Hoffmann v.Secretary, Department of Corrections (Polk County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHESTER HOFFMANN,

Petitioner,

v. CASE NO. 8:19-cv-1775-TPB-AEP

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________________/

ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS

CORPUS

Chester Hoffmann petitions (Doc. 16) under 28 U.S.C. § 2254 for a writ of

habeas corpus and challenges his state court convictions for attempted second-

degree murder with a weapon, witness tampering, and battery. The Respondent

argues (Doc. 14) that some grounds are procedurally barred and that all remaining

grounds are without merit. After reviewing the amended petition, the response, the

relevant state court record (Doc. 14-1), and the reply (Doc. 19), the Court finds as

follows:

Factual and Procedural Background

An information charged Hoffmann with attempted first-degree premeditated

murder, witness tampering in an investigation or proceeding involving a life felony,

and battery. (Doc. 14-2 at 8–9) The information charged the attempted murder

with a sentencing reclassification under § 775.087(1), Fla. Stat., for Hoffmann’s use

of machete during the commission of the crime. (Doc. 14-2 at 8)

A police officer drafted an arrest affidavit which summarizes the relevant

facts (Doc. 14-3 at 84):

On October 12, 2013, the suspect, Chester Hoffmann and his

live-in girlfriend[ ], Chrystal Lazanis got into an argument over

how to deal with the kids. Hoffmann then grabbed Lazanis by

her throat against her will and slammed her head into the

kitchen counter twice. Hoffmann and Lazanis have a child in

common and live together as a family. Lazanis gave a sworn

recorded interview that stated that she had been choked by

Hoffmann and that Hoffmann slammed her head into the

counter twice. Lazanis advised that their two children [were]

home when this incident took place. One child only heard the

incident and the other saw the incident. Lazanis also stated

that she left the residence and went to her neighbor[ ], Serena

Wood’s residence to get help. She stated that she asked Wood

to call 911 and to please go get the kids. She stated that she

then observed Wood leave to get the kids but came back

injured. She stated that there was video outside of her

residence. Lazanis signed a consent to search [ ] her residence,

out[side] building[,] and vehicle on the property.

Hoffmann was interviewed post-Miranda and he confessed to

battering Lazanis and hitting Wood with a large stick.

I learned that Wood had been hit in the back of her head and

on her left arm with an object. I also learned that there was

possibly video of the incident involving Wood. A check revealed

that there was video of the attack on Wood. The video shows

Hoffmann cross the street and crouch down behind an[ ] object

waiting. Hoffmann is then observed moving closer to Wood’s

residence and crouching again. Wood can be seen coming from

her residence crossing the road toward Lazanis’ residence.

Hoffmann is seen jumping out behind Wood and striking her in

the back of the head with what appears to be a machete. Wood

falls and Hoffmann then strikes Wood again while she is on the

ground.

A search of the rear shed revealed a machete. This machete

had what appeared to have blood on it.

I then responded to the Lakeland Regional Medical Center

(LRMC) and conducted a sworn recorded interview with Wood.

She stated that her neighbor Lazanis came over asking for her

to call 911 and to go get the kids from her residence. Wood

stated that she was calling 911 and was walking across the

street from her house to Lazanis’ house to get the kids when

Hoffmann hit her in the back of the head. She stated that she

did not know what she was hit with at first. She stated that

she fell and Hoffmann then stood over her and hit her in the

left arm with a machete. She stated that she got up and ran

back home until the police arrived. Wood stated that she was

transported to the hospital. She stated that she had stitches in

her head and a fractured left arm and [a] large laceration on

her left arm that was going to require surgery.

I then interviewed Hoffmann again at the Central District

Command. When confronted about telling me he hit Wood with

a large stick he stated that it was a machete. He stated that

the machete was in the front yard because he had been

trimming trees. He stated that after hitting Wood with the

machete he put it back in the rear shed where he normally

keeps it. The machete was recovered in the location Hoffmann

advised he had put it.

Hoffmann intentionally obtained a deadly weapon (machete)

and hid waiting for Wood to come by with the intent of causing

death. Hoffmann then ambushed Wood hitting her in the back

of the head with the machete. Hoffmann then proceeded to

stand over Wood and hit her again with the machete.

Wood was admitted to LRMC and is in stable condition.

Facing two life felonies punishable by life in prison for the attempted first-

degree murder and witness tampering charges, Hoffmann entered into an

agreement with the prosecutor. See §§ 775.087(1)(a), 777.04(4)(b), 782.04(1)(a), and

914.22(2)(e), Fla. Stat. The prosecutor agreed to amend the information and reduce

the charges to attempted second-degree murder with a weapon and witness

tampering in a misdemeanor investigation. (Doc. 14-2 at 27–28) In exchange for

the reduction of the charges, Hoffmann agreed to enter an open plea. (Doc. 14-2 at

28) The amended information reduced the attempted murder charge to a first-

degree felony punishable by thirty years and reduced the witness tampering charge

to a third-degree felony punishable by five years. See §§ 775.087(1)(b), 777.04(4)(c),

782.04(2), and 914.22(2)(a), Fla. Stat. The battery charge remained unchanged.

