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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JUMAR HENRY,

Petitioner,

v. Case No. 3:20-cv-493-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Jumar Henry, an inmate of the Florida penal system, initiated

this action by filing a pro se Petition for Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2254. See Doc. 1. Petitioner challenges a state court (Duval County,

Florida) negotiated plea of guilty and resulting judgment of conviction for

second degree murder. Petitioner is serving a thirty-five-year term of

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

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

as “Resp. Ex.”

See Doc. 11. 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 unnecessary. 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

The procedural history of Petitioner’s state court case is set out in the

trial court’s order denying Petitioner’s Florida Rule of Criminal Procedure 3.850

motion for postconviction relief:

The Defendant was arrested on April 25, 2010

and charged with one count of Murder for the death and

decapitation of his mother. On May 20, 2010, an

Indictment charging the Defendant with First-Degree

Murder was returned by the Grand Jury. Based on this

offense, the Defendant was facing a mandatory

sentence of Life in prison, until the State filed its Notice

of Intent to Seek the Death Penalty on May 27, 2010.

On June 1, 2010, the Defendant entered a plea of not

guilty to the Indictment.

Shortly thereafter, Defendant’s counsel retained

a psychologist, Dr. Harry Krop, who examined

Defendant and determined that Defendant was

incompetent to proceed. A second psychologist, Dr.

William Meadows, was appointed by the trial court to

examine the Defendant. Defense counsel requested

permission to attend the psychological examination

with a videographer, for determination of “Defendant’s

competency in his present medical condition and

whether Defendant was competent at the time the

murder was committed.” After a hearing on the

Defendant’s competency, and relying on the reports of

both experts, on September 17, 2010, the trial court

adjudged the Defendant Incompetent to Proceed and

committed him to a treatment facility of the

Department of Health and Rehabilitative Services.

Every six months thereafter, the trial court

reviewed the regular evaluation reports and status of

Defendant’s competency, and relying on the experts’

findings and the stipulation of the parties to the

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experts’ reports, found that the Defendant continued to

meet the criteria for involuntary hospitalization, and

entered written Orders dated March 2, 2011,

September 2, 2011, and February 3, 2012, continuing

same. In August 2012, Defendant was examined by

another psychologist and underwent

neuropsychological testing by a neuropsychologist, who

later reported to the Court via letter dated August 31,

2012, that the Defendant was competent to proceed. As

such, a hearing on Defendant’s competency was

scheduled for November 20, 2012. However, the

hearing was rescheduled by the Court. Ultimately,

defense counsel waived live testimony by the expert at

a hearing on the restoration of competency, and the

trial court entered an order, relying upon the experts’

findings and the stipulation of the parties to the

admission of the expert’s report, that the Defendant

was competent to proceed.

Subsequently, the State and Defense entered an

agreement whereby the State withdrew its Notice of

Intent to Seek the Death Penalty, and the Defendant

waived his right to a twelve-person jury for trial in his

case. On the morning of jury selection, August 7, 2014,

the Defendant entered a plea of guilty to a negotiated

sentence with the State to the lesser-included offense

of Second Degree Murder. As contemplated, the

Defendant was adjudicated guilty and sentenced to 35

years in prison, with credit for 1556 days served, to run

concurrent with Defendant’s other cases: 2010-CF-4481

and 2010-CF-7140. The mandatory court costs and

surcharges were also imposed.

On August 20, 2014, the Defendant, pro se,

timely filed a Motion to Withdraw Plea, claiming that

he was coerced by his counsel to enter his plea, and that

the trial court did not establish a proper factual basis

or conduct a proper plea colloquy. The court denied the

Motion via Order entered on September 22, 2014,

finding that the record conclusively refuted the

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allegations. The Defendant sought a direct appeal of

both his judgment and sentence, and the denial of his

Motion to Withdraw Plea. The First District Court of

Appeal per curiam affirmed via Mandate issued on

August 18, 2015.

