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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

KEVIN RANDALL HUNT,

Petitioner,

v. Case No. 8:20-cv-1530-WFJ-TGW

SECRETARY, DEPTARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

Before the Court is Kevin Randall Hunt’s (“Petitioner”) Petition for Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). Secretary, Florida Department

of Corrections (“Respondent”) has responded in opposition (Dkt. 12), and Petitioner

has replied (Dkt. 15). Upon careful consideration, the Court finds an evidentiary

hearing unnecessary and denies Petitioner any relief.

BACKGROUND

On May 20, 2016, Petitioner pled no contest to various state misdemeanor and

felony theft crimes charged against him in Polk County, Florida case numbers 15-

CF-2837 and 15-CF-3600. Dkt. 12-2 at 18. In exchange, he received five years’

probation. Id. at 47. Petitioner was nevertheless arrested later the same day, id. at 98,

and subsequently charged with sixteen new counts in case number 16-CF-4077. Id.

at 64. The Florida Department of Corrections filed an affidavit of violation of

probation in relation to 15-CF-2837 and 15-CF-3600 shortly thereafter. Id. at 72.

On August 4, 2016, Petitioner, through counsel Richard B. Parker, filed a

motion to suppress evidence from his May 20, 2016, arrest. Id. at 74. Petitioner

argued that the evidence was obtained pursuant to an illegal seizure because he was

arrested based on the mere suspicion that his driver’s license was suspended. Id. at

75. After a suppression hearing involving the testimony of Deputy Benjamin Brown

(the arresting officer), Petitioner, Petitioner’s son, and Petitioner’s sister-in-law, the

state court denied Petitioner’s motion. Id. at 80, 132.

On April 10, 2017, while presumably still in custody, Petitioner was charged

with two additional counts in case number 17-CF-2610. Id. at 142. Most of these

various charges (in all four of Petitioner’s cases) were petit and grand theft charges,

as well as counterfeiting and one count of obstruction. There was also one felony

methamphetamine sales count and one firearms count. Prior to this group of crimes,

Petitioner had six similar convictions.1

On March 5, 2018, Petitioner, now represented by counsel Cynthia Lakeman,

admitted to violating conditions of his probation (as to 15-CF-2837 and 15-CF-3600)

and entered into a plea agreement concerning his other two cases (16-CF-4077 and

1 See Florida Department of Corrections, Corrections Offender Network,

https://fdc.myflorida.com/offenderSearch/detail.aspx?Page=Detail&DCNumber=H09787&Type

Search=AI (last visited July 24, 2023).

17-CF-2610). Id. at 147, 168–172. Petitioner received a total of ten years’

imprisonment. Id. at 181–234. On April 3, 2018, Petitioner filed a motion to

withdraw his plea on the basis of ineffective assistance of counsel, id. at 238, but the

state court denied it, stating that Petitioner “is not required to first withdraw from his

plea to seek postconviction relief.” Id. at 241.

On August 3, 2018, Petitioner filed a motion for postconviction relief pursuant

to Florida Rule of Criminal Procedure 3.850. Id. at 243. Petitioner raised three

grounds: (I) Mr. Parker provided ineffective assistance of counsel by failing to

adequately advise Petitioner regarding a favorable plea bargain; (II) Mr. Parker

provided ineffective assistance of counsel by failing to properly impeach Deputy

Brown during the August 4, 2016, suppression hearing; and (III) Petitioner’s March

5, 2018, plea “was involuntary because it was the result of psychological

intimidation, duress, fear[,] and coercion inflicted upon [Petitioner] by [Ms.

Lakeman].” Id. at 244–55. On August 24, 2018, the state postconviction court denied

Grounds I and II, and dismissed Ground III without prejudice. Id. at 284–86.

Petitioner subsequently submitted an amended version of Ground III—now asserting

that Mr. Parker had provided ineffective assistance of counsel by failing to

investigate and prepare a defense to the charges against Petitioner—but the

postconviction court denied any relief. Id. at 288, 296. The state appellate court per

curiam affirmed on August 2, 2019. Id. at 330.