Hoffmann pleaded no contest to the attempted murder and witness

tampering charges and pleaded guilty to the battery charge. (Doc. 14-2 at 39) After

Hoffmann presented mitigating evidence at sentencing (Doc. 14-2 at 47–61), the

trial court sentenced Hoffmann to fifteen years in prison for the attempted murder,

a concurrent five years for the witness tampering, and time served for the battery.

(Doc. 14-2 at 87–95) Hoffmann did not appeal his convictions and sentences and

instead moved for post-conviction relief. (Docs. 14-2 at 124–39 and 14-3 at 41–62)

The post-conviction court denied relief without an evidentiary hearing (Docs. 14-2 at

143–44 and 14-3 at 64–66), and the state appellate court affirmed. (Docs. 14-2 at

214 and 14-3 at 184) Hoffmann’s federal petition follows.

Legal Standards

A. AEDPA

Because Hoffmann filed his federal petition after the enactment of the

Antiterrorism and Effective Death Penalty Act of 1996, AEDPA governs the review

of his claims. Lindh v. Murphy, 521 U.S. 320, 336–37 (1997). AEDPA modified

28 U.S.C. § 2254(d) and created a highly deferential standard for federal court

review of a state court adjudication by requiring:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim —

(1) resulted in a decision that 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) resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceeding.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), interprets this constraint on

the power of the federal habeas court to grant a state prisoner’s petition:

Under the “contrary to” clause, a federal habeas court may

grant the writ if the state court arrives at a conclusion opposite

to that reached by [the U.S. Supreme Court] on a question of

law or if the state court decides a case differently than [the

U.S. Supreme Court] has on a set of materially

indistinguishable facts. Under the “unreasonable application”

clause, a federal habeas court may grant the writ if the state

court identifies the correct governing legal principle from [the

U.S. Supreme Court’s] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.

Clearly established federal law refers to “the holdings, as opposed to the dicta, of

[the U.S. Supreme Court Court’s] decisions as of the time of the relevant state-court

decision.” Williams, 529 U.S. at 412.

“The focus . . . is on whether the state court’s application of clearly

established law is objectively unreasonable . . . .” Bell v. Cone, 535 U.S. 685, 694

(2002). A federal petitioner must show that the state court’s ruling was “so lacking

in justification that there was an error well understood and comprehended in

existing law beyond any possibility of fairminded disagreement.” Harrington v.

Richter, 562 U.S. 86, 103 (2011).

A factual determination by the state court is not unreasonable “merely

because the federal habeas court would have reached a different conclusion in the

first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). A federal habeas court may

grant relief “only if, in light of the evidence presented in the state court proceedings,

no reasonable jurist would agree with the factual determinations upon which the

state court decision is based.” Raleigh v. Sec’y, Fla. Dep’t Corrs., 827 F.3d 938,

948–49 (11th Cir. 2016). Also, a state court’s factual determinations are presumed

correct, and a petitioner carries the burden of rebutting the presumption of

correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell, 535 U.S. at

693. Consequently, “review under [Section] 2254(d)(1) is limited to the record that

was before the state court that adjudicated the claim on the merits.” Cullen v.

Pinholster, 563 U.S. 170, 181 (2011).

If the last state court to decide a federal claim explains its decision in a

reasoned opinion, a federal habeas court reviews the specific reasons in the opinion

and defers to those reasons if reasonable. Wilson v. Sellers, 138 S. Ct. 1188, 1192

(2018). If the last state court decision is without reasons, the federal court “should

‘look through’ the unexplained decision to the last related state-court decision that

does provide a relevant rationale [and] presume that the unexplained decision

adopted the same reasoning.” Id. at 1192.

B. Ineffective Assistance of Counsel

Hoffmann asserts ineffective assistance of counsel — a difficult claim to

sustain. Strickland v. Washington, 466 U.S. 668, 687 (1984), explains:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

“There is no reason for a court deciding an ineffective assistance of counsel

claim . . . to address both components of the inquiry if the defendant makes an

insufficient showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly

presumed to have rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.

“[A] court deciding an actual ineffectiveness claim must judge the reasonableness of

counsel’s challenged conduct on the facts of the particular case, viewed as of the

time of counsel’s conduct.” Id.

“An error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691. To meet this burden the defendant must

show “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. A reasonable

probability is a “probability sufficient to undermine confidence in the outcome.” Id.

“[T]he two-part Strickland v. Washington test applies to challenges to guilty

pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58

(1985). “[W]hen a defendant claims that his counsel’s deficient performance

deprived him of a trial by causing him to accept a plea, the defendant can show

prejudice by demonstrating a ‘reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on going to trial.’” Lee v.

United States, 137 S. Ct. 1958, 1965 (2017) (quoting Hill, 474 U.S. at 59).

Strickland cautions that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable.”

Strickland, 466 U.S. at 690. A defendant cannot meet his burden by showing that

the avenue chosen by counsel was unsuccessful. White v. Singletary, 972 F.2d 1218,

1220–21 (11th Cir. 1992).

Because the standards under Strickland and AEDPA are both highly

deferential, “when the two apply in tandem, review is ‘doubly’ so.” Richter,

562 U.S. at 105. “Given the double deference due, it is a ‘rare case in which an

ineffective assistance of counsel claim that was denied on the merits in state court

is found to merit relief in a federal habeas proceeding.’” Nance v. Warden,

Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (quoting Johnson v. Sec’y,

Dep’t Corrs., 643 F.3d 907, 911 (11th Cir. 2011)).