Resp. Ex. E at 189-91(record citations omitted). Petitioner then filed a Rule

3.850 motion, which the trial court summarily denied. Id. at 1-20, 189-99. The

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

opinion. Id. at 308. The Petition followed.

IV. The Petition

Petitioner raises four Grounds for relief in the Petition. See generally Doc.

1. Each claim, however, is barebones and vague on whether Petitioner intends

to assert a claim of trial court error or ineffective assistance of counsel.

Petitioner alleges that he exhausted the allegations in all four Grounds by

raising the claims in his Rule 3.850 motion. Id. After a liberal reading of the

Petition, Respondents construe Grounds One, Two, and Three as claims of

ineffective assistance of counsel, and Ground Four as a claim of trial court error.

Resp. at 17-32. In his Reply, however, Petitioner objects to Respondents’

decision to construe his claims in that way, but he does not clarify how

Respondents, or the Court, should otherwise address the Grounds. See

generally Doc. 11. In any event, all allegations seem to be premised on the

notion that Petitioner’s guilty plea was involuntary because either the trial

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court or his trial attorney failed to ensure Petitioner underwent an adequate

competency hearing before his plea. To that end, the Court attempts to decipher

Petitioner’s claims and addresses the issues in turn.

A. Ground One, Ground Two, Ground Three

In Ground One, Petitioner argues that his guilty plea was involuntary

because the trial court failed to ensure that he was afforded an adequate

competency hearing before the plea. Doc. 1 at 5. In Ground Two, Petitioner

asserts that his trial counsel was ineffective for waiving Petitioner’s right to a

competency hearing, misadvising him that a competency hearing was not in his

best interest, and coercing him to enter a plea of guilty. Id. at 7. In Ground

Three, Petitioner argues that Florida Rules of Criminal Procedure 3.210 and

3.212 mandated that Petitioner undergo another competency hearing before his

plea and counsel’s failure to ensure the proceeding occurred violated his due

process rights as Petitioner’s “sanity issue was inconclusive.” Id. at 8.

Petitioner raised a version of these issues in ground three of his Rule

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3.850 motion.3 Resp. Ex. E at 15-19. The trial court denied the claims as follows:

In his last ground, Defendant alleges ineffective

assistance of counsel for waiving Defendant’s

competency hearing, which is not permitted. This court

recognizes that a defendant cannot waive a competency

hearing, and that a waiver is prohibited by Florida Rule

of Criminal Procedure 3.210. See Raithel v. State, 226

So. 3d 1028 (Fla. 4th DCA 2017). However, the record

again refutes the Defendant’s allegations. A

competency hearing was not waived, rather defense

counsel waived the presentation of live testimony and

evidence, and instead stipulated that the Court could

rely on the written report of the neuropsychologist in

making its findings about competency. Indeed, the trial

court’s order, with the report attached thereto,

indicates same. “[T]he trial court may decide the issue

of competency on the basis of the written reports alone,”

with the consent of the parties. Fowler v. State, 255 So.

2d 513, 515 (Fla. 1971); accord Roman v. State, 163 So.

3d 749, 751 (Fla. 2d DCA 2015) (“If the parties agree,

the trial court can make its competency determination

based solely on experts’ reports.”). In this matter, the

trial court did just that, with the consent of the parties.

Additionally, the trial court did not just rely on

defense counsel’s stipulation to competency, but also

relied on the expert’s reports, and made an express

judicial determination of the defendant’s competency.

(Exhibit T – transcript of proceeding, p. 4, 1.23-25:

“Then based on the report and stipulation by counsel,

3 In their Response, Respondents construe Ground Two of the Petition as being

identical to the claim Petitioner raised in ground two of his Rule 3.850 motion, in

which he argued that trial counsel was ineffective for misadvising him that he would

serve his sentence in a mental hospital following his guilty plea. Resp. at 25. But in

ground three of his Rule 3.850 motion, Petitioner argued that his plea was involuntary

because trial counsel waived his right to a competency hearing and the trial court

failed to conduct a proper competency evaluation prior to his plea. Resp. Ex. E at 15-

19. Thus, the Court finds that Ground One and Two of the Petition are similar to the

allegations of ground three of the Rule 3.850 motion and address the issues together.

