).

III. Analysis

A. Ground One

Petitioner alleges the trial court violated his Sixth Amendment

confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004), when

it considered deposition transcripts rather than live testimony during

Petitioner’s pretrial Williams5 Rule hearing. Doc. 1 at 4-5.

Before trial, the state filed a notice of Williams Rule or collateral crime

evidence, advising Petitioner and the trial court of its intent to introduce at trial

evidence of internet communications between Petitioner and two other minor

females who were not the victim. Resp. Ex. A at 41-42. Trial counsel objected to

the state’s notice, and the trial court conducted a hearing on the issue. Resp.

Ex. C. During the hearing, the state declined to present live testimony and

instead asked that the trial court make its admissibility determination by

considering deposition testimony of the victim and the two potential Williams

Rule witnesses. Id. at 6. In support of its request, the state argued that

Petitioner contacted the victim and the two other minors through Facebook;

presented printouts of the Facebook messages between Petitioner and the three

females; and maintained the Williams Rule witnesses’ testimony were relevant

to show Petitioner’s motive, absence of mistake, preparation, intent, and

knowledge of the minor victim’s age. Id. at 10-23. Trial counsel objected,

arguing, inter alia, that the state’s reliance on deposition testimony at the

pretrial hearing violated Petitioner’s confrontation rights under Crawford,

because the state filed the Williams Rule notice after the depositions were taken

5 Williams v. State, 110 So. 2d 654 (Fla. 1959).

and thus trial counsel was unaware of this information when he cross-examined

the witnesses during their depositions. Id. at 24-27. The trial court overruled

trial counsel’s objection, finding Crawford and the Confrontation Clause only

applied to trial testimony, not preliminary or pretrial hearings, and found the

similar fact evidence was relevant and admissible at trial. Id. at 33-34; Resp.

Ex. A at 54-61.

The victim and the two Williams Rule witnesses then testified at trial,

and trial counsel cross-examined each witness. Resp. Ex. E at 39-62, 115-35,

254-61. Before each Williams Rule witness testified, the trial court instructed

the jury that each witness’s testimony should be considered only as it related to

proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or corroboration. Id. at 115, 256. The jury found Petitioner

guilty, and on direct appeal, Petitioner, with help from appellate counsel, raised

as his only issue a claim that the trial court violated his Sixth Amendment

confrontation rights by determining the admission of Williams Rule evidence

solely on deposition testimony. Resp. Ex. G. The state filed an answer brief

addressing the claim on the merits. Resp. Ex. H. It argued the trial court

properly held that the Confrontation Clause of the Sixth Amendment was

inapplicable to the pretrial Williams Rule hearing, and even if the Williams

Rule testimony was improperly admitted at trial, any error was harmless given

the other evidence presented to the jury. Id. The Fifth District Court of Appeal

per curiam affirmed Petitioner’s judgment and convictions without a written

opinion. Resp. Ex. J.

Here, the Court addresses Petitioner’s claim in accordance with the

deferential standard for federal court review of state court adjudications. “The

Confrontation Clause protects a defendant’s trial right to confront testimony

offered against him to establish his guilt, and the Supreme Court has never

extended the reach of the Confrontation Clause beyond the confines of a trial.”

United States v. Campbell, 743 F.3d 802, 808 (11th Cir. 2014). Notably, the

Eleventh Circuit “and other courts have declined to extend the right to confront

witnesses to pre- and post-trial proceedings that do not concern the adjudication

of a defendant’s guilt or innocence.” Id. (citing United States v. Powell, 650 F.3d

