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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KAREN HIGGINBOTHAM,

Petitioner,

v. Case No. 3:20-cv-811-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Karen Higginbotham, an inmate of the Florida penal system,

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

Pursuant to 28 U.S.C. § 2254. See Doc. 1. Petitioner challenges two state court

(Duval County, Florida) judgments rendered in State v. Higginbotham, Nos.

2015-CF-2675 and 2015-CF-5286. Petitioner is serving a cumulative eighteen-

year term of incarceration. Respondents responded. See Doc. 12 (Resp.).1

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

as “Resp. Ex.”

Petitioner declined to file a reply. See Doc. 14. This case is ripe for review.2

II. Governing Legal Principles

A. Standard Under AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal habeas corpus petition. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions in

the state criminal justice systems, and not as a means of error correction.’” Id.

(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale for the state court’s

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

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

1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060

(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court

must consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

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

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

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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

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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

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

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

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

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

The two-part Strickland test applies to challenges to the validity of guilty

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

58 (1985). The petitioner must still show that counsel’s performance was

deficient. See id. at 56-59; Lynch v. Sec’y Fla. Dept. of Corr., 776 F.3d 1209,

1218 (11th Cir. 2015). To establish prejudice, however, the petitioner “must

show that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.”

Hill,474 U.S. at 59 (footnote omitted); Lynch, 776 F.3d at 1218.

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). Since both prongs of the two-part Strickland test must be satisfied to

show a Sixth Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.

(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in

Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of

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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).

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III. Procedural History and Facts

On March 3, 2016, Petitioner entered a plea of guilty in 2015-CF-2675 to

eighteen counts of grand theft (counts one through eighteen) and one count of

schemes to defraud (count nineteen). Resp. Ex. B at 38. That same day,

Petitioner entered a plea of guilty in 2015-CF-5286 to one count of schemes to

defraud (count one) and ten counts of grand theft (counts three through twelve).

Id. In exchange for her guilty pleas, the state agreed to nol pros count two in

2015-CF-5286. Id. at 86.

On May 4, 2016, the trial court sentenced Petitioner in 2015-CF-2675 to

a five-year term of incarceration as to counts one through eighteen, and a

concurrent eighteen-year term of incarceration as to count nineteen. Resp. Ex.

B at 54-59. That same day, the trial court sentenced Petitioner in 2015-CF-5286

to an eighteen-year term of incarceration on count one, and a concurrent five-

year term of incarceration as to counts three through twelve. Id. at 40-46. The

trial court further ordered that the sentences imposed in 2015-CF-2675 run

concurrent to the sentences imposed in 2015-CF-5286. Id. at 45. Petitioner, with

help from appellate counsel, sought a direct appeal of each judgment, id. at 83.

The First District Court of Appeal then consolidated the two appeals for review.3

3 The direct appeals were consolidated for purposes of travel and assignment to

the same panel of judges for disposition but proceeded on separate records and briefs.

Resp. Ex. D.

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Resp. Ex. D; see also Higginbotham v. State, Nos. 1D16-2523 (direct appeal of

2015-CF-5286); 1D16-2524 (direct appeal of 2015-CF-2675). On August 30,

2017, the First DCA affirmed both judgments with citation. Resp. Ex. D.4

Petitioner later filed an identical pro se Florida Rule of Criminal

Procedure 3.850 motion in both cases. Resp. Ex. J at 6. After the state

responded, id. at 20-95, the trial court summarily denied the Rule 3.850 motion,

id. at 96-99. Petitioner appealed the trial court’s denial, and the First DCA per

curiam affirmed the order without a written opinion. Resp. Ex. M. The Petition

followed.

IV. Analysis

A. Ground One

Petitioner argues that double jeopardy precludes her convictions for

schemes to defraud and grand theft because the convictions are based on

common allegations. Doc. 1 at 7.

Petitioner, with help from appellate counsel, raised this issue in each of

her initial briefs on direct appeal. Resp. Ex. C. In its answer brief, the state

argued Petitioner was precluded from raising a double jeopardy argument

because her convictions stemmed from a negotiated and bargained-for plea

4 Because the direct appeal briefs and both First DCA opinions are identical,

Respondents have only included in their Response exhibits the documents from

Higginbotham, 1D16-2523. Resp. at 5 n. 2.

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agreement with the state. Id. at 8. Petitioner filed a reply, arguing she did not

enter her pleas in exchange for a bargained-for sentence but plead “straight to

the court.” Resp. Ex. F. The First DCA found Petitioner’s argument lacked

merit, stating as follows as to each appellate case:

AFFIRMED. See Novaton v. State, 634 So. 2d 607, 609

(Fla. 1994) (double jeopardy claims waived when

defendant enters into negotiated plea agreement).