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I’ll find that Mr. Henry is competent to proceed at this

point.”). The trial court also entered a written order on

its determination of competency, as required by the

rule. “If a trial court finds that a defendant is

competent to proceed, it must enter a written order so

finding.” Shakes v. State, 185 So. 3d 679, 681 (Fla. 2d

DCA 2016).

To the extent that Defendant’s Motion is

attacking the adequacy of the competency hearing held

by the trial court, or any error on the part of the trial

court in conducting said proceeding, such claims are not

cognizable in a Rule 3.850 Motion for Postconviction

Relief. “In Florida state courts, neither a procedural nor

a substantive competency claim of trial court error may

be raised in a postconviction motion.” Dougherty v.

State, 149 So. 3d 672, 676 (Fla. 2014). Thus, any claim

that Defendant was not afforded proper competency

procedures was procedurally barred because he did not

raise the issue on direct appeal. Based on a review of

the record facts of this case, as well as the binding legal

precedent regarding competency proceedings, this

Court finds that the Defendant is not entitled to relief

on this claim. See McCray v. State, 71 So. 3d 848 (Fla.

2011) (upholding court’s competency finding where

court held a brief competency hearing at which no

witnesses were presented, however the parties

stipulated to competence and the court relied on the

reports received.).

Moreover, this Court finds that the Defendant

has not only failed to establish deficient performance

by his attorney, but has also failed to establish

prejudice in this matter. Specifically, as to the prejudice

prong, the Defendant is unable to show “whether

counsel’s constitutionally ineffective performance

affected the outcome of the plea process. In other words,

to satisfy the ‘prejudice’ requirement, the defendant

must show that there is a reasonable probability that,

but for counsel’s errors, he would not have pled guilty

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and would have insisted on going to trial.” Hill v.

Lockhart, 474 U.S. 52, 59 (1985); see Grosvenor v.

State, 874 So. 2d 1176, 1179 (Fla. 2004). The Defendant

cannot do so herein.

Despite the bare allegation in his Motion that he

would have insisted on going to trial, the record

establishes that Defendant willingly, voluntarily and

knowingly entered into a negotiated disposition with

the State whereby the State waived the death penalty

and agreed to allow the Defendant to plead guilty to a

lesser-included offense. By doing so, Defendant avoided

a possible death sentence or mandatory sentence of life

on a first-degree murder charge. Thus, looking at the

totality of the circumstances, this Court finds that

there was not a reasonable probability that the

defendant would have insisted on going to trial.

Resp. Ex. E at 196-99 (record citations omitted). Petitioner appealed, and the

First DCA per curiam affirmed the denial without a written opinion. Resp. Ex.

H. The Court addresses these claims under the deferential standard for federal

court review of state court adjudications.

i. Trial Court Error

Liberally construing Ground One, Petitioner appears to claim that his

procedural and substantive due process rights were violated with the trial court

failed to adequately evaluate his competency before accepting his guilty plea.

In addressing this issue during Petitioner’s Rule 3.850 proceedings, the state

court found it was procedurally barred because Petitioner failed to raise the

issue on direct appeal. The Court defers to that finding.

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“[T]he conviction of an accused person while he is legally incompetent

violates due process.” Pate v. Robinson, 383 U.S. 375, 378 (1966). “Pate . . .

established a rebuttable presumption of incompetency upon a showing by a

habeas petitioner that the state trial court failed to hold a competency hearing

on its own initiative despite information raising a bona fide doubt as to the

petitioner’s competency.” James v. Singletary, 957 F.2d 1562, 1571 (11th Cir.

1992). “Florida law holds that Pate claims ‘can and must be raised on direct

appeal.’” Tittle v. Sec’y, Fla. Dep’t of Corr., 605 F. App’x 961, 962 (11th Cir.

2015)4 (quoting Nelson v. State, 43 So. 3d 20, 33 (Fla. 2010)).