388, 392-93 (4th Cir. 2011) (holding that the Confrontation Clause does not

apply at sentencing and noting that all other federal circuit courts that hear

criminal appeals agree); United States v. Cantellano, 430 F.3d 1142, 1146 (11th

Cir. 2005) (holding that, even after Crawford, the confrontation right does not

apply at a non-capital sentencing hearing); United States v. Andrus, 775 F.2d

825, 836 (7th Cir. 1985) (holding that the Sixth Amendment does not provide a

confrontation right at a preliminary hearing); LaChappelle v. Moran, 699 F.2d

560, 564-65 (1st Cir. 1983) (holding that the confrontation right does not apply

at an in camera conference to determine the reason a witness refuses to answer

a question because such a judicial proceeding “is not a stage of the trial at which

an accused must be present”); United States v. Harris, 458 F.2d 670, 677-78

(5th Cir. 1972), (holding that the confrontation right does not apply at a

preliminary hearing); cf United States v. Clark, 475 F.2d 240, 247 (2d Cir. 1973)

(holding confrontation right applies to pretrial suppression hearing because

“the suppression hearing centers upon the validity of the search for and seizure

of evidence which the government plans to use later in seeking to prove guilt”)).

In Petitioner’s case, the trial court considered the depositions during a

pretrial Williams Rule hearing to determine the admissibility of evidence that

did not go directly to Petitioner’s guilt, and thus Petitioner’s Sixth Amendment

confrontation rights were not implicated. But even if the trial court found the

Williams Rule evidence inadmissible under the Sixth Amendment

Confrontation Clause, Petitioner cannot show that the outcome of his trial

would have been different. The victim and police witnesses testified that

Petitioner repeatedly contacted the victim through Facebook and traveled to

meet the minor victim in a location for the purpose of committing unlawful

sexual conduct. Resp. Ex. E at 42-56, 77-88. Consequently, the Court finds that

the state appellate court’s summary adjudication of this claim was neither

contrary to, nor an unreasonable application of, clearly established federal law.

Nor was the state appellate court’s adjudication based on an unreasonable

determination of the facts given the evidence presented in the state court

proceedings. As such, Ground One is denied.

B. Grounds Two and Three6

In Ground Two, Petitioner asserts his trial counsel was ineffective for

failing to timely advise him of the state’s plea offer of a 36-month term of

incarceration and for completely failing to inform Petitioner of the state’s plea

offer of a 49-month term of incarceration. Doc. 1 at 6-7. Petitioner contends he

tried to accept the 36-month plea offer, but trial counsel misadvised Petitioner

about when the state would revoke the offer; and Petitioner maintains trial

counsel never told him about the state’s 49-month offer. Id. In Ground Three,

Petitioner asserts his trial counsel was ineffective for failing to inform

Petitioner that he faced a maximum 25-year term of incarceration if he

proceeded to trial and was found guilty on all three charged offenses. Id. at 8-9.

He contends that his attorney instead “conveyed his belief that [] Petitioner

could get seven years at the August 13, 2015 docket sounding.”7 Id. at 9.

Petitioner raised these allegations in ground one of his Florida Rule of

Criminal Procedure 3.850 motion for postconviction relief. Resp. Ex. L at 12-18.

After ordering the state to respond, id. at 53-57, the trial court summarily

denied the allegations, id. at 246-51. The trial court found as follows:

6 Petitioner raised these two claims in the same ground in state court, and thus

the Court addresses these claims together.

7 In his Reply, Petitioner argues that trial counsel’s subsequent disbarment

supports his allegations that trial counsel misrepresented the state’s plea offers. See

Doc. 21. The Court addresses that allegation separately.

In Claim One, Defendant argues two distinct

claims of ineffective assistance of counsel: (1) that he

was not properly advised of the State’s two plea offers;

and (2) that he was not advised of the maximum

sentence of 25 years in prison which he faced at the

time of the plea offers. Defendant claims that had he

been advised properly, he would have accepted the

State’s second plea offer of 49 months in prison and

would not have proceeded to trial.

The State argues that the record clearly refutes

Defendant’s claim that its offers were not properly

conveyed. The first offer of three years in prison

followed by 12 years[] sex offender probation was

explicitly rejected at the docket sounding on August 13,

2015:

MR. PRIBISCO: Your Honor, the plea offer

was three years in prison followed by 12

years of sex offender probation. He is

charged with three counts. I believe the

latest negotiations were that he would plea

to one count. And that would be the -- the

resolution. I did discuss that with Mr.