C. Exhaustion and Procedural Default

A petitioner must exhaust the remedies available in state court before a

federal court can grant relief on federal habeas. 28 U.S.C. § 2254(b)(1)(A). The

petitioner must (1) alert the state court to the federal nature of his claim and (2)

give the state court one full opportunity to resolve the federal claim by invoking one

complete round of the state’s established appellate review process. O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999); Picard v. Connor, 404 U.S. 270, 278 (1971). The

state court must have the first opportunity to review and correct any alleged

violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A federal court may stay — or dismiss without prejudice — a habeas case to

allow a petitioner to return to state court to exhaust a claim. Rhines v. Weber,

544 U.S. 269 (2005); Rose v. Lundy, 455 U.S. 509 (1982). If the state court would

deny the claim as procedurally barred under state law, the federal court instead

denies the claim as procedurally barred on federal habeas. Snowden v. Singletary,

135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 735

n.1 (1991)).

A federal court also denies a claim as procedurally barred if the state court

denied the claim on an independent and adequate state procedural ground.

Coleman, 501 U.S. at 729–30. The last state court reviewing the federal claim must

clearly and expressly state that the ruling rests on the state procedural bar. Harris

v. Reed, 489 U.S. 255, 263 (1989). If the last state court rejected the federal claim in

an unexplained decision, the federal habeas court looks through the unexplained

decision to the last reasoned order to rule on the claim. Ylst v. Nunnemaker,

501 U.S. 797, 803 (1991). If the last reasoned order imposed the state procedural

bar, the federal court presumes that the later unexplained decision did not silently

disregard the bar and consider the merits. Id.

A petitioner may excuse a procedural bar on federal habeas either by showing

cause and actual prejudice from the alleged violation of federal law or by showing a

miscarriage of justice based on actual innocence. Maples v. Thomas, 565 U.S. 266,

280 (2012); House v. Bell, 547 U.S. 518, 536–37 (2006).

Analysis

Ground One

Hoffmann asserts that the prosecutor violated his federal right to due process

by filing an amended information which was not sufficiently precise to apprise him

of the criminal charges (“sub-claim A”) and the state court violated Apprendi v. New

Jersey, 530 U.S. 466 (2000), by imposing the sentencing enhancement for use of a

weapon without a finding by a jury that he used a weapon (“sub-claim B”). (Doc. 16

at 9)

Sub-claim A

Hoffmann asserts that the prosecutor violated his federal right to due process

by filing an amended information which failed to allege that he “actually possessed”

a weapon and contends that the amended information instead erroneously alleged

that he “carried, displayed, used, threatened to use, or attempted to use” a weapon.

(Doc. 16 at 9)

The Respondent asserts that the sub-claim A (1) is unexhausted because

Hoffmann failed to alert the state court to the federal nature of his claim and failed

to raise the claim in the procedurally proper manner and (2) is waived because

Hoffmann entered a plea. (Doc. 14 at 8)

Hoffmann raised the claim in ground three of his motion to correct his

sentence but failed to alert the state court to the federal nature of his claim (Doc.

14-2 at 131–32):

Also in the defendant’s charging information, the State failed

to charge or prove “actual possession” of a weapon [and] only [ ]

alleged that the defendant carried, displayed, used, threatened,

or attempted to use a weapon. Therefore, the State may not use

[Fla. Stat.] § 775.087 felony reclassification in order to

reclassify his offense.

It is a fundamental principal of due process that a defendant

may not be convicted of a crime that has not been charged by

the State. An error that directly results from such a conviction

is “by definition fundamental.”

Hoffmann failed to “cit[e] in conjunction with the claim the federal source of

law on which he relie[d] or a case deciding such a claim on federal grounds, or [ ]

simply label[ ] the claim ‘federal.’” Baldwin, 541 U.S. at 32. His general reference

to “due process” was not enough. Gray v. Netherland, 518 U.S. 152, 163 (1996) (“We

have also indicated that it is not enough to make a general appeal to a

constitutional guarantee as broad as due process to present the ‘substance’ of such a

claim to a state court.”) (citing Anderson v. Harless, 459 U.S. 4 (1982)). Also,

fundamental error is an issue of state law. Pinkney v. Sec’y, Dep’t Corrs., 876 F.3d

1290, 1299 (11th Cir. 2017). Consequently, the claim is unexhausted.

Hoffmann could return to state court to exhaust the federal due process claim

by asserting the claim in a motion to correct his sentence and by appealing the post-

conviction court’s denial of the claim. Battle v. State, 72 So. 3d 311, 312 (Fla. 2d

DCA 2011) (“[A] claim that a sentence was illegally imposed because the

information did not charge the defendant with an element required for his sentence

is cognizable in a rule 3.800(a) motion.”). However, because Hoffmann’s claim is

“plainly meritless,” the Court declines to grant him a stay to exhaust the claim.

Rhines, 544 U.S. at 277 (“[E]ven if a petitioner had good cause for [his failure to

present his claims first to the state courts], the district court would abuse its

discretion if it were to grant him a stay when his unexhausted claims are plainly

meritless.”).