Here, following the denial of his pro se motion to withdraw plea,

Petitioner, with help from appointed counsel, sought a direct appeal. Resp. Ex.

A at 228. Appellate counsel filed an initial brief under Anders v. California, 386

U.S. 738 (1967), representing that no good faith argument of reversible error

could be made. Resp. Ex. B. The First DCA gave Petitioner leave to file a pro se

initial brief, but he declined to file one. Resp. Ex. D. Later, Petitioner raised the

current trial court error claim in his Rule 3.850 motion, and the state court

refused to consider the claim on an independent and adequate state procedural

4 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

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

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

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ground. Maples v. Thomas, 565 U.S. 266, 280 (2012). There is no evidence that

the state court applied its procedural rule in an “arbitrary or unprecedented

fashion” or in a “manifestly unfair manner.” Judd v. Haley, 250 F.3d 1308, 1313

(11th Cir. 2001). And thus, this issue is procedurally barred, and Petitioner fails

to establish cause and prejudice to excuse the default.

Notwithstanding the procedural bar, and assuming this issue is properly

before the Court for consideration, it still lacks merit. To succeed on a

substantive competency claim, a petitioner must demonstrate by a

preponderance of the evidence that he was in fact incompetent at the relevant

time. Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995); see also

Johnston v. Singletary, 162 F.3d 630, 637 n.7 (11th Cir. 1998). The relevant

standard for assessing a criminal defendant’s mental competency is set forth in

Dusky v. United States, 362 U.S. 402, 402 (1960). The Dusky standard requires

a court to determine whether a defendant “has sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding –

and whether he has a rational as well as factual understanding of the

proceedings against him.” Id.; see also Godinez v. Moran, 509 U.S. 389, 401-02

(1993) (holding the Dusky standard similarly applies in guilty pleas). Whether

a petitioner has the present ability to consult with his lawyer and understand

the proceedings may be gleaned from hearing and trial transcripts: “The best

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evidence of [a petitioner’s] mental state . . . is the evidence of his behavior” at

the relevant time, such as during trial or during a plea hearing. See Wright v.

Sec’y for Dep’t of Corr., 278 F.3d 1245, 1259 (11th Cir. 2002). A petitioner must

do more than assert he was suffering from a mental deficiency at the time.

Indeed, “not every manifestation of mental illness demonstrates incompetence

. . . ; rather, the evidence must indicate a present inability to assist counsel or

understand the charges.” Medina, 59 F.3d at 1107 (internal citations omitted).

Here, nothing in the record demonstrates Petitioner was incompetent

under the Dusky standard at or near the time he entered his plea. About four

months after Petitioner’s arrest, the trial court appointed Dr. William Meadows

to conduct a competency evaluation on Petitioner. Resp. Ex. A at 62. After his

exam, Dr. Meadows issued a report recommending that the trial court declare

Petitioner incompetent to proceed and suggested he be involuntarily

hospitalized for potential competency restoration. Id. at 81. The trial court then

conducted a hearing, during which trial counsel waived the presentation of

expert testimony and accepted the findings of Dr. Meadows. See State v. Henry,

No. 16-2010-CF-4480 (Fla. 4th Cir. Ct.).5 The trial court adjudged Petitioner

5 The Court takes judicial notice of Plaintiff’s state court dockets. See McDowell

Bey v. Vega, 588 F. App’x 923, 927 (11th Cir. 2014) (holding that district court did not

err in taking judicial notice of the plaintiff’s state court docket when dismissing § 1983

action); see also Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“[D]ocket

sheets are public records of which the court could take judicial notice.”).