Hartley prior to court here today and it

appears that Mr. King’s not in a position to

accept that offer.

THE COURT: Okay. Mr. Hartley?

MR. HARTLEY: . . . You know, it’s our

position that -- that while I respect the

State’s made that offer, criminal

proportionality standpoint, it’s way out of

proportion to the facts of the case.

So, I mean, if there was a way to resolve

this to -- to a probationary sentence that

takes into account, we’d be more than

willing to do that. But we have been at

opposite ends of the spectrum . . . . [T]his is

where we’re at, I guess.

THE COURT: Well, I just have to make

sure that your client’s heard the offer.

MR. HARTLEY: Sure.

THE COURT: That he’s intelligently

decided to not accept it with your advice

and that’s what I’m --

MR. HARTLEY: Yeah.

THE COURT: That’s why I need him here

today.

MR. HARTLEY: Yep.

THE COURT: I hope he understands that.

MR. HARTLEY: Yep.

The second offer by the State included a 49-month

prison sentence, which was rejected prior to the

commencement of trial on August 17, 2015:

MR. PRIBISCO: . . . Previously when we

were on the record discussing the history of

the plea negotiations, and just stated -- just

something that Mr. Hartley said just

caught me here and I wanted to make sure

it was clear on the record.

But the offer that was relayed on Friday

was essentially that the State would nolle

pros one count, and that he would face a

scoresheet with -- the lowest permissible

prison sentence would be about 49 months.

And that’s not that it’s a mandatory

minimum, there would still be the ability to

argue for a downward departure. I’m sure -

- or I’m thinking Mr. Hartley probably

explained that to him. I just wanted to

make sure that that was clear on the record

and that Mr. King was advised that this is

not a -- it was not a mandatory minimum,

but rather the lowest permissible sentence,

for which he could certainly argue for a

downward departure.

THE COURT: That was the substance of

your plea offer?

MR. PRIBISCO: That’s correct, Judge.

THE COURT: Okay. Mr. Hartley?

MR. HARTLEY: Your Honor, I mean, the

reality is that this case is a resolvable case.

I just feel like we’re always, you know, just

a bit apart. And so, you know, my client

said to me in the hallway, you know, he’s

willing to resolve the case short of trial, we

just seem to be slightly -- you know, slightly

off . . . .

THE COURT: . . . I just wanted to ensure

that the State has now put on the record

your last plea offer, and that’s been not

agreed to, so we’ll proceed.

MR. HARTLEY: Well, I mean, is that -- is

that open?

MR. PRJBISCO: It’s -- it’s not. I mean,

that’s just to confirm what the offer was

and that it was rejected.

MR. HARTLEY: You wouldn’t -- you would

not -- you would not re-extend at this point?

MR. PRIBISCO: Huh-uh. No, that’s

correct.

The record clearly demonstrates that counsel

conveyed both plea offers and Defendant chose to reject

them both and take his chances at trial. Defendant was

present at both hearings and could have informed the

Court if he had intended to accept either offer, but he

did not do so.

Next, Defendant claims that his trial counsel was

ineffective when he failed to advise Defendant of the

maximum penalty he faced of 25 years in prison. In this

context, Defendant can establish Strickland prejudice

if he can demonstrate a reasonable probability that (1)

he would have accepted the plea offer had counsel

advised him correctly; (2) the prosecutor would not

have withdrawn the offer; (3) the court would have

accepted the offer; and (4) the conviction or sentence

under the plea offer would have been less severe than

under the judgment and sentence that in fact were

imposed. See Alcorn v. State, 121 So.3d 419, 422 (Fla.

2013); Missouri v. Frye, 566 U.S. 134, 148-9 (2012).