“When a criminal defendant has solemnly admitted in open court that he is

in fact guilty of the offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred

prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973).

“[A]n individual who enters a plea of nolo contendere waives all nonjurisdictional

defects.” United States v. Broome, 628 F.2d 403, 404 (5th Cir. 1980).1 “[T]he

omission from indictment of an element of the charged offense is a nonjurisdictional

defect.” United States v. Brown, 752 F.3d 1344, 1354 (11th Cir. 2014) (citing United

States v. Cotton, 535 U.S. 625 (2002)). However, “when the indictment affirmatively

alleges conduct that does not constitute a crime at all because that conduct falls

outside the sweep of the charging statute,” the charging document is jurisdictionally

defective. Brown, 752 F.3d at 1352 (citing United States v. Peter, 310 F.3d 709

(11th Cir. 2002)).

1 Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (adopting as binding

precedent “the decisions of the United States Court of Appeals for the Fifth Circuit [ ], as

that court existed on September 30, 1981”).

The amended information charged Hoffmann with attempted second-degree

murder with a weapon, as follows (Doc. 14-2 at 22):

Chester R. Hoffmann, on or about October 12, 2013, in the

County of Polk and State of Florida, did unlawfully attempt to

commit murder in the second degree in that by an act

imminently dangerous to another and evincing a depraved

mind regardless of human life, although without any

premeditated design to effect the death of any particular

individual, did attempt to kill Serena Dawn Wood by Serena

Dawn Wood2 and during the commission of said felony Chester

R. Hoffmann carried, displayed, used, threatened to use, or

attempted to use a weapon, contrary to Florida Statutes

775.087, 777.04, and 782.04.

Because the amended information alleged conduct that constitutes attempted

second-degree murder, the amended information was not jurisdictionally defective.

Coicou v. State, 39 So. 3d 237, 241 (Fla. 2010) (“[A]ttempted second-degree murder

has two elements: ‘(1) the defendant intentionally committed an act that could have

resulted, but did not result, in the death of someone, and (2) the act was imminently

dangerous to another and demonstrated a depraved mind without regard for human

life.’”) (citation omitted).

Hoffmann asserts that the amended information failed to allege that he

“actually possessed” a weapon and contends that the amended information instead

erroneously alleged that he “carried, displayed, used, threatened to use, or

attempted to use” a weapon. (Doc. 16 at 9) The prosecutor could not have charged

Hoffmann with a sentencing enhancement for actual possession of a weapon

because that enhancement applies only to the possession of a firearm, destructive

2 The information contains an immaterial scrivener’s error (Doc. 14-2 at 22): “Chester R.

Hoffmann . . . did attempt to kill Serena Dawn Wood by Serena Dawn Wood . . . .”

device, semiautomatic firearm, or machine gun. § 775.087(2), (3), Fla. Stat.

Hoffmann possessed a machete when he committed the attempted murder. (Doc.

14-3 at 84) Consequently, the amended information correctly charged Hoffmann

with “carr[ying], display[ing], us[ing], threaten[ing] to use, or attempt[ing] to use

any weapon.” § 775.087(1), Fla. Stat. Because the amended information alleged

conduct that constitutes a crime, the amended information was not jurisdictionally

defective.

Sub-claim B

Hoffmann asserts that the state court violated Apprendi v. New Jersey, 530

U.S. 466 (2000) by imposing the sentencing enhancement for use of a weapon

without a finding by a jury that he possessed a weapon. (Doc. 16 at 9) The post-

conviction court denied the claim as follows (Doc. 14-2 at 143) (state court record

citations omitted):

. . . Defendant argues that his sentence enhancement for using

a weapon was illegal as the jury did not make a separate

finding that the Defendant used a weapon. The Court would

point out that the Defendant entered an open plea to the

Amended Information. Therefore, no jury finding was

required.3

Apprendi, 530 U.S. at 490, holds that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

3 Hoffmann raised the same claim in his motion for post-conviction relief, and the post-

conviction court denied the claim. (Doc. 14-3 at 57–60, 66) In his Section 2254 petition,

Hoffmann challenges the post-conviction court’s ruling on the claim raised in his motion to

correct sentence. (Doc. 16 at 10) Therefore, this Court evaluates that ruling for

reasonableness under Section 2254(d).

doubt.” By pleading no contest, Hoffmann waived all non-jurisdictional defects in

the state criminal proceedings. Tollett, 411 U.S. at 267; Broome, 628 F.2d at 404.

Because Hoffmann knowingly and voluntarily waived his right to a jury trial when

he pleaded no contest (Doc. 14-2 at 33–36), he waived this Apprendi claim. See

United States v. Cabezas, 136 F. App’x 223, 227 (11th Cir. 2005) (“Because Apprendi

claims are not jurisdictional, and Cabezas’s unconditional guilty plea waived his

right to challenge all non-jurisdictional defects, we decline to address the merits of

his challenge.”).