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incompetent to proceed on September 21, 2010, and ordered that he be

committed for treatment. Resp. Ex. A at 84-86. Petitioner was committed to

Florida State Hospital for treatment where doctors prescribed Petitioner

Zyprexa and Haldol to control psychotic symptoms; Depakote to stabilize mood;

and Cogentin to treat side effects from those medications. Id. at 93. Doctors also

conducted several competency evaluations in December 2010; June 2011; and

in January 2012. Id. at 89. After each evaluation, the respective doctor issued a

written report. Id. at 77-133. A review of those reports shows that Petitioner

was responding well to treatment, maintaining medication compliance, and

showing clear improvement in restoring his competency. Id. But the doctors

continued to recommend that Petitioner be considered incompetent, remain

involuntarily committed, and continue inhouse treatment. Id. After each

evaluation, the trial court conducted a hearing, during which trial counsel

waived the presentation of live testimony and accepted the findings of the

doctor. See Henry, No. 2010-CF-4480.

On July 26, 2012, and August 28 and 29, 2012, Dr. Darah E. Granger

evaluated Petitioner. Resp. Ex. A at 141. In her written report, Dr. Granger

found that Petitioner had “a rational and factual understanding of his legal

situation as well as sufficient ability at present to consult with counsel with a

reasonable degree of rational understanding.” Id. at 152. Based on her findings,

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she recommended that Petitioner be found competent to proceed. Id. Dr.

Granger also relied on Dr. Karen Steingarten’s neuropsychological evaluation

of Petitioner. Id. at 154. On September 24, 2013, the trial court conducted a

hearing, during which the following exchange occurred:

MR. DE LA RIONDA: And finally, Your Honor, I

believe we have an issue as to the competency. I believe

defense is now stipulating, as is the State, to the

defendant’s competency as to all three cases, that the

defendant is competent, he was found competent at the

Florida State Hospital.

MR. BATEH: That’s correct, Your Honor. I believe that

the competency report was from August 31st, 2012. I

don’t know if it was ever placed on the record that Mr.

Henry is competent according to the report, and the

defense would stipulate to that report being entered as

a Court Exhibit.

THE COURT: Okay. Then based on the report and

stipulation by counsel, I’ll find that Mr. Henry is

competent to proceed at this point. So, I’ll enter an

appropriate order to that effect.

Resp. Ex. E at 314-15. That same day, the trial court entered an order declaring

Petitioner competent to proceed.6 Resp. Ex. A at 170.

In December 2013, the state withdrew the death notice and Petitioner

agreed to waive his right to a twelve-person jury. Henry, No. 2010-CF-4480.

6 Petitioner’s state court docket shows that a new judge was assigned to

Petitioner’s case during the timeframe between Dr. Granger’s evaluation and the

issuance of the order declaring Petitioner competent, and that change may explain the

delay between the events.

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About nine months later, Petitioner entered his negotiated plea of guilty. Resp.

Ex. A at 182-83. During his plea hearing, Petitioner showed a “sufficient present

ability to consult with his lawyer . . . [and] he ha[d] a rational as well as factual

understanding of the proceedings against him.” Dusky, 362 U.S. at 402. He

stated, under oath, that he reviewed the negotiated plea form with his attorney,

he understood the contents of the documents, and he confirmed that he signed

the plea form. Resp. Ex. A at 208-09. He testified that he understood he was

facing a charge of first degree murder that carried a mandatory life sentence

but that he was entering a plea of guilty to the lesser included offense of second

degree murder in exchange for a thirty-five-year term of incarceration. Id. at

210-11. He advised the trial court that he was entering his plea freely, willingly,

and voluntarily; and that his decision to plea was because he committed the

offense. Id. at 211-12. Petitioner also stated he was still in compliance with his

medication routine and that treatment did not affect his understanding of the

proceedings.

THE COURT: As you stand here before me are you

under the influence of any drugs, alcohol, medications

or any conditions that would prevent you from

understanding what I am saying or what is occurring

in court?

MR. BATEH: Your Honor, I apologize, Mr. Henry is

prescribed three medications through the jail. One is

Depakote, Klonopin, and the third is Zyprexa. Mr.

Henry has been prescribed these medications for quite

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a while. And as of yesterday when we went over the

blue form and as of today he stated that he understood,

although he is taking those medications.

THE COURT: All right. Is that correct, Mr. Henry? You

are taking those three medications as prescribed?

THE DEFENDANT: Yes, ma’am.