Defendant contends that had he known that he

faced a maximum sentence of 25 years in prison, he

would have accepted the State’s second plea offer which

included 49 months in prison. This Court is not

required to accept Defendant’s claim, but must consider

the totality of the evidence as viewed at the time of the

plea offers. Alcorn, 121 So. 3d at 431, 432. The record

clearly demonstrates that Defendant was dissatisfied

with the State’s two plea offers, and felt they were “at

opposite ends of the spectrum.” This Court is further

persuaded by the State’s argument that since

Defendant had already rejected the State’s first offer of

a three-year prison sentence, it defies logic that he

would then almost immediately accept an offer that

included a higher prison term. Finally, the record

clearly demonstrates that after Defendant rejected it,

the State was not willing to re-extend the second plea

offer.

Defendant has failed to establish prejudice under

Strickland and A[l]corn. Thus, it is not necessary to

determine whether or not trial counsel’s performance

was deficient.

Resp. Ex. L at 248-51 (record citations omitted). Petitioner appealed, and the

Fifth DCA per curiam affirmed the trial court’s summary denial without a

written opinion. Resp. Ex. P. The Court addresses these claims in accordance

with the deferential standard for federal court review of state court

adjudications.

In doing so, the Court defers to the state court’s conclusion that Petitioner

has failed to show prejudice under Strickland. In the context of a rejected plea

offer, the prejudice prong requires the movant to show “a reasonable probability

that but for counsel’s ineffectiveness: (1) ‘the plea offer would have been

presented to the court (i.e., that the defendant would have accepted the plea

and the prosecution would not have withdrawn it in light of intervening

circumstances)’; (2) ‘the court would have accepted its terms’; and (3) ‘the

conviction or sentence, or both, under the offer’s terms would have been less

severe than under the judgment and sentence that in fact were imposed.’” Osley

v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) (quoting Lafler v. Cooper,

566 U.S. 156, 164 (2012)). But “after the fact testimony concerning [the

movant’s] desire to plead, without more, is insufficient to establish that but for

counsel’s alleged advice or inaction, he would have accepted the plea offer.” Diaz

v. United States, 930 F.2d 832, 835 (11th Cir. 1991).

Here, even if the Court assumes that trial counsel acted deficiently,

Petitioner has not shown a reasonable probability that absent counsel’s alleged

misconduct, Petitioner would have accepted either offer and the state would not

have withdrawn the offers given intervening circumstances. As to the 36-month

offer, Petitioner alleges his trial counsel advised him that he had until August

14, 2015, to decide whether to accept the offer, and when he attempted to accept

the offer on the morning of August 14, trial counsel advised him “the offer was

only open until the [d]ocket sounding of [] [August] 13th.” Doc. 1 at 7. However,

the record shows that Petitioner rejected the 36-month plea offer before the

August 13, 2015, pretrial conference; Petitioner was physically present when

the parties advised the trial court at the August 13, 2015, hearing that

Petitioner rejected that offer; and Petitioner did not interrupt when trial

counsel suggested Petitioner rejected the offer because he wished to take his

chances at trial and argue for the imposition of a lesser sentence if found guilty.8

Resp. Ex. L at 64-65.

As to the alleged 49-month plea offer, the record is clear that the state did

not offer a specific 49-month negotiated sentence. Rather, the terms of that offer

8 The transcript of the August 13, 2015, pretrial conference states that

Petitioner was present at the hearing. Resp. Ex. L at 60.

involved the state dropping one of the charges to lower Petitioner’s minimum

guideline exposure to 49-months, allowing trial counsel an opportunity to argue

for that 49-month guideline minimum or request a downward departure

sentence. The offer did not affect the trial court’s ability to sentence Petitioner

to the maximum sentence. On August 17, 2015, the morning of jury selection,

the state advised the trial court about the offer and explained that Petitioner

had rejected it. Resp. Ex. D at 5-6. Trial counsel then explained that Petitioner

was willing to resolve the case with a plea but suggested that the state’s offers

subjected Petitioner to prison time, and thus the offers were not something

Petitioner was willing to accept. Id. at 6. The trial court then advised it would

not entertain such a late-stage plea agreement, and the state emphasized that

it would not re-extend another offer. Id. at 6-7. Again, Petitioner was present

for this exchange and did not interject.9

As to Petitioner’s claim that trial counsel failed to correctly advise him

that he faced a 25-year maximum sentence if he was found guilty at trial, the

Court defers to the state court’s finding that the “totality of the evidence as

viewed at the time of the plea offers” shows Petitioner was unwilling to accept

either offer despite any alleged misadvise about the maximum sentence. Here,

Petitioner claims that during the August 13, 2015, pretrial conference, trial

9 The transcript of the August 17, 2015, discussion about the 49-month offer

states that Petitioner was present in the courtroom. Resp. Ex. D at 4.