On July 1, 2020, Petitioner timely filed the instant Petition for Writ of Habeas

Corpus. Dkt. 1. Petitioner asserts four grounds for relief: (I) Mr. Parker provided

ineffective assistance of counsel by misadvising Petitioner concerning a favorable

plea deal; (II) Mr. Parker provided ineffective assistance of counsel by failing to

properly impeach Deputy Brown during the August 4, 2016, suppression hearing;

(III) Mr. Parker provided ineffective assistance of counsel by failing to investigate,

depose, and call two material witnesses during the August 4, 2016, suppression

hearing; and (IV) Ms. Lakeman provided ineffective assistance of counsel for

representing Petitioner at the March 5, 2018, hearing “after withdrawing as counsel

and failing to request a Nelson2 hearing before resuming her representation of

[Petitioner].” Id. at 10–24. Petitioner requests an evidentiary hearing on these

matters. Respondent maintains that Petitioner is entitled to no relief. Dkt. 12.

LEGAL STANDARDS

This petition is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1210 (11th

Cir. 1998). The AEDPA “establishes a highly deferential standard for reviewing

state court judgments.” Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 768 (11th

Cir. 2003). This type of review does not allow relief of a state court conviction on a

claim “that was adjudicated on the merits in the State court proceedings” unless the

2 See Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

state court’s decision was “(1) . . . contrary to, or involved an unreasonable

application of, clearly established Federal law as determined by the Supreme Court

of the United States; or (2) . . . based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” Nejad v. Att’y Gen.,

State of Ga., 830 F.3d 1280, 1288 (11th Cir. 2016) (quoting 28 U.S.C. § 2254(d)).

“Clearly established Federal law” means holdings of the U.S. Supreme Court

“as of the time of the relevant state-court decision.” Id. at 1288–89. “Contrary to”

requires a state court conclusion “opposite to that reached by [the Supreme] Court

on a question of law or if the state court decides a case differently than [the Supreme

Court] has on a set of materially indistinguishable facts.” Id. at 1289 (citations

omitted) (alterations in original). The “unreasonable application” clause applies only

“if the state court identifies the correct governing legal principle from [the Supreme]

Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Id. (citation omitted) (alterations in original).

A state court’s factual determination “is not unreasonable merely because the

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

instance.” Id. (citation omitted). Indeed, “even if reasonable minds reviewing the

record might disagree about the [fact] finding in question, on habeas review that does

not suffice to supersede the [state] trial court’s determination.” Wood v. Allen, 558

U.S. 290, 301 (2010) (internal quotation omitted). Further, this standard applies even

if the state court does not provide the reasoning behind its decision because “the

summary nature of a state court’s decision does not lessen the deference that it is

due.” Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002). Only

if this Court determines that the state court’s adjudication of Petitioner’s claim was

unreasonable under § 2254(d) must a de novo review of the record be

undertaken. See McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1266 (11th Cir.

2009).

DISCUSSION

Counsel is ineffective under the Sixth Amendment if “(1) counsel’s

performance was deficient; and (2) the deficient performance prejudiced the defense

such that petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d 1344, 1354

(11th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A

petitioner claiming ineffective assistance of counsel carries the burden of

establishing both prongs. Strickland, 466 U.S. at 687.

To establish deficient assistance under Strickland, a petitioner must

demonstrate that counsel’s performance “fell below an objective standard of

reasonableness.” Id. at 688. The test is not “what the best lawyers” or “what most

good lawyers would have done.” White v. Singletary, 972 F.2d 1218, 1220 (11th Cir.

1992). Rather, the question is “whether some reasonable lawyer at the trial could

have acted, in the circumstances, as defense counsel acted at trial.” Id.

To establish resulting prejudice under Strickland, a petitioner “must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 466 U.S. at 694. “A reasonable

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

If the petitioner fails to establish either of the Strickland prongs, his claim fails. See

Maharaj v. Sec’y, Dep’t of Corr., 432 F.3d 1292, 1319 (11th Cir. 2005).

Notwithstanding the highly deferential standard posed by Strickland,

“[e]stablishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult.” Harrington v. Richter, 562 U.S. 86, 105

(2011). In the habeas context, “[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) (citation and internal 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.” Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th

Cir. 2014) (citation omitted).

“[I]t 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 . . . [I]t is rarer still for merit to be found in a claim that challenges a

strategic decision of counsel.” Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d

1298, 1303 (11th Cir. 2019) (internal citations omitted). A strategic decision by

counsel is only subject to federal habeas review when it was so “patently

unreasonable that no competent attorney would have chosen it.” Adams v.

Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983). “If this standard is difficult to

meet, that is because it was meant to be.” Harrington, 562 U.S. at 102.

I. Ground I

In Ground I, Petitioner argues that Mr. Parker provided ineffective assistance

of counsel by misadvising Petitioner during the pre-trial period, resulting in “a lost

favorable plea deal of 1–3 years in prison.” Dkt. 1 at 10. This argument was raised

in Petitioner’s motion for postconviction relief, Dkt. 12-2 at 244, and summarily

denied by the state postconviction court. Id. at 284–85. The state appellate court per

curiam affirmed. Id. at 330.

In ruling on Ground I, the postconviction court found the following:

[Petitioner] alleges that attorney Richard Parker conveyed to him that

he could obtain an offer of one to three years. Through this claim it is

clear that Defendant was aware there was not a firm offer extended by

the State. Nonetheless, Defendant then alleges Mr. Parker provided him

with two options: 1) accept the 1–3 year offer; or 2) proceed with a

motion to suppress, for which Mr. Parker allegedly told the Defendant

there were “excellent grounds” upon which such a motion could be

granted. The Defendant chose the later option, and after the motion to

suppress was denied, was no longer able to bargain for a plea of 1–3

years.

[Petitioner’s] claim suffers from several issues. First, [Petitioner]

acknowledges the 1–3 year offer was never a firm offer, but was rather

discussions with his attorney regarding possible plea negotiations.

Next, [Petitioner] also alleges he understood there were two options

available to him, for which he chose to proceed with the motion to

suppress. This makes it quite clear by opt[ing] to proceed with the

motion to suppress, [Petitioner] would not be able to later obtain an

offer of 1–3 years. Finally, [Petitioner] never even alleges at the time

[Petitioner] discussed the plea negotiations with Mr. Parker, Mr. Parker

could have been aware that the motion to suppress would not prevail.

For these reasons, [Ground I] is DENIED.

Id. at 284–85.

This was not an unreasonable application of Strickland. As noted above, a

strategic decision by counsel is subject to federal habeas review only when it was so

“patently unreasonable that no competent attorney would have chosen

it.” Wainwright, 709 F.2d at 1445. In the AEDPA context, moreover, “[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[.]” Mirzayance, 556 U.S. at 123 (citation and internal quotation marks

omitted). Here, the postconviction court reasonably found Petitioner’s challenge to

the strategic decision-making of Mr. Parker (as it related to his assessment of

Petitioner’s legal options) to be factually and legally meritless. Petitioner essentially

asserts that he received ineffective counsel because Mr. Parker (1) failed to clarify

that the two options presented were mutually exclusive and (2) erroneously advised

that filing a motion to suppress would be more advantageous than pursuing a plea

deal. The factual problems with this claim, as noted by the postconviction court, are

that Petitioner himself makes clear that Mr. Parker presented the aforementioned

options in the context of an ‘either or’ proposition and never stated that a firm plea

deal was extended by the State.3 The legal issue is that Petitioner himself

demonstrates the existence of a reasonable argument that could support a motion for

suppression.4 Given this, the postconviction court’s ruling was neither contrary to

the record, nor a misapplication of federal law.

The Court also notes that Petitioner’s arguments concerning the

unreasonableness of Mr. Parker’s strategy in Ground I are contradicted by

Petitioner’s assertions in Grounds II and III. There, Petitioner maintains that Mr.

Parker was ineffective because he failed to properly impeach Deputy Brown and call

certain witnesses at the suppression hearing. Dkt. 1 at 15, 18. Petitioner contends

that, had Mr. Parker simply done either of these two things, he would have prevailed

on his suppression motion. Id. at 16, 21. In effect, Petitioner concedes, where

favorable to him, that Mr. Parker’s suppression motion strategy was reasonable. And

3 See Dkt. 12-2 at 244 (Petitioner stating that “[e]arly in the case and prior to the filing of a motion

to suppress, defense counsel, Richard B. Parker . . . visited [Petitioner] in the jail and told him that

there were two options”); see id. at 245 (Petitioner acknowledging that he knew “the plea

agreement was not in writing” but stating that Mr. Parker nevertheless “conveyed to him that the

offer was in fact 1–3 years”).