Resp. Ex. G; Higginbotham v. State, 230 So. 3d 70 (Fla. 1st DCA 2017). The

Court addresses the claim in accordance with the deferential standard for

federal court review of state court adjudications.

The double jeopardy clause of the Fifth Amendment protects “against a

second prosecution for the same offense after acquittal. It protects against a

second prosecution for the same offense after conviction. And it protects against

multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165

(1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). In Novaton,

634 So. 2d at 607, the Florida Supreme Court, relying on United States v. Broce,

488 U.S. 563 (1989), discussed the “general rule” that “a plea of guilty and

subsequent adjudication of guilt precludes a later double jeopardy attack on the

conviction and sentence.” Novaton, 634 So. 2d at 609.

The [Florida Supreme Court] explained, however, an

exception to this rule existed, where (1) the plea was

general, rather than negotiated; (2) the double jeopardy

violation was apparent from the record; and (3) nothing

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in the record indicated a waiver of the double jeopardy

violation. Id. That exception did not apply in Novaton,

because the defendant had entered into a bargained-for

plea agreement. Id. In its decision, however, the state

court noted that “Novaton neither request[ed] that [his

plea] agreement be vacated nor claim[ed] that it was

invalid because it was not voluntarily and intelligently

entered into.” Id.

Calhoun v. Sec’y, Fla. Dep’t of Corr., 604 F. App’x 968, 971 (quoting Novaton,

634 So. 2d at 609)).

Here, Petitioner argues that she did not waive any double jeopardy claim

because her pleas were not negotiated but were “straight up” or “open pleas” to

the court with no agreed upon disposition. Doc. 1 at 7. While Petitioner’s plea

form states her pleas in each case were entered “straight to the Court,” the plea

form is titled “Plea of Guilty and Negotiated Sentence” and nothing in her

current claim, nor her claim presented on direct appeal, suggests she challenges

the voluntary nature of those pleas. Resp. Ex. B at 38.

Notably, during her plea colloquy, the trial court explained that

Petitioner was entering a “plea and negotiated sentence in a very small way,

meaning the negotiated portion is that the State agreed to drop Count 2 in case

16-2015-CF-005286.” Resp. Ex. B at 86. Petitioner then acknowledged on the

record in open court that she understood that by entering her pleas, she waived

certain constitutional rights, including her right to have the state prove the

charges against her beyond a reasonable doubt. Id. at 90-92. The state then

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presented the following factual basis to support Petitioner’s pleas:

[O]n Case 2015-CF-2675.

As to Counts 1 through 18, the State would be

prepared to demonstrate that on the date listed in each

count, in Duval County, State of Florida, the defendant,

while employed at Barco-Duval Engineering, wrote

checks, essentially, to herself. Each of those checks was

in the amount greater than $300, but less than an

amount of $20,000. Most of them ranged between

$5,000 and $9,000.

As to Count 1, a check was written on May 31st,

2013. As to Count 2, July 8th, 2013. As to Count 3,

August 19th, 2013. As to Count 4, a second check,

August 19th, 2013. As to Count 5, September 19th of

2013. As to Count 6, November 27th of 2013. As to

Count 7, March 1st of 2014. As to Count 8, April 2nd of

2014. As to Count 9, April 18th of 2014. As to Count 10,

May 1st of 2014. As to Count 11, May 22nd of 2014. As

to Count 12, May 23rd of 2014. As to Count 13, June

10th of 2014. As to Count 14, July 15th of 2014. As to

Count 15, August 13th of 2014. As to Count 16,

September 26th of 2014. As to Count 17, December the

14th of 2014. As to Count 18, January 9th of 2015.

And as to Count 19, schemes to defraud , Your

Honor, in addition to and separate from the

aforementioned checks, this defendant, during the

dates in question, specifically alleged to be between

December 31st, 2010 and March 18th of 2015,

transferred by automatic payment 81 payments to a

VISA account from the business to her own account.

And the total loss to the engineering company, between

the checks, as I’ve referenced, as well as the -- and, I’m

sorry, she -- 81 payments to a VyStar VISA, 89

transactions to a Capital One VISA, and then the 18

checks, the grand total being approximately

$464,857.17.

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As to Case Number 2015-CF-5286, this involved

a separate and additional company, specifically K&G

Construction, Your Honor, and I’ll begin as to Counts 3

through 12.