counsel “conveyed his belief that [] Petitioner could get seven years,” and

suggests that he understood trial counsel’s statement to mean that he only faced

a 7-year maximum sentence. Doc. 1 at 9. A review of the August 13, 2015,

transcript shows that trial counsel’s only reference to a 7-year term was when

he stated, “does [Petitioner] deserve seven years in state prison” if he is found

guilty. Resp. Ex. L at 64-65. However, in context, the 7-year reference was

clearly a hypothetical statement trial counsel made to highlight the alleged

historical sentencing disparity between individuals who are convicted of the

charged offense. Id. He also made the reference to further explain that

Petitioner would not accept any plea offer that included a prison sentence. Id.

64-65. Further, immediately following the jury’s verdict, the trial court began

Petitioner’s sentencing hearing and advised Petitioner that he faced a minimum

guidelines sentence of 70.05 months incarceration and a maximum sentence of

25 years. Resp. Ex. E at 401. Petitioner acknowledged that sentencing range

and addressed the trial court, asking that it impose “a decent sentence” and

never suggesting he was unaware of his 25-year incarceration exposure. Id. at

401-02.

Given the parties’ widely divergent positions on any negotiated plea deal

and sentence, Petitioner has not shown a reasonable probability that a plea

agreement would have been reached and accepted by the trial court. Although

Petitioner may have been interested in pleading guilty, “[g]iven [Petitioner’s]

awareness of the plea offer[s], his after the fact testimony concerning his desire

to plead, without more, is insufficient to establish that but for counsel’s alleged

advice or inaction, he would have accepted the plea offer[s].” Diaz, 930 F.2d at

835. Thus, upon thorough review of the record and the applicable law, the Court

finds that the state court’s decision to deny Petitioner’s claims 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).

i. Supplement

Although never presented to nor considered by the state court, Petitioner,

in support of these claims, filed with this Court a supplement containing a

court-appointed referee’s 2019 report recommending that trial counsel be

disbarred and the Florida Supreme Court’s 2020 order approving the report and

disbarring trial counsel. See Doc. 21 at 5; Docs. 16, 16-1. Petitioner argues trial

counsel’s subsequent disbarment “leads credence to his claim[s]” that trial

counsel failed to adequately convey the terms and consequences of these plea

offers. Doc. 21 at 6-7.

While trial counsel’s disciplinary proceedings and 2020 disbarment are

concerning, Petitioner does not establish a connection between the violations

outlined in the referee’s report and trial counsel’s representation of Petitioner.

Trial counsel filed his notice of appearance on behalf of Petitioner on December

9, 2013. Resp. Ex. A at 24. Petitioner’s trial occurred in 2015, and in 2016,

Petitioner was found indigent for purposes of his direct appeal and an assistant

public defender was appointed to represent him on appeal. Resp. Ex. G. There

is no indication that The Florida Bar’s investigation concerned conduct relating

to trial counsel’s handling of Petitioner’s case. See generally Doc. 16-1. Trial

counsel’s disbarment was based on conduct that occurred between 2017 and

2019, involving, inter alia, severe misappropriation of client funds, failure to

take necessary steps to protect clients’ interests prior to abandoning his law

office, failure to appear on behalf of clients at court hearings, and failure to

respond to The Florida Bar’s official inquiries. Id. While the report contains

allegations that trial counsel intentionally misrepresented facts to his clients

and the state courts during that time, those misrepresentations were directly

associated with his effort to conceal his misappropriation of client funds. Id. at

17. As such, evidence of trial counsel’s disbarment is too attenuated to bear on

deficient performance or prejudice under Strickland. Grounds Two and Three

are denied.