4 See Dkt. 12-2 at 247 (Petitioner stating that “[t]he sum of Parker’s theory [for suppression] was

that Deputy Brown lacked probable cause to seize and arrest [Petitioner] because he only found

out that [Petitioner’s] license was suspended after the encounter . . . . Parker was proceeding under

the ‘stale knowledge’ theory”).

this means that “some reasonable lawyer . . . could have acted, in the circumstances,

as [Mr. Parker] acted[.]” White, 972 F.2d at 1220. Petitioner is entitled to no relief

on Ground I.

II. Ground II

Ground II argues that Mr. Parker provided ineffective assistance of counsel

by failing to properly impeach Deputy Brown at the suppression hearing, resulting

in the denial of Petitioner’s motion to suppress. Dkt. 1 at 15–17. Petitioner raised

this claim in his motion for postconviction relief, Dkt. 12-2 at 248, but it was

summarily denied by the state postconviction court. Id. at 285. The state appellate

court per curiam affirmed. Id. at 330.

In considering this claim, the postconviction court found the following:

[Petitioner’s] second claim alleges trial counsel Richard Parker was

ineffective for failing to impeach Deputy Benjamin Brown during the

suppression hearing. [Petitioner] claims trial counsel should have

introduced DAVID access records to show Deputy Brown did not

access [Petitioner’s] information between April of 2016, and May of

2016. [Petitioner] then acknowledges this is how the Deputy testified

during the suppression hearing. As such, these records would not have

impeached Deputy Brown’s testimony. [Ground II] is DENIED.

Id. at 285.

This ruling was neither contrary to the record, nor a misapplication of

Strickland. To begin with, as the postconviction court clearly explained, the DAVID

records Petitioner alludes to would not have impeached the testimony Deputy Brown

gave during the suppression hearing. During cross-examination, Deputy Brown

agreed with Mr. Parker that, between April 6, 2016, and May 20, 2016, he did not

run Petitioner’s “name through the DAVID database to determine if his license had

been reinstated[.]” Dkt. 12-2 at 100–01. This is precisely what Petitioner claims the

DAVID records would have demonstrated. Mr. Parker’s failure to introduce said

records was therefore inconsequential.

Mr. Parker’s failure to introduce the deposition testimony of Deputy Brown,

which Petitioner now complains of, was similarly inconsequential. Petitioner alleges

that during his initial deposition, Deputy Brown “swore that he ran [Petitioner’s]

license through the DAVID database more than once since the first contact with

Petitioner back on April 6, 2016.” Dkt. 1 at 15–16. Petitioner argues that, had Mr.

Parker exposed this inconsistency (and thereby impeached Deputy Brown), it would

have “undermined [Deputy] Brown’s credibility with the judge sufficient enough to

make the judge grant the motion to suppress.” This is not the case. While the

supposedly inconsistent testimony might have impacted the state court’s overall

credibility determination, it would not have altered the court’s ultimate ruling. The

state court ruled that Deputy Brown had reasonable suspicion to stop Petitioner

despite the fact that “Deputy Brown had not checked the status on [Petitioner’s]

license” for forty-four days because (1) “[there] is clearly no bright line rule

establishing when information from prior contact of a suspended license becomes

stale”, and (2) prior case-law suggested that, “upon the totality of the circumstances

in [Petitioner’s] case[,]” Deputy Brown’s knowledge was not stale. Dkt. 12-2 at 132–

34. Inconsistent testimony could not have altered this finding where all the parties

agreed that the forty-four day timeframe was established by DAVID records.

Petitioner has therefore failed to establish “a reasonable probability that, but for [Mr.

Parker’s actions], the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. Petitioner is entitled to no relief on Ground II. See

Maharaj, 432 F.3d at 1319 (finding that an ineffective assistance of counsel claim

fails where the petitioner fails to establish either of the Strickland prongs).

III. Ground III

In Ground III, Petitioner argues that Mr. Parker provided ineffective

assistance of counsel by “failing to investigate, depose[,] and call two available [and]

material eyewitnesses” during the suppression hearing. Dkt. 1 at 18. This argument

was raised in Petitioner’s amended motion for postconviction relief, Dkt. 12-2 at

288, and summarily denied by the state postconviction court. Id. at 296. The state

appellate court per curiam affirmed. Id. at 330.