Even so, the amended information charged Hoffmann with attempted

second-degree murder with a weapon. (Doc. 14-2 at 22) The imposition of the

sentencing enhancement under Section 775.087(2) for use of a weapon during the

commission of the crime increased the statutory maximum from fifteen years for a

second-degree felony to thirty years for a first-degree felony. §§ 775.082(3)(b), (d)

and 775.087(1)(b), Fla. Stat. When Hoffmann pleaded no contest, he admitted every

element of the offense charged in the amended information. (Doc. 14-2 at 33–36)

Lott v. United States, 367 U.S. 421, 426 (1961) (“Although it is said that a plea of

nolo contendere means literally ‘I do not contest it,’ and ‘is a mere statement of

unwillingness to contest and no more,’ it does admit ‘every essential element of the

offense (that is) well pleaded in the charge.’”) (citations omitted).

At the change of plea hearing, Hoffmann confirmed that he had reviewed all

relevant discovery in the case (Doc. 14-2 at 30):

[Court:] And we’ve had many hearings in this

case, is that correct?

[Hoffmann:] Yes, ma’am.

[Court:] And so, you’ve had . . . you feel

comfortable going forward knowing what

you know about this case?

[Hoffmann:] Yes, ma’am.

[Court:] And so you know about all the witnesses

— you know about the discovery — you

know about a videotape — you know

about all the facts in this case, correct?

[Hoffmann:] Yes, ma’am.

Because the sentencing enhancement for use of a weapon under Section

775.087(1) did not violate Apprendi, the post-conviction court did not unreasonably

deny the claim. Ground One is denied.

Ground Two

Hoffmann asserts that the trial court denied his Sixth Amendment right to

be informed of the nature and cause of the accusation. (Doc. 16 at 11) He contends

that the trial court neither provided him a copy of the amended information nor

read the charges to him in open court and that trial counsel never advised him of

the nature of the charges. (Doc. 16 at 11)

The Respondent asserts that the claim is unexhausted and procedurally

barred. (Doc. 14 at 9) Hoffmann responds that he raised the claim in his motion to

correct his sentence but contends that the post-conviction court never ruled on the

claim. (Doc. 16 at 11) He further contends that he raised the claim in his motion

for post-conviction relief filed on September 26, 2017. (Doc. 16 at 12) In Hoffmann’s

motion to correct his sentence (Doc. 14-2 at 124–38) and his amended motion for

post-conviction relief (Doc. 14-3 at 41–62), Hoffmann failed to raise the claim.

Hoffmann arguably raised the claim in his brief on appeal of the order

denying his motion to correct his sentence. (Doc. 14-2 at 194–95, 198) However, a

state appellate court will not review a claim raised for the first time on post-

conviction appeal. Jackson v. State, 93 So. 3d 395, 396 (Fla. 2d DCA 2012). He

arguably raised the claim in his second motion to correct his sentence. (Doc. 14-4 at

102–03, 106) However, he failed to appeal the post-conviction court’s order denying

relief. (Doc. 14-2 at 2) Even so, the Sixth Amendment claim attacking his

convictions was not cognizable in the Rule 3.800(a) proceedings. Parish v. State,

249 So. 3d 734, 735 (Fla. 2d DCA 2018) (“‘[R]ule 3.800(a) is limited to claims that a

sentence itself is illegal, without regard to the underlying conviction.’”) (citation

omitted).

Because Hoffmann failed to give the state court one full opportunity to

resolve the federal claim by invoking one complete round of the state’s established

appellate review process, Hoffmann failed to exhaust his remedies in state court.

Boerckel, 526 U.S. at 845. Porter v. Att’y Gen., 552 F.3d 1260, 1268 (11th Cir. 2008),

rev’d on other grounds, Porter v. McCollum, 558 U.S. 30 (2009). If Hoffmann

returned to state court to exhaust his remedies, the post-conviction court would

deny the claim on a state procedural ground. Snowden, 135 F.3d at 736. Fla. R.

Crim. P. 3.850(c) (“This rule does not authorize relief based on grounds that could

have or should have been raised at trial and, if properly preserved, on direct appeal

of the judgment and sentence.”). Because Hoffmann fails to demonstrate either

cause and actual prejudice or a miscarriage of justice to excuse the procedural bar,

the claim is barred from federal review. Maples, 565 U.S. at 280; House, 547 U.S. at

536–37.

Even if exhausted, Hoffmann waived all non-jurisdictional defects by

pleading no contest. Tollett, 411 U.S. at 267; Broome, 628 F.2d at 404. Because a

violation of the Sixth Amendment right to be informed of the nature and cause of

the accusation would not deprive the state court of subject matter jurisdiction over

the felony prosecution for a violation of state law, Hoffmann waived the claim by

entering his plea. Ground Two is denied.

Ground Three

Hoffmann asserts that trial counsel was ineffective for not communicating a

plea offer (“sub-claim A”), for not objecting to the sentence or filing a motion to

correct the sentence while the appeal was pending (“sub-claim B”), and for not

objecting to the sentencing reclassification for use of a weapon during the

commission of the crime (“sub-claim C”). (Doc. 16 at 12–13)

Sub-claim A

Hoffmann asserts that trial counsel was ineffective “for failing to

communicate a plea deal to [Hoffmann] in its [entirety].” (Doc. 16 at 12) The

Respondent asserts that the claim is unexhausted. (Doc. 14 at 11)

In his amended motion for post-conviction relief, Hoffmann asserted that trial

counsel was ineffective for “mislead[ing] [him] as to how much time he would

receive if [he] took the plea offer.” (Doc. 14-3 at 52) In his brief on appeal, he also

asserted that trial counsel was ineffective for misadvising him about the sentence

that he would receive if he entered the plea. (Doc. 14-3 at 117–18, 119–20) Because

Hoffmann gave the state court one full opportunity to resolve the federal claim by

invoking one complete round of the state’s established appellate review process, he

exhausted his remedies in state court. Boerckel, 526 U.S. at 845.