C. Ground Four

Petitioner argues his trial counsel was ineffective for failing to challenge

for cause or use a peremptory strike to remove a biased juror during jury

selection.10 Doc. 1 at 10-11. Petitioner alleges that during voir dire, juror Johnny

Dumont said he did not understand the law and agreed with another potential

juror (who was ultimately stricken) that Petitioner was “automatically guilty,

without the need for further evidence . . . .” Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. L at 18-

23. The trial court summarily denied the claim, finding as follows:11

In Claim Two, Defendant states that trial counsel

was deficient for not challenging juror Dumont during

jury selection. Counsel’s alleged failure to exercise a

cause challenge or a peremptory challenge to strike a

prospective juror is subject to the prejudice standard

set forth in Carratelli v. State, 961 So. 2d 312, 324 (Fla.

2007), which states that the defendant must establish

that a juror was actually biased:

A juror is competent if he or she “can

lay aside any bias or prejudice and render

his verdict solely upon the evidence

presented and the instructions on the law

given to him by the court.” Therefore,

actual bias means bias-in-fact that would

prevent service as an impartial juror.

Under the actual bias standard, the

defendant must demonstrate that the juror

in question was not impartial – i.e., that

the juror was biased against the defendant,

10 In his Petition, Petitioner alleges trial counsel should have stricken Dumont

for cause, Doc. 1 at 10, and in his Reply, Petitioner alleges trial counsel should have

used a peremptory challenge to strike Dumont, Doc. 21 at 10-12.

11 The trial court denied the allegations in Ground Four of the Petition in an

“Interim Order” and later denied the allegations in Grounds Two and Three of the

Petition in a separate final order following the state’s response. Resp. Ex. L at 31-37,

246-51. Petitioner challenged both the interim and final orders in the same appeal.

and the evidence of bias must be plain on

the face of the record.

Id. at 324 (citations omitted) (quoting Lusk v. State,

446 So. 2d 1038, 1041 (Fla. 1984)).

Here, in his motion, Defendant recounts the

State’s questioning of Dumont and the allegedly biased

statements made by Dumont. A review of the record

shows that at jury selection on August 17, 2015, both

the State and defense counsel addressed Dumont’s

ability to understand the legal concepts and evidence in

the case and his ability to remain impartial. After the

State’s questioning, defense counsel carefully and

thoroughly questioned Dumont:

MR. HARTLEY: Mr. Dumont, I think that

you asked a question earlier about – about

is this a To Catch a Predator case. What do

you know about those?

VENIREMAN DUMONT: Well, when you

see something like that on TV, whether it’s

that or Cops, they seem to have, when it

comes to court, you don’t see that part, they

already have a lot of information. Because

you see what’s happening. You see the

video. You see the arrest. You see what

they say online and you understand all this

stuff.

MR. HARTLEY: Do you think it’s fair the

way those things happen?

VENIREMAN DUMONT: I’m not saying

it’s fair or not fair. After you see it on video

and you actually see the guy going into the

house, I mean, what I see from that, he’s

guilty.

MR. HARTLEY: Sure. So the context of the

conversation, the content of the

conversation and the evidence that gets

presented during the trial phase, does that

– that makes a difference to you, though,

right, Mr. Dumont?

VENIREMAN DUMONT: Yes, it would.

MR. HARTLEY: So if –

VENIREMAN DUMONT: But if you show

me a video of the actual person going in

there. I see it. That’s like seeing somebody

stealing my car right now.

MR. HARTLEY: But you’ve got to see him

drive off with the car though. Right?

VENIREMAN DUMONT: Yes, but if I see

that, that’s . . .

MR. HARTLEY: So if a police officer – so if

a police officer is trying to sell you drugs on

Facebook or sell a person drugs on

Facebook and that person shows up to

consummate a deal or something along

those lines, do you think that the drugs

have to change hands in order for there to

be a conviction?

VENIREMAN DUMONT: Yes.

MR. HARTLEY: Okay. So if there is no

exchange or if there is no physical evidence

of that happening, do you think it’s the

contrary?