In ruling on Ground III, the postconviction court found the following:

[Petitioner] now claims trial counsel failed to call two witnesses, Hope

Gatlin (his ex-girlfriend), and Robert Ebi (his ex-girlfriend’s current

boyfriend). [Petitioner’s] motion properly cites to Nelson v. State, 875

So. 2d 579 (Fla. 2004), for what a facially sufficient claim alleging

ineffective assistance of counsel for failing to call a witness must allege

to show prejudice. Despite this, the claim never asserts these witnesses

were actually available to testify at the hearing on the motion to

suppress. Nonetheless, the Defendant’s claim still fails.

[Petitioner] alleges these witnesses would have testified that they

observed [him] from a distance, standing in the parking lot without his

helmet on. [Petitioner’s] motorcycle was not running. They also would

have testified that the firearm thrown by [Petitioner] into the truck, was

actually in the truck the entire time. They also would have stated they

observed [Petitioner] speak with Deputy Brown, and after responding

with a few words [Petitioner] turned to walk away. They then saw

Deputy Brown try to grab [Petitioner’s] arm, and threw him to the

ground.

While this purported testimony does in fact contradict some of what

was given by Deputy Brown, it clearly would not have made a

difference to the Court’s ruling on the Motion to Suppress.

[Petitioner’s] motion appears to allege this additional testimony, along

with his testimony, his son’s, and that of his sister-in-law, would have

been sufficient for the Court to find their testimony more credible than

that of Deputy Brown’s. However, the Court noted in the Order

Denying Defendant’s Motion to Suppress that the testimony of his son

and sister-in-law added nothing, as they acknowledged they arrived on

scene after [Petitioner] had already been arrested. The testimony of

these new purported witnesses would appear to be cumulative with one

another, and like all of the defense witnesses, are not disinterested

parties. More importantly, the purported testimony of these new

witnesses would have contradicted [Petitioner’s] own testimony.

[Petitioner’s] testimony at the hearing on the motion to suppress is that

these witnesses arrived as Deputy Brown was speaking with [him],

while [Petitioner] alleges these witnesses would have provided

testimony regarding several observations made prior to Deputy

Brown’s arrival.

Dispositive of this claim however, is that [Petitioner] alleges these

witnesses would have shown [Petitioner] was merely walking away

from a consensual encounter, and not a stop founded on reasonable

suspicion. These witnesses who would have admitted they were not

present with [Petitioner] at the time Deputy Brown first made contact

with [Petitioner], would have no basis to provide testimony reaching

such a legal conclusion – just as the testimony of [Petitioner’s] son and

sister-in-law was not relevant to this inquiry. As this purported

testimony would not affect the Court’s conclusion that Deputy Brown

had reasonable suspicion for the stop, the claim is DENIED.

Id. at 298–99 (cleaned up) (citations omitted).

The Court cannot deem this unreasonable; as the postconviction court

explained, there is little to no chance that the introduction of testimony from Ms.

Gatlin and Mr. Ebi would have changed the outcome of Petitioner’s suppression

hearing. Even on Petitioner’s narrative, Ms. Gatlin and Mr. Ebi arrived after Deputy

Brown made initial contact with Petitioner. See id. at 117 (Petitioner testifying that

“[Deputy Brown] pulled up in front of me, he gets out, he walks up to me. He says,

what are you doing here? I said, and about that time my ex-girlfriend and her

boyfriend pulled into the bar”). Ms. Gatlin and Mr. Edi would therefore have no

factual basis upon which to claim that Petitioner was merely involved in a

consensual encounter with Deputy Brown when they arrived. It follows that their

testimony could not have credibly refuted that of Deputy Brown’s. This is not to

mention, moreover, that both Ms. Gatlin and Mr. Edi are interested parties who never

actually testified—what they would or would not have said is wholly speculative.