In this case, again, there were checks and

payments to Bank of America, each in the amount

greater than $300 but less than $20,000. All occurred

in Duval County, State of Florida. And as it relates

specifically to Count 3, between June 13th of 2012 and

June 9th of 2015. As to Count 4, between February 20th

of 2014 and June 9th of 2015. As to Count 5, between

March 5th of 2014 and June 9th of 2015. As to Count 6,

between June 16th of 2014 and June 9th of 2015. As to

Count 7, between July 18th of 2014 and June 9th of

2015. As to Count 8, between August 4th of 2014 and

June 9th of 2015. As to Count 9, between September

4th, 2014 and June 9th, 2015. As to Count 10, between

October 3rd, 2014 and June 9th of 2015. As to Count

11, between November 18th of 2014 and June 9th of

2015. And as to Count 12, between December 5th of

2014 and June 9th, 2015.

In addition, as to Count 1, which occurred

between June 13th of 2012 and June 9th of 2015, the

records document and reflect that there were 107

automatic payment transactions from the business

checking account of that company to a VyStar VISA

belonging to the defendant; 70 additional automatic

payment transactions to a Capital One VISA account,

and the co-monthly payments to Bank of America as it

relates to the account.

In essence, Your Honor, the total loss to K&G

Construction is approximately $405,675.07.

Resp. Ex. B at 94-97. The following exchange then occurred:

THE COURT: Mr. Mantei, as to Count 2 in Case 5286,

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will that be a nolle pros at the time of sentencing?

MR. MANTEI: It will, Your Honor. Nolle pross as to

that count, code 30.

THE COURT: Is that today or at sentencing?

MR. MANTEI: I’ll do it today, since, actually, I think it

would arguably be subject to a double jeopardy attack,

so I don’t mind doing that today.

THE COURT: And so would you please so state that on

the record.

MR. MANTEI: I will do that, yes. Nolle pros code 30 to

Count 2 in Case 2015-5286.

THE COURT: Ms. Higginbotham, do you all

understand all the charges against you?

THE DEFENDANT: Yes, ma’am.

THE COURT: And are you fully comfortable proceeding

forward with your pleas of guilty to all counts in Case

2675 and all remaining counts in Case 5286, as Count

2 has been dropped?

THE DEFENDANT: Yes, ma’am.

Id. at 97-98. The parties then discussed Petitioner’s sentencing guidelines and

advised the trial court that Petitioner faced a minimum sentence of 119.7

months incarceration and a maximum sentence of 200 years incarceration. Id.

at 114. Petitioner acknowledged her sentence exposure and explained that she

understood her sentencing hearing would be conducted at a future date. Id. at

116. The trial court then accepted her guilty pleas, finding they were entered

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knowingly, voluntarily, and with full understanding of the consequences

therefrom. Id. at 116-18.

The factual basis, read into the record and which Petitioner agreed to

under oath, demonstrates the charges were not based on the same conduct. The

grand theft counts were based on Petitioner using checks to deprive the victims

of funds, and each scheme to defraud count was based on Petitioner

automatically transferring funds to her bank accounts. Petitioner’s own

statements at the plea hearing confirm she understood the charges and the

consequences of pleading guilty to those charges. In exchange for her pleas of

guilty, the state agreed to nol pros count two in 2015-CF-5286. Thus, double

jeopardy does not apply to bar any of the charges to which Petitioner pleaded

guilty. While the record suggests that count two of 2015-CF-528 may have

presented a double jeopardy issue, during the sentencing hearing, trial counsel

explained that he was the one who noticed count two’s potential double jeopardy

problem. Resp. Ex. B at 109. And according to trial counsel, when he

communicated that issue to the state during plea discussions, the state agreed

to drop that charge and recalculate the sentencing guidelines accordingly. Id.

To that end, at the time of her pleas, Petitioner knew she was facing a maximum

200-year term of incarceration, but as more fully explained in Ground Two, she

strategically pled guilty “straight to the court” and without an agreed-upon

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disposition, so she could request the imposition of a downward departure

sentence. See Resp. Ex. B at 146.

Petitioner’s guilty pleas contained negotiated and bargained-for aspects.

Based on that record evidence, the Court is not inclined to disregard the

deference owed to the state court in adjudicating this issue, nor is it convinced

that Petitioner entered those pleas involuntarily rendering them invalid. Thus,

upon review of the record, the Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts considering

the evidence presented in the state court proceedings. See, e.g., Howze v. Sec’y,

Dep’t of Corr., No. 3:15-cv-938-J-39PDB, 2017 WL 5573183, at *5 (M.D. Fla.