The post-conviction court denied the claim as follows (Doc. 14-3 at 65) (state

court record citations omitted):

[T]he Defendant asserts that trial counsel misled the

Defendant as to the sentence he would receive if he entered a

plea . . . . The Defendant asserts that trial counsel advised him

that he would be sentenced to a 15-year split sentence whereas

the sentencing court sentenced him to a 30-year split sentence.

The Defendant also complains that the sentencing court

indicated that he would be sentenced as to count 1 to a second-

degree felony whereas he was sentenced as to a first-degree

felony on count 1.

The transcript of the Defendant’s plea and sentencing hearing

make[s] clear that the State had agreed to reduce counts 1 and

2 when the Defendant agreed to enter an open plea to the

sentencing court. Count 1 was reduced from attempted murder

in the first degree (weapon) to attempted second degree murder

(weapon). Count 2 was also reduced from a life felony to a

third-degree felony.

The transcript of the Defendant’s plea hearing reflects that the

Defendant was advised by the sentencing court that he was

charged with a first-degree felony as to count 1 punishable by

up to 30 years prison. The Defendant indicated he understood

the charges against him and that the sentencing court could

impose any sentence up to the maximum permitted by law.

Additionally, the transcript of the plea hearing reflects that the

Defendant was satisfied with trial counsel’s representation and

that he had the opportunity to review the evidence in the case.

Based on the above, [the claim] is denied.

At the change of plea hearing, in the presence of Hoffmann, trial counsel

informed the trial judge that the prosecutor and Hoffmann had reached an

agreement (Doc. 14-2 at 28):

[Trial counsel:] Yes, Your Honor. . . [T]he State in my

understanding is going to amend the

information to attempted second-degree

murder.

[Court:] Okay.

[Trial counsel:] And they’re going to amend the tampering

to a third-degree felony.

[Court:] Alright.

[Trial counsel:] . . . and the domestic battery will stay the

same as a first-degree misdemeanor.

[Court:] Alright.

[Trial counsel:] . . . in return Mr. Hoffmann, is going to do

an open plea for those charges.

[Court:] Alright.

[Trial counsel:] And we are . . . going to ask for a PSI and

ask that this be set for roughly six weeks.

[Court:] Are we ready — is there an amended

information?

[Prosecutor:] It’s on its way up, Judge.

Before Hoffmann pleaded guilty, the trial judge informed Hoffmann of the

nature of each charge and the statutory maximum for each charge (Doc. 14-2 at

29–31):

[Court:] And Mr. Hoffmann, we’re here on an

amended information. It is my

understanding you’re going to enter a plea

today and then we’re going to set [ ]

sentencing. Is that your understanding?

[Hoffmann:] Yes, ma’am.

[Court:] If you will raise your right hand. Do you

swear to tell the truth, the whole truth,

and nothing but the truth?

[Hoffmann:] Yes, ma’am.

. . .

[Court:] Alright, sir. You’re here on the amended

information that was filed today. You’re

charged with attempted murder in the

second degree which is a first-degree

felony, punishable by thirty years in

Florida State Prison. Count Two,

tampering with a witness in a non-felony

investigation which is a third-degree

felony, punishable by five years [of]

incarceration. And Count Three, domestic

battery, punishable by 364 days in the

Polk County Jail. It’s my understanding

that you’re going — you wish to enter a —

a plea in this case? Is that correct?

[Hoffmann:] Yes, ma’am.

[Court:] Now have you had all the time that you

need to discuss this case with your

attorney?

[Hoffmann:] Yes, ma’am.

[Court:] And we’ve had many hearings in this

case, is that correct?

[Hoffmann:] Yes, ma’am.

[Court:] And so, you’ve had . . . you feel

comfortable going forward knowing what

you know about this case?

[Hoffmann:] Yes, ma’am.

[Court:] And so you know about all the witnesses

— you know about the discovery — you

know about a videotape — you know

about all the facts in this case, correct?

[Hoffmann:] Yes, ma’am.

[Court:] And you believe knowing that and

discussing it with your attorney — do you

think it’s in your best interest to enter

this plea?

[Hoffmann:] Yes, ma’am.

[Court:] You understand that the court — that

there is no plea agreement in place so

that it will be up to the court to determine

what the — what the appropriate

sentence is in this case? . . .

. . . And we’re going to do a pre-sentence

investigation, so you’ll have an

opportunity to speak as well, as they will

do some background on you, sir, and talk

to your family members as well and

they’ll certainly be allowed to come to

sentencing and speak on your behalf —

you understand the process?

[Hoffmann:] Yes, ma’am.

[Court:] Is there anything else that you want your

attorney to do in this case, that he has not

done?

[Hoffmann:] No, ma’am.

[Court:] Are you satisfied with his services?

[Hoffmann:] Yes, ma’am.