This being the case, Petitioner cannot demonstrate prejudice as to Ground III. He is

entitled to no relief.5

5 Petitioner appears to suggest that he was nevertheless prejudiced because the testimony of Ms.

Gatlin and Mr. Ebi “was material as to whether or not [he] was armed during” his arrest and

whether “he was [or was] not riding a motorcycle when Deputy Brown” arrived. Dkt. 1 at 20. As

an initial matter, whether the gun recovered during Petitioner’s arrest was actually Petitioner’s

would have been an issue for trial. It would not have been resolved in any sense of the word on a

IV. Ground IV

Finally, in Ground IV, Petitioner argues that Ms. Lakeman was ineffective for

representing him at the March 5, 2018, plea hearing after withdrawing as counsel

and then failing to request a Nelson hearing prior to resuming her representation.

Dkt. 1 at 22. A somewhat similar claim was made in Petitioner’s original motion for

postconviction relief, Dkt. 12-2 at 253, and the postconviction court dismissed it

without prejudice as facially insufficient. Id. at 285.6 Petitioner failed to raise the

claim again in his amended motion for postconviction relief. Respondent maintains

that this failure amounts to a procedural default of Ground IV.

motion to suppress unless the motion was granted. And, for the reasons explained above, the

motion would not have been granted regardless of whether Ms. Gatlin and Mr. Ebi provided

testimony about what they witnessed after arriving—this includes hypothetical testimony about

the gun not being Petitioner’s. Second, for the same reasons that Ms. Gatlin and Mr. Edi could not

credibly speak to the nature of Deputy Brown’s stop, they could not speak to whether Deputy

Brown witnessed Petitioner on his motorcycle. They arrived after him. Petitioner suffered no

prejudice in relation to Mr. Parker’s decision not to present Ms. Gatlin and Mr. Ebi’s testimony.

6 In dismissing this claim, the postconviction court found the following:

[Petitioner’s] final claim alleges his plea was involuntarily entered as a result of

psychological intimidation, duress, fear, pressure, and coercion, all inflicted upon

him by his counsel. As to this claim, [Petitioner] cites to his dissatisfaction with

trial counsel for failing to investigate and prepare for trial, matters which he raised

before the Court on the date of sentencing. These allegations are vague and

conclusory. [Petitioner] has failed to state how trial counsel failed to investigate.

Other than this vague allegation [Petitioner] has not pled any other forms of

intimidation, duress, fear, pressure, or coercion. As the claim is facially insufficient,

[Petitioner] shall be provided with an opportunity to re-file a facially sufficient

amended claim[.]

Dkt. 12-2 at 285.

The Court agrees with Respondent. Before a federal court can grant habeas

relief, a petitioner must exhaust every available state court remedy for challenging

his conviction, either on direct appeal or in a state post-conviction motion. 28 U.S.C.

§ 2254(b)(1)(A), (C). This is because a “state prisoner must give the state courts an

opportunity to act on his claims before he presents those claims to a federal court in

a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also

Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) (“A state prisoner

seeking federal habeas relief cannot raise a federal constitutional claim in federal

court unless he first properly raised the issue in the state courts.”) (citations omitted).

To exhaust a claim, a petitioner merely must present the state court with both the

particular legal basis for relief and the facts supporting the claim. See Snowden v.

Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (“Exhaustion of state remedies

requires that the state prisoner ‘fairly presen[t] federal claims to the state courts in

order to give the State the opportunity to pass upon and correct alleged violations of

its prisoners’ federal rights.’”).

Here, Petitioner failed to exhaust Ground IV by neglecting to raise it in his

amended motion for postconviction relief. After the state postconviction court

dismissed Petitioner’s averments against Ms. Lakeman without prejudice and

granted Petitioner leave to amend, Petitioner never raised a claim against Ms.

Lakeman again. He instead brought an additional claim against Mr. Parker. Dkt. 12-

2 at 288. This effectively deprived the postconviction court of any opportunity to

consider the facts underlying Petitioner’s current claim against Ms. Lakeman.

Petitioner’s claim is therefore defaulted; as, Petitioner can no longer bring Ground

IV before the postconviction court.

Petitioner, anticipating this issue, argues that he is entitled to review under

Martinez v. Ryan, 566 U.S. 1, 12 (2012). Martinez holds that, “when a State requires

a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral

proceeding, a prisoner may establish cause for a default of an ineffective-assistance

claim in two circumstances.” 556 U.S. 1 at 14. The first circumstance (and the only

one applicable here) “is where the state courts did not appoint counsel in the initial-

review collateral proceeding for a claim of ineffective assistance at trial.” Id. A

prisoner seeking to overcome a procedural default on Martinez grounds, however,

“must also demonstrate that the underlying ineffective-assistance-of-trial-counsel

claim is a substantial one, which is to say that the prisoner must demonstrate that the

claim has some merit.” Id.