Nov. 20, 2017) (finding that the petitioner had the opportunity to contradict the

indictments based on double jeopardy but his opportunity was foreclosed once

he entered his guilty pleas to those indictments); Maynor v. Sec’y, Dep’t of Corr.,

No. 8:13-cv-3146-T-36TBM, 2016 WL 718899, at *3-*4 (M.D. Fla. Dec. 12, 2016)

(finding that the petitioner waived his double jeopardy claim by entering his

guilty pleas when the factual basis of each count of robbery involved different

victims and conduct).5 Ground One is denied.

5 The Court notes that although decisions of other district courts are not

binding, they may be cited as persuasive authority. See Stone v. First Union Corp.,

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B. Ground Two

Petitioner argues that her trial counsel was ineffective for failing to

advise her of the state’s plea offer and instead misadvising her that an open

plea of guilty or trial were her only options. Doc. 1 at 9.

Petitioner raised this claim in her Rule 3.850 motion filed in state court.

Resp. Ex. J at 9-11. The state filed a response to the motion, arguing this claim

should be denied:

The record at the Defendant’s sentencing hearing held

on March 2, 2016 refutes her claim that her attorney

failed to present her with a favorable offer. The record

demonstrates that the State had offered the Defendant

a 15 to 25 year range in prison. The Defendant,

however, rejected this offer and chose to plea to the

mercy of the court hoping that the sentence would be

closer to the guidelines of 10 years. The record also

shows that in spite of her counsel’s advice to present a

counteroffer [of] 15 years, the Defendant instead chose

to enter a plea to the Court. It is difficult to see how the

Defendant can now claim that she was never presented

with the 15 year offer by the State. (See State’s Ex. A:

Pages 5 to 10 of Court Proceedings held on March 2,

2016).

Resp. Ex. J at 21.6 The trial court adopted the state’s response and summarily

denied this claim, explaining it “carefully reviewed the response and f[ound]

371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court would

not be bound to follow any other district court’s determination, the decision would have

significant persuasive effects.”).

6 The trial court sentenced Petitioner on May 4, 2016, not March 2, 2016, as the

state alleged in its Rule 3.850 response.

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that it address[ed] [the] claim with both factual and legal accuracy” and

“therefore [found] it appropriate and judicially efficient to adopt the State’s

response as the [trial] [c]ourt’s findings.” Id. at 98. Petitioner appealed arguing

that a transcript of the March 2, 2016, hearing that the state relied on in its

response, and that the trial court ultimately relied on in denying the claim, was

not included in the state court record. Resp. Ex. K. Petitioner also moved to

produce the missing transcript, and the First DCA denied that request.

Higginbotham v. State, No. 1D19-0371 (Fla. 1st DCA). The First DCA then per

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

The Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications. In doing so, the

Court notes that a transcript of the March 2, 2016, pretrial hearing was neither

included in the state court record during the First DCA’s adjudication nor the

record before this Court. In any event, transcripts of the March 3, 2016, plea

colloquy and the May 4, 2016, sentencing hearing, which are part of both the

state court and this Court’s record, refute Petitioner’s argument that trial

counsel failed to advise her of a state offer.

During the March 3, 2016, plea hearing, the parties and the trial court

discussed the May 2, 2016, hearing; the state’s plea offer; and confirmed

Petitioner’s rejection of that offer:

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MR. KURITZ: Your Honor, I spoke with my client and

she still wishes to proceed with the plea that we had

yesterday. It was a plea straight up to the Court.

THE COURT: Very well. And what I’m going to do is

take the plea colloquy from the top to make sure that

the record is clear and that everything is as of today. I

will pass this plea of guilty and negotiated sentence

document to you. In other words, the plea colloquy was

started yesterday, but I’m going to start from the

beginning.

. . . .

THE COURT: And, for the record, this was addressed

yesterday, since I’m starting from now, this is a plea

and negotiated sentence in a very small way, meaning

the negotiated portion is that the State agreed to drop

Count 2 in Case 16-2015-CF-005286. Is that accurate?

MR. MANTEI: Yes, it is, Your Honor.

MR. KURITZ: Yes, Your Honor. And on the back, above

the signature line, we executed it yesterday, we’ve

actually redated and initialed it.

. . . .

THE COURT: So you were certainly able to read and

understand this plea of guilty and negotiated sentence

document front and back; is that correct?

THE DEFENDANT: Yes, ma’am.

THE COURT: In fact, I passed your case temporarily

yesterday to give you time to review the document; is

that accurate?