THE COURT: And have you understood everything I

have said to you thus far this morning?

THE DEFENDANT: Yes, ma’am.

Id. at 210-12. Petitioner acknowledged the constitutional rights he waived by

pleading guilty and made no objections when the state provided a factual basis

for the plea. Id. at 212-18. Based on Petitioner’s sworn statements, the trial

court accepted the guilty plea, found it was knowingly and voluntarily entered,

and sentenced Petitioner to a thirty-five-year term in accordance with his

negotiated disposition. Id. at 218-19.

The record shows that Petitioner’s decision to enter his negotiated plea of

guilty was voluntarily his own and made with a full understanding of the

consequences that followed. Considering the totality of the circumstances of

Petitioner’s plea, Petitioner fails to carry his heavy burden to demonstrate he

was actually incompetent when he entered his guilty plea. Thus, Ground One

is denied.

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ii. Ineffective Assistance of Trial Counsel

Liberally construing Grounds Two and Three, Petitioner argues that his

trial counsel was ineffective for waiving Petitioner’s right to a competency

hearing before his plea, which he argues Florida Rule of Criminal Procedure

3.210 prohibits, and for coercing him to enter a plea of guilty. Doc. 1 at 7, 8.

When addressing these issues during Petitioner’s Rule 3.850 proceedings, the

state court found that counsel did not act deficiently because he did not waive

the competency hearing but only waived the presentation of live testimony.

Resp. Ex. E at 197. It also found Petitioner was not prejudiced by any alleged

deficiency as there is no reasonable probability that but for the alleged errors,

Petitioner would have not pled guilty and insisted on going to trial. Id. at 198.

The Court defers to the state court’s adjudication.

In applying that deference, the Court notes that even assuming deficient

performance, Petitioner fails to establish resulting prejudice. Under the

prejudice prong here, Petitioner must show “there was a reasonable probability

that he would have received a competency hearing and been found incompetent

had counsel requested the hearing.” Lawrence v. Sec’y, Fla. Dep’t of Corr., 700

F.3d 464, 477 (11th Cir. 2012) (quoting Strickland, 466 U.S. at 688). Under this

standard, the prejudice prong of the ineffective assistance claim demands the

same showing as that under a substantive competency claim. Notably,

21

Petitioner must demonstrate he was actually incompetent at the time of the

plea. Id. But as discussed earlier, Petitioner fails to make that required

showing.

Indeed, prior to his plea, a medical expert found him competent to

proceed. Resp. Ex. A at 141. Trial counsel and the state advised the trial court

of the expert’s finding and trial counsel waived presentation of testimony and

stipulated to the expert report. Resp. Ex. E at 314-15. In accordance with that

stipulation, the trial court entered an order finding Petitioner competent.

Thereafter, the state withdrew its death notice and Petitioner ultimately

entered into a negotiated plea of guilty to second degree murder in exchange for

a thirty-five-year term of incarceration. Petitioner’s sworn statements made at

his plea colloquy were coherent and voluntarily made, and clearly demonstrate

Petitioner understood the nature of the proceedings and the consequences from

it.

Thus, Petitioner has failed to establish he was actually incompetent at

the time he entered his plea. And he cannot show that but for trial counsel’s

alleged errors, he would have received a competency hearing and been found

incompetent. Nor can he show that but for the errors, he would have declined

the state’s negotiated plea offer and insisted on going to trial on the first degree

murder charge, where he was facing a mandatory life term of incarceration. As

22

such, the state court adjudication of these issues were neither contrary to, nor

an unreasonable application of Strickland, and were not based on an

unreasonable determination of the facts given the evidence presented in the

state court proceedings. Ground Two and Ground Three are denied.

B. Ground Four

Petitioner seemingly argues that the trial court violated his due process

rights when finding Petitioner’s competency was restored, because it relied on

only one expert’s evaluation and refused to consider the three prior experts’

evaluations. Doc. 1 at 10. According to Petitioner, the trial court could only

make such a determination after considering “no more than 3 nor fewer than 2”

expert reports.