Petitioner cannot demonstrate that Ground IV has any merit. Contrary to

Petitioner’s factual assertions, Ms. Lakeman never withdrew as his trial counsel. The

March 5, 2018, plea hearing began with Ms. Lakeman7 and the State approaching

7 According to Petitioner, Ms. Lakeman was appointed to represent Petitioner after Petitioner

fired Mr. Parker (Petitioner’s first appointed counsel) and Guillermo Gomez (private counsel)

withdrew. Dkt. 12-2 at 245.

the court to discuss a plea deal offer. Dkt. 12-2 at 148. Ms. Lakeman expressed that

Petitioner would be willing to accept the State’s offer to resolve all of his cases if

the court was willing to give him the bottom of the guidelines—approximately five

years. Id. The State remained steadfast in its ten year position. Id. at 149. Ultimately,

the court made no promises and expressed that, if the plea was accepted, Petitioner

would be subjecting himself to something between the bottom of the guidelines and

the ten years offered by the State. Id. at 152. The hearing was then paused to allow

Ms. Lakeman to speak with Petitioner.

When Petitioner’s case was recalled, Ms. Lakeman indicated that Petitioner

expressed his desire to hire other counsel. Id. at 152. Petitioner stated the following:

Your Honor, if I may, I would like to place certain facts on the record.

At this time, I have been appointed Cynthia Lakeman to represent me

in my VOP and criminal matters. Since, August 4th, 2017, when I

received my first and only letter from Ms. Lakeman, stating she was

appointed to represent me, I had several court appearances to which she

was able to attend one. The other court dates were continued without

Ms. Lakeman being present. During my one and only attorney visit, I

presented Ms. Lakeman some issues to investigate in defense of my

prosecution against me. And I have yet to hear back from her. Today, I

am here with Ms. Lakeman, we still haven’t spoken about and or

discussed any research or investigative avenues of defense today. To

my understanding, I am here for a probation evidentiary hearing. I

believe I am entitled to an effective counsel as guaranteed by the U.S.

Constitution. To proceed in this hearing, where adverse results could

be prison time, would be a miscarriage of justice. And I plead the

assistant of the court, to remedy the situation.

Id. at 154–55 (cleaned up).

This came as a surprise to Ms. Lakeman. Indeed, after the court expressed its

intention to conduct a Nelson hearing and stated that Petitioner is “obviously trying

to discharge you as . . . court appointed attorney[,]” Ms. Lakeman admitted that “all

of this is news to me.” Id. at 157. Ms. Lakeman went on to state that, “at this point[,]

I have concerns because [Petitioner] is raising allegations against me that I do not

agree with and I don’t know how far you want me to go before — I — I don’t know

that there is not a conflict now because of what he said.” Id. The court subsequently

decided to continue the hearing in order to give Petitioner a chance to hire private

counsel. Id. at 158.

It was at this point that the State put on the record it was “not making any

future offers and revoking all offers at this point in this case.” Id. “Before [going]

down that road,” the court asked, “what is [Petitioner’s] maximum exposure for all

of this?” Id. at 159. The court then explained that,

if everything [is run] consecutively [and] you’re found guilty of

everything, the maximum consecutive is 115 years, concurrent 30

years, all right. Now, the State is saying, and I don’t control — The

Court doesn’t control what offers the State makes. The State is saying,

if we leave here today, it’s not making anymore offers. Everything is

off the table and what they are saying is, and again I don’t control what

the States says is, if it — they are not going to put anything back on the

table, okay. You understand that? That’s a yes or a no. If you don’t

understand it, say you don’t. If you do understand it, say yes.

Id. at 160 (cleaned up). The court subsequently paused Petitioner’s hearing once

more to allow Petitioner to consider things.

After the break, Petitioner was still uncertain about accepting or rejecting the

State’s offer. Petitioner then requested another moment “to talk to my attorney.” Id.

at 165. Petitioner ultimately accepted the plea deal after speaking with Ms. Lakeman.