An information initially charged Hoffmann with attempted first-degree

premeditated murder with a weapon and tampering with a witness in an

investigation or proceeding involving a life felony. (Doc. 14-2 at 8) Both crimes

were life felonies punishable by life. §§ 775.082(3)(a)(3), 775.087(1)(a), 777.04(4)(b),

782.04(1)(a), 914.22(2)(e), Fla. Stat. Strickland v. State, 437 So. 2d 150, 152 (Fla.

1983). As part of the agreement with Hoffmann, the prosecutor reduced the charges

to attempted second-degree murder with a weapon, a first-degree felony punishable

by thirty years, and tampering with a witness in a misdemeanor investigation, a

third-degree felony punishable by five years. (Doc. 14-2 at 22) §§ 775.082(3)(b)(1),

(3)(e), 775.087(1), 777.04(4)(c), 782.04(2), and 914.22(2)(a), Fla. Stat.

Before Hoffmann entered his plea, the trial judge asked Hoffmann if he

understood the nature of each charge in the amended information and the statutory

maximum sentence for each charge. The trial judge further asked Hoffmann if he

understood that he would enter a plea without an agreement concerning the length

of the sentence and that the trial judge would determine the appropriate sentence.

Hoffmann’s representations under oath that he understood the terms of the plea

“carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73–74

(1977) (“For the representations of the defendant, his lawyer, and the prosecutor at

such a hearing, as well as any findings made by the judge accepting the plea,

constitute a formidable barrier in any subsequent collateral proceedings. Solemn

declarations in open court carry a strong presumption of verity.”).

Even though the trial judge did not inform Hoffmann that he was pleading

guilty to attempted second-degree murder “with a weapon,” the trial judge

accurately informed Hoffmann that he was pleading guilty to a first-degree felony

punishable by thirty years. (Doc. 14-2 at 29) The record further demonstrates that

the prosecutor filed the amended information charging attempted second-degree

murder with a weapon in open court, just before Hoffmann entered his plea. (Doc.

14-2 at 28) The amended information listed the charge in capital letters as

“attempted murder in the second degree (weapon).” (Doc. 14-2 at 22) Because the

record demonstrates that the trial judge adequately informed Hoffmann of the

nature of the charges and the sentences that he faced, the record refuted

Hoffmann’s claim, and the post-conviction court did not unreasonably deny the

claim.

Lastly, even if trial counsel deficiently performed, Hoffmann could not

demonstrate a “‘reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.’” Lee, 137 S. Ct. at

1965 (quoting Hill, 474 U.S. at 59). A video recording of the crime showed that

Hoffmann snuck up behind the unarmed victim, struck her on the head with a

machete and caused her to fall, and struck her again with the machete while she

was on the ground. (Doc. 14-3 at 84) The victim told police that she was calling 911

to report that Hoffmann had battered his wife when Hoffmann struck her with the

machete. (Doc. 14-3 at 84) Hoffmann admitted to police that he struck the victim

with the machete and told police that he had placed the machete in a shed after the

crime. (Doc. 14-3 at 84) Police found the machete in the shed and observed blood

on the machete. (Doc. 14-3 at 84)

Facing an attempted first-degree murder charge which carried a life sentence

and which was supported by overwhelming, irrefutable evidence of guilt, including

Hoffmann’s own confession, Hoffmann could not demonstrate a reasonable

probability that he would have rejected the extremely favorable plea offer and

insisted on going to trial. Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (“[A]

petitioner must convince the court that a decision to reject the plea bargain would

have been rational under the circumstances.”); Diveroli v. United States, 803 F.3d

1258, 1265 (11th Cir. 2015) (holding that the defendant failed to demonstrate that

rejecting the plea would have been rational under the circumstances where “the

record establishe[d] that [the defendant] faced overwhelming evidence of guilt and

had no valid affirmative defenses”).

Sub-claim B

Hoffmann asserts that trial counsel was ineffective for not objecting to the

sentence or filing a motion to correct the sentence while the appeal was pending.

(Doc. 16 at 12–13) The post-conviction court denied the claim as follows (Doc. 14-3

at 65–66) (state court record citations omitted):

[T]he Defendant asserts that trial counsel failed to object to the

Defendant being sentenced for a first-degree felony offense

after orally pronouncing count 1 as a second-degree felony

offense. The Court can find no indication that the trial court

indicated that count 1 was a second-degree felony offense. To

the contrary, at the plea hearing the trial court clearly advised

the Defendant that he was entering a plea to a first-degree

felony on count 1 (attempted second degree murder). The

judgment and sentence in this case correctly reflects the oral

pronouncement of the sentencing court. Based on the above,

[the claim] is denied.

As explained above, before Hoffmann entered the plea, the trial judge

confirmed that Hoffmann understood that he was pleading no contest to attempted

second-degree murder, a first-degree felony punishable by thirty years. (Doc. 14-2

at 29) At sentencing, the trial judge pronounced Hoffmann’s sentence as follows

(Doc. 14-2 at 76–77):

[Court:] All right, sir. I will adjudicate you of all

charges. As to the domestic battery

charge, I’ll sentence you to time served.

As to the tampering with a witness

charge, I’ll sentence you to five years

Florida State Prison. As to the attempted

second-degree murder charge, I’ll

sentence you to fifteen years Florida State

Prison, followed by fifteen years of

probation. . . .