Petitioner argues he exhausted this claim by raising it in state court

during his postconviction proceedings. Doc. 1 at 10, 6-7. Petitioner, however, did

not raise this claim in his Rule 3.850 motion, nor did he raise it during his direct

appeal. See Resp. Exs. E at 1-19; B. Thus, there is no evidence that Petitioner

raised this issue in state court and thus it is now unexhausted and procedurally

barred. Petitioner also fails to demonstrate cause for or prejudice from the

procedural bar and he does not argue that a fundamental miscarriage of justice

will result if the claim is not addressed on the merits.

In any event, even if Petitioner properly exhausted this claim in state

23

court, the Court is precluded from considering the claim because it is an issue

of state law. Here, Petitioner argues that the trial court failed to comply with

Florida Rule of Criminal Procedure 3.210, which provides that a defendant may

be evaluated by “no more than 3 experts” when determining competency. Fla.

R. Crim. P. 3.210(b). Whether the trial court followed state procedures is a

matter of state law not proper for federal habeas review.7 As such, Ground Four

is denied.

V. The Reply

Although the Grounds in the Petition seem to only turn on allegations

that Petitioner was incompetent at the time of his guilty plea, the Response and

the Reply reference a separate claim – that trial counsel was ineffective for

failing to investigate a viable insanity defense before Petitioner’s plea. See

Resp. at 29-32; Doc. 11 at 7. Generally, arguments raised for the first time in a

reply brief are not properly before a reviewing court. See Herring v. Sec’y, Dep’t

of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (citations omitted). But even if

this claim were properly before the Court, it lacks merit.

Petitioner raised this issue in ground one of his Rule 3.850 motion. Resp.

Ex. E at 8. The trial court summarily denied the claim:

The Defendant alleges that counsel was

ineffective in failing to pursue an insanity defense.

7 Also, by its own terms, this does not mean that three experts are required to

determined competency.

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Defendant claims that counsel did not investigate and

present the defense of insanity. Defendant alleges that

counsel did not inform the Defendant that such a

defense was available, and that had he known,

Defendant would not have entered the plea and would

have prevailed on an insanity defense and instead

would have been civilly committed. However, this

Court finds that the Defendant’s allegations are refuted

by the record. Smith v. State, 21 So. 3d 72, 74 (Fla. 1st

DCA 2009). To determine whether the record refutes an

allegation, the Court may rely on the sworn testimony

the defendant has given in the plea colloquy as well as

the plea agreement filed with the Court. Johnson v.

State, 22 So. 3d 840, 844 (Fla. 1st DCA 2009). Any

allegations which contradict those answers will not be

entertained. See Id.

First, during the plea colloquy with the trial

court, the Defendant testified that he was satisfied

with his counsel’s representation, that counsel had

answered all of his questions to Defendant’s

satisfaction, and that Defendant had enough time to

review his cases with his attorney. Defendant affirmed

that there was nothing that counsel had done or failed

to do which would have caused the Defendant to need

more time before going through with his plea and

sentence in this matter. It is well-settled in Florida that

a defendant may not seek to go behind his sworn

testimony at a plea hearing in a motion seeking post-

conviction relief. Stano v. State, 520 So. 2d 278, 280

(Fla. 1988); Bir v. State, 493 So. 2d 55, 56 (Fla. 1st DCA

1986); Dean v. State, 580 So. 2d 808, 810 (Fla. 3d DCA

1991).