The court then questioned Petitioner about his prior complaints concerning

Ms. Lakeman:

STATE: Uh — I guess for purposes of the Nelson hearing I — you’re

finding that Ms. Lakeman is competent as provided as —

THE COURT: Well, I am taking this that he’s — he’s abandoning that

at this point.

STATE: Okay.

MS. LAKEMAN: Mr. Hunt, can you address that with the Judge,

please?

PETITIONER: What am I doing now?

THE COURT: You — you — you said that you wanted a new lawyer,

basically, in your letter.

PETITIONER: Right.

THE COURT: Now, if — if we go forward the plea that carries with it,

my understanding and everyone’s understanding, that you’re coming

off that. You’re willing to go forward with, Ms. Lakeman, in connection

with the plea.

PETITIONER: Absolutely.

Id. at 166–67 (cleaned up).

After orally working through the plea deal, the court questioned Petitioner

further:

THE COURT: And, you’re doing all of this — we’ve had a lot of

conversation today and you’ve approached, The Court, with a lot of —

PETITIONER: Willfully doing this, Your Honor.

THE COURT: — different issues and everything. But you’re entering

this plea freely and voluntarily, correct?

PETITIONER: Absolutely. Yes, Sir.

THE COURT: You’ve had a chance to talk to your lawyer?

PETITIONER: Yes, Sir.

THE COURT: And, you’re satisfied with the services of your lawyer

and connection with entering — with this case and entering the plea?

PETITIONER: Yes, Sir.

Id. at 171–72 (cleaned up).

Given this, Petitioner cannot now claim that Ms. Lakeman was ineffective for

continuing to represent him “after withdrawing as counsel.” Ms. Lakeman never

withdrew, and Petitioner ultimately expressed her satisfaction with her services. Ms.

Lakeman, moreover, never stopped acting as Petitioner’s advocate throughout the

hearing—she even expressly referred to herself as “his advocate” after Petitioner

complained about her services. Id. at 162.

Ground IV is procedurally defaulted. The Court cannot review it where

Petitioner’s underlying claim is meritless.

V. Evidentiary Hearing and Certificate of Appealability

In light of the foregoing analysis, an evidentiary hearing in this matter is

unnecessary. “A petitioner is entitled to an evidentiary hearing if he alleges facts

that, if true, would entitle him to relief.” Winthrop-Redin v. United States, 767 F.3d

1210, 1216 (11th Cir. 2014) (internal quotations and citations omitted).

Notwithstanding, “a district court is not required to hold an evidentiary hearing

where the petitioner’s allegations are affirmatively contradicted by the record, or the

claims are patently frivolous[.]” Aron v. United States, 291 F.3d 708, 715 (11th Cir.

2002) (citation omitted). Here, Petitioner’s claims are meritless or contradicted by

the record. As a result, summary dismissal is appropriate. See Broadwater v. United

States, 292 F.3d 1302, 1303 (11th Cir. 2002) (finding that “a district court faced with

a § 2255 motion may make an order for its summary dismissal [i]f it plainly appears

from the face of the motion and any annexed exhibits and the prior proceedings in

the case that the movant is not entitled to relief”).

Petitioner is similarly not entitled to a certificate of appealability (“COA”).

“The district court must issue or deny a certificate of appealability when it enters a

final order adverse to the applicant[,]” and if a certificate is issued, “the court must

state the specific issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Proceedings for the United

States District Courts; see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To merit

a COA, Petitioner must show that reasonable jurists would find debatable both the

merits of the underlying claims and the procedural issues he seeks to raise. See 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Eagle, 279 F.3d

at 935. Because he fails to show that reasonable jurists would debate either the merits

of the claims or the procedural issues, Petitioner is not entitled to either a COA or

leave to appeal in forma pauperis.

Accordingly, a certificate of appealability is denied. Leave to appeal in forma

pauperis is denied. Petitioner must obtain permission from the circuit court to appeal

in forma pauperis.

CONCLUSION

Accordingly, it is hereby ORDERED and ADJUDGED:

(1) Petitioner’s Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED.

(2) A certificate of appealability and leave to appeal in forma pauperis is

DENIED.

(3) The Clerk is directed to enter judgment in favor of Respondent and close

this case.

DONE AND ORDERED at Tampa, Florida, on July 24, 2023.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record

Petitioner, pro se