The judgment reflects that Hoffmann pleaded guilty to attempted second-degree

murder, a violation of Section 782.04 and a first-degree felony, and the written

sentence reflects that he received a fifteen-year prison sentence. (Doc. 14-2 at 88,

91) If trial counsel had objected to the sentence, the trial court would have

overruled the objection. Consequently, the post-conviction court did not

unreasonably deny the claim. Pinkney, 876 F.3d at 1297 (“[A]n attorney will not be

held to have performed deficiently for failing to perform a futile act, one that would

not have gotten his client any relief.”).

Sub-claim C

Hoffmann asserts that trial counsel was ineffective for not objecting to the

sentencing reclassification for use of a weapon during the commission of the crime

because “the grounds for the enhancement must be clearly charged in the

information.” (Doc. 16 at 12–13) The Respondent asserts that the claim is

unexhausted. (Doc. 14 at 11)

In both his amended motion for post-conviction relief (Doc. 14-3 at 60) and his

brief on post-conviction appeal (Doc. 14-3 at 128), Hoffmann failed to fairly present

the federal claim to the state court. Kelley v. Sec’y, Dep’t Corrs., 377 F.3d 1317,

1345 (11th Cir. 2004) (“‘The ground relied upon must be presented face-up and

squarely; the federal question must be plainly defined. Oblique references which

hint that a theory may be lurking in the woodwork will not turn the trick.’”)

(quoting Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988)).

If Hoffmann returned to state court to exhaust the claim, the state court

would deny the claim as untimely and successive. Fla. R. Crim. P. 3.850(b), (h).

Consequently, the claim is procedurally barred in federal court. Snowden, 135 F.3d

at 736. Because Hoffmann fails to demonstrate either cause and actual prejudice or

a miscarriage of justice to excuse the procedural bar, the claim is procedurally

barred from federal review. Maples, 565 U.S. at 280; House, 547 U.S. at 536–37.

Even so, the record refutes the claim. The amended information charged

Hoffmann with the sentencing reclassification for use of a weapon during the

commission of the crime under Section 775.087(1). (Doc. 14-2 at 22) By pleading no

contest, Hoffmann admitted every element of the crime charged. Lott, 367 U.S. at

426. The arrest affidavit states that Hoffmann attempted to murder the victim

with a machete. (Doc. 14-3 at 84) Because the trial court would have overruled an

objection to the sentencing reclassification, trial counsel did not deficiently perform.

Pinkney, 876 F.3d at 1297. Ground Three is denied.

Ground Four

Hoffmann asserts that the judgment and sentence do not conform with the

trial judge’s oral pronouncement of the sentence. (Doc. 16 at 14–15) He asserts

that, because the sentencing order imposes a sentence that is harsher than the

sentence imposed by the trial judge’s oral pronouncement, the state court violated

his federal right against double jeopardy. (Doc. 16 at 14)

Hoffmann raised this claim in ground four of his amended motion for post-

conviction relief (Doc. 14-3 at 55–56) and in ground three of his brief on post-

conviction appeal. (Doc. 14-3 at 123–24) Even though the post-conviction court did

not address the double jeopardy claim in the order denying relief (Doc. 14-3 at

65–66), this Court presumes that the post-conviction court adjudicated the claim on

the merits. Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When a state court

rejects a federal claim without expressly addressing that claim, a federal habeas

court must presume that the federal claim was adjudicated on the merits — but

that presumption can in some limited circumstances be rebutted.”). Hoffmann must

demonstrate no reasonable basis for the denial of relief. Richter, 562 U.S. at 98.

As explained above, the record demonstrates that the trial judge pronounced

Hoffmann’s sentences as follows: (1) time served for domestic battery, (2) fifteen

years of prison for attempted second-degree murder, and (3) a concurrent five years

for witness tampering. (Doc. 14-2 at 76–77) The judgment reflects that Hoffmann

pleaded guilty to attempted second-degree murder, a first-degree felony, witness

tampering, a third-degree felony, and battery, a first-degree misdemeanor. (Doc.

14-2 at 87) The written sentence reflects that Hoffmann received fifteen years for

the attempted murder, a concurrent five years for the witness tampering, and time

served for the battery. (Doc. 14-2 at 91–93) Because the record demonstrates that

the written sentence conforms with the trial judge’s oral pronouncement, the record

refutes the claim. Consequently, the post-conviction court did not unreasonably

deny the claim. Ground Four is denied.

Conclusion

Because Hoffmann fails to meet his heavy burden under AEDPA, his

amended petition for the writ of habeas corpus (Doc. 16) is DENIED. The clerk

must enter a judgment against Hoffmann and CLOSE the case.

Denial of Certificate of Appealability and

Leave to Appeal In Forma Pauperis

Because Hoffmann fails to show that reasonable jurists would debate either

the merits of the underlying claims or the procedural issues that he seeks to raise, a

certificate of appealability and leave to appeal in forma pauperis are DENIED.

28 U.S.C. § 2253(c)(2). Slack v. McDaniel, 529 U.S. 473, 478 (2000).

DONE and ORDERED in Chambers, in Tampa, Florida, on this 25th day of

August, 2022.

—TOMBARBER

UNITED STATES DISTRICT JUDGE

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