In this matter, the record establishes that

Defendant was satisfied with his attorney’s

representation. When a defendant enters a plea and

declares under oath that he is satisfied with his

counsel, as this Defendant did, he may not attack

counsel’s effectiveness for failure to investigate or

25

defend a charge in postconviction proceedings. See

Smith v. State, 41 So. 3d 1037, 1040 (Fla. 1st DCA

2010). “By insisting on pleading guilty . . . [the

defendant] render[s] any further investigation

pointless.” Stano, 520 So. 2d at 280. Thus, a claim based

on counsel’s failure to investigate is meritless. Smith,

41 So. 3d at 1040.

Additionally, the Plea Form that was reviewed

and signed by the Defendant refutes the Defendant’s

allegations. Defendant confirmed that he read, signed

and understood the contents of the Plea Form, wherein

he asserts:

“I have had ample time to discuss this

agreement with my attorney. My attorney

and I have read this agreement regarding

my guilty plea together in private, and my

attorney has explained all portions of this

agreement to my complete understanding

and satisfaction. We have fully discussed

all aspects of the case, including all possible

defenses to all charges, including self-

defense and any defense based in

disability, disease, insanity or intoxication.

My attorney has given me the opportunity

to ask questions and has answered all of

my questions fully and completely. My

attorney has taken all actions requested by

me, or has explained to my satisfaction and

agreement why such actions should not be

taken, and I concur with my attorney’s

decisions in that regard. I am completely

satisfied with the services rendered by my

attorney on my behalf in this case.”

(emphasis added) (Exhibit N).

The Defendant, in his plea form, affirmed that counsel

had discussed the insanity defense with him prior to

Defendant entering his plea. This Court will not

26

entertain allegations to the contrary. Therefore, relying

upon both the sworn testimony of the Defendant and

the signed plea form, this Court finds that the record

refutes his allegations, and he is not entitled to relief.

Moreover, the record demonstrates that defense

counsel investigated not only Defendant’s mental

health and competence, but also a possible insanity

defense. Defense counsel’s Motion to Permit Defense

Counsel and Videographer to Attend Psychological

Examination and Testing, outlines that counsel sought

“to determine Defendant’s competency to proceed in his

present mental condition and whether Defendant was

competent at the time the murder was committed.”

(emphasis added). Defense counsel also deposed the

witnesses who, Defendant alleges, saw and heard the

Defendant on the night of the murder and could attest

to Defendant’s odd behavior – Roosevelt Henry,

Satirica Stewart and Mikel Ling. Once Defendant chose

to plead guilty, however, there was no opportunity to

present or reason to continue investigating an insanity

defense. “By insisting on pleading guilty . . . [the

defendant] render[s] any further investigation

pointless.” Stano, 520 So. 2d at 280.

Lastly, Defendant’s claim that he is prejudiced

because he would have succeeded with an insanity

defense and thereafter been civilly committed is

speculative. “Postconviction relief cannot be based on

speculation or possibility.” Maharaj v. State, 778 So. 2d

944, 951 (Fla. 2000); see also Brown v. State, 827 So. 2d

1054, 1056 (Fla. 2d DCA 2002) (finding that

postconviction claim “is speculative, attenuated, and

too fanciful to warrant relief.”). Thus, Defendant is not

entitled to relief on this ground.

Resp. Ex. E at 193-95 (record citations omitted). The First DCA per curiam

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

27

The Court addresses the claim in accordance with the deferential

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

Court finds trial counsel did investigate a potential insanity defense. Indeed,

during Petitioner’s first competency evaluations, trial counsel filed a motion

requesting permission to be present during the examinations to determine

whether Petitioner “was competent at the time the murder was committed.”

Resp. Ex. A at 43. Also, Petitioner’s plea agreement states that counsel

discussed any potential defenses with Petitioner, including an insanity defense.

Id. at 201-02. These documents show that trial counsel did consider a potential

insanity defense and investigated the viability of that defense. Nevertheless, he

likely made a strategic decision to engage in plea negotiations with the state,

which ultimately led to the withdrawal of the death notice and a thirty-five-

year term of incarceration for second degree murder. Thus, 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. This

claim is denied.

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Accordingly, it is

ORDERED AND ADJUDGED:

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

WITH PREJUDICE.

2. The Clerk shall enter judgment dismissing this case with

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

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

appealability. Because this Court has determined that a certificate of

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

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.8

8 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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DONE AND ORDERED at Jacksonville, Florida, this 25t» day of July,

2023.

□□□ Limothy Corrigan

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Jumar Henry, #J33836

Counsel of record

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