VENIREMAN DUMONT: I don’t – yeah. I

don’t – I don’t believe that that – if it didn’t

happen, it didn’t happen.

Later, defense counsel again questioned Dumont:

MR. HARTLEY: Okay. Mr. Dumont the

same thing, same thing. I mean, do you

think that there’s some – there has to be

some manifestation of my agreement to do

something? So meaning if I agree online,

I’m typing this, I say, Hey. Mr. Dumont, I’ll

meet you at Steak and Shake and I’m going

to bring an ounce of weed for you, do you

think I should probably have something in

my hand, probably get busted for doing

that?

VENIREMAN DUMONT: I wouldn’t be at

Steak and Shake, first of all.

MR. HARTLEY: . . . But if I agreed – or if a

person agreed to meet you somewhere,

would you want to see some – some

component of the case to show that the

person actually – you know, not only was

just talking about it, but actually was going

to do it?

VENIREMAN DUMONT: Sure.

MR. HARTLEY: I mean, the To Catch a

Predator cases – you’ve seen those on TV.

Right?

VENIREMAN DUMONT: Sure. I watch

Cops and this and that.

MR. HARTLEY: So when you watch it –

when you watch a To Catch a Predator

case, what do these fools show up with in

their hand, usually?

VENIREMAN DUMONT: Well, they’ve got

drugs and condoms, or whatever.

MR. HARTLEY: Whiskey?

VENIREMAN DUMONT: Yeah.

MR. HARTLEY: Movies?

VENIREMAN DUMONT: Yeah.

MR. HARTLEY: . . . But, Mr. Dumont, so

what I’m hearing you say, though, is that

you’re comfortable with the idea that the

State has an obligation to show more than

just – more than just basic facts. They’ve

got to show that they meet every element

in the case. You’re okay with that?

VENIREMAN DUMONT: Yes.

MR. HARTLEY: So, if the judge – and you

were talking about not understanding,

necessarily, the law. If the judge says to

you here are the elements of the case

pursuant to the standard jury instructions

that every attorney in the state goes by, if

the judge shows you every element and

every element is met beyond a reasonable

doubt, you’re finding would be guilty.

Correct?

VENIREMAN DUMONT: (No audible

response).

MR. HARTLEY: And if one of those

elements was not there, your finding would

not be guilty. Correct?

VENIREMAN DUMONT: Yes.

Finally, defense counsel once again addressed

impartiality with Dumont:

MR. HARTLEY: . . . Just remember, you

know, what I’m trying to do here is just

make sure that – that I get a jury full of

people that are going to hear this case on

the facts and on the law and nothing else. I

can’t have people coming into the jury room

with preconceived notions about what

should take place and wanting to convict

my client just based upon what an officer

says happened or what a prosecutor says

happened. It needs to be on the basis of

what you learn happened and how that fits

into the law as you’re instructed.

So, does anyone else have any strong

feelings about that?

. . .

Is there anybody that has any questions?

Anything that – Mr. Dumont, no questions?

VENIREMAN DUMONT: No.

MR. HARTLEY: Well, you asked some good

questions before. I just want to make sure

that I’m not leaving anything else.

Although initially Dumont was apprehensive

about understanding the case, both the State Attorney

and defense counsel conducted a meaningful voir dire

of Dumont to address that issue. Dumont’s responses to

further questioning by defense counsel indicates that

he could decide the case impartially, and that he was

open to hearing the facts and circumstances of the case.

It is clear from the record that counsel felt Dumont

could and would remain impartial. Neither counsel nor

the trial judge suggested Dumont be removed for cause.

“A jury selection error justifying postconviction relief is

so fundamental and glaring that it should have alerted

a trial judge to intervene, even in the absence of a

proper objection, to prevent an actually biased juror

from serving on the jury, thereby irrevocably tainting

the trial. Where reasonable people could disagree about

a juror’s fitness to serve, the showing of prejudice

required for postconviction relief is lacking.” Carratelli

v. State, 915 So. 2d 1256, 1264 (Fla. 4th DCA 2005).