THE DEFENDANT: Yes, ma’am.

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THE COURT: Did you read everything in both -- on

both sides of this document?

THE DEFENDANT: Yes, ma’am, I did.

THE COURT: And is the entire document true and

correct?

THE DEFENDANT: Yes, ma’am.

THE COURT: Did Mr. Kuritz explain this document to

you completely?

THE DEFENDANT: Yes, ma’am.

THE COURT: And did he go over with you all possible

defenses that you may have?

THE DEFENDANT: Yes, ma’am.

. . . .

THE COURT: Are you fully satisfied with Mr. Kuritz’s

representation of you in both of these cases?

THE DEFENDANT: Yes, ma’am.

THE COURT: Has Mr. Kuritz done everything that you

have asked him to do in terms of defending your case,

including taking all depositions, talking to all

witnesses and providing you with copies of all

discovery, including tapes, videos, depositions and

statements?

THE DEFENDANT: Yes, ma’am.

THE COURT: Is there anything else that you would

like Mr. Kuritz to do before you proceed forward with

your plea of guilty?

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THE DEFENDANT: No, ma’am.

. . . .

THE COURT: I think we should address the guidelines

on the record. Would you place them on the record, Mr.

Mantei.

MR. MANTEI: Yes, Your Honor. I calculated the

criminal punishment code score sheet for this

defendant, including -- accounting for the count that’s

been nolle prossed, and the State’s calculation shows

that based upon the current charges, as well as the

defendant’s prior record, her minimum score, months

in prison would be 119.7; her maximum years of

exposure would be 200.

THE COURT: And is there a guideline score sheet that

could be shown to Mr. Kuritz and the defendant in this

case?

MR. MANTEI: I’ve previously provided one.

MR. KURITZ: It was provided yesterday, Your Honor.

Actually, I guess, madam clerk has a copy now.

THE COURT: Actually, I think she gave it to me. Just

for the record, I’d like to pass it to you and ask you if

you would show it to your client during this proceeding,

and just state on the record if you agree it’s been

calculated correctly.

And just for the record, I decided yesterday in the

middle of the plea colloquy to pass this case to today,

just to give a little bit more time for the defendant to

make a decision. There was a State offer that was open

as of yesterday. For the record, is there currently a

State offer?

MR. MANTEI: In view of the defendant’s plea, I guess

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that’s a moot issue.

THE COURT: Very well. So it would be fair to say there

is no State offer at this point?

MR. MANTEI: Not anymore, Your Honor.

MR. KURITZ: Your Honor, I’ve gone over that with my

client. She and I looked at it together. It is the same one

I was provided yesterday.

Resp. Ex. B at 85-115. Trial counsel then requested that a presentence

investigation report be prepared for sentencing. Id. at 115.

During the May 4, 2016, sentencing hearing, the state explained, “the

original offers that I made in this case started at 15 years and worked up from

there. And I don’t think anything less than 15 to 20 years is appropriate for this

defendant’s behavior.” Id. at 141. In response, trial counsel acknowledged the

prior offers and requested that the trial court impose a downward departure

sentence:

we chose to enter pleas straight to the Court because

it’s our thought that due to the nature of the defendant,

the 15 to 20 was too high. The guidelines sentence, you

know, the bottom is ten years, so not to exceed ten

years. But contemplate a downward departure that

would put her in the Phoenix House, and put her on

probation to begin repayment and to prevent her from

being employed in finances.

Id. at 146. The trial court denied trial counsel’s request and imposed a

cumulative eighteen-year term of incarceration. Id. at 151.

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This evidence shows that trial counsel discussed available state offers

with Petitioner, but Petitioner strategically decided to plea “straight to the

court” and request a downward departure sentence. As such, Petitioner cannot

demonstrate counsel was ineffective. See Stano v. Dugger, 921 F.2d 1125, 1152

(11th Cir. 1991) (recognizing that the record of the plea proceedings may

contradict any subsequent claim that counsel’s representation was deficient).

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

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

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

unreasonable determination of the facts given the evidence presented to the

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

Accordingly, it is

ORDERED AND ADJUDGED:

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

WITH PREJUDICE.

2. The Clerk shall enter judgment dismissing this case with

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

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

appealability. Because this Court has determined that a certificate of

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

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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.’

DONE AND ORDERED at Jacksonville, Florida, this 7th day of June,

2023.

□ Cirmotheg Corrig oN

W TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Karen Higginbotham, #J57021

Counsel of record

7 The Court should issue a certificate of appealability only if the Petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Petitioner “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

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

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

‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

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

appealability.

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