The record refutes any claim of actual bias that

would have prevented juror Dumont from serving as an

impartial juror. “[W]hen the record establishes that the

allegations that support a motion for postconviction

relief are untrue, then it is proper to deny the motion

without a hearing.” Mullins v. State, 850 So. 2d 676,

677 (Fla. 4th DCA 2003), citing Davis v. State, 257 So.

2d 79, 80 (Fla. 2d DCA 1972). Accordingly, Claim Two

of Defendant’s motion for Postconviction Relief is

summarily denied.

Resp. Ex. L 33-37 (record citations omitted). Petitioner appealed, and the Fifth

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

Resp. Ex. P. The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications.

Although a juror may make initial statements during voir dire suggesting

potential bias, later responses may establish that the juror can be impartial,

especially when combined with appropriate court instructions to the venire. See

Bell v. United States, 351 F. App’x 357, 359 (11th Cir. 2009) (per curiam)

(citations omitted); United States v. Simmons, 961 F.2d 183, 186 (11th Cir.

1992). Further, trial counsel’s decision not to use all the peremptory strikes

allotted to the defense suggests that there might have been a strategic reason

for retaining the questionable juror. See Bell, 351 F. App’x at 360; Simmons,

961 F.2d at 186. “Assessing jurors during voir dire also requires an evaluation

of demeanor and credibility. Review of counsel’s performance is highly

deferential in any case, but the case for deference is even greater when counsel

is evaluating credibility.” Bell, 351 F. App’x at 360.

Upon the trial court’s initial questioning, all potential jurors collectively

agreed that they understood Petitioner was presumed innocent and the state

had the burden of proving he committed a crime. Resp. Ex. D at 32-33. Although

Dumont suggested slight confusion about the nature of the charged offenses, he

clearly stated he could follow the law. Id. at 114-16. Upon questioning by trial

counsel, Dumont stated that he was comfortable with the idea that the state

had the obligation to present evidence meeting every element of the charged

offense. Id. at 135. At the end of trial counsel’s questioning, another juror,

Brazzano, suggested the seriousness of the charged offense might hinder his

impartiality. Id. at 143-44. Dumont then stated, “I agree with him. Nobody

forced him to go on the computer.” Id. at 144. In response, the trial court

immediately interrupted and clarified that no evidence had yet been presented

and thus any ideas about what may or may not be presented was not relevant

during jury selection. Id. at 144-45. The trial court then recessed for lunch, and

upon their return, trial counsel reiterated that the jury should look at the

charged offenses as “only allegations” at this point. Id. at 151. The trial court

asked the panel once more if everyone could “presume [Petitioner] innocent at

this time, having heard no evidence, no law, no arguments, just the charge,”

and they collectively responded in the affirmative. Id. at 153. Trial counsel used

five of his six peremptory strikes, and Dumont was the last juror selected to sit

on the final panel. Id. at 161-63. The trial court then addressed Petitioner, who

explained to the trial court that trial counsel answered all of his questions

during jury selection, and advised that he was satisfied with the chosen jury

panel. Id. at 165.

Petitioner’s approval of the jury suggests that trial counsel’s presumed

strategic decision not to exercise an available peremptory strike was

reasonable. See Price v. Sec’y Dep’t of Corr., 558 F. App’x 871, 872-73 (11th Cir.

2014) (holding that it was not unreasonable application of clearly established

federal law for the Florida courts to conclude that defendant could not argue

that counsel had been ineffective for failing to strike a juror that the defendant

had approved).12 As such, upon thorough review of the record and the applicable

law, the Court finds that the state court’s decision is neither contrary to nor an

12 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).

unreasonable application of Strickland and is 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 Four 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 of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3. If Petitioner appeals this Order, 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.13

13 The Court should issue a certificate of appealability only if 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.

DONE AND ORDERED at Jacksonville, Florida, this 1st day of June,

2022.

Cirmothag 9. Corrig on

Wy TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Michael King, #D16748

counsel of record

32