Newton v. Secretary, Department of Corrections (Pinellas County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

COREY NEWTON,

Petitioner,

v. CASE NO. 8:17-cv-65-T-02CPT

SECRETARY, DEPARTMENT OF

CORRECTIONS,

Respondent.

ORDER

Corey Newton applies for the writ of habeas corpus under 28 U.S.C. § 2254

(Dkt. 1) and challenges the validity of his state convictions for burglary of a dwelling

and possession of burglary tools, for which Mr. Newton serves thirty years’

imprisonment. In his petition, Mr. Newton alleges a total of seven claims for relief

based on ineffective assistance of counsel. (Dkt. 1). The Court ordered Respondent

Secretary, Department of Corrections, to show cause why relief sought in the petition

should not be granted. (Dkt. 4). Respondent filed a response in opposition to the

petition and a copy of the state court record in paper format. (Dkts. 7, 8, 9).

Mr. Newton filed a reply. (Dkt. 23). Respondent concedes the petition’s timeliness.

(Dkt. 7 at 5).

Upon consideration of the petition (Dkt. 1), the response (Dkt. 7), and the

reply (Dkt. 23), and in accordance with the Rules Governing Section 2254 Cases in

the United States District Courts, itis ORDERED that the petition is DENIED.

Facts!

On the morning of October 10, 2012, law enforcement officers were

conducting surveillance on a 2011 white Toyota Corolla. Law enforcement followed

the vehicle to a residence later determined to be Mr. Newton’s. Officers observed

Mr. Newton unload items from the Corolla to his residence. The Corolla went to the □

victim’s residence and backed into the front yard. Officers observed Mr. Newton

and two other individuals exit the white Toyota Corolla and approach the front door

of the victim’s home. Law enforcement established a perimeter around the residence.

Officer Shaw testified that after hearing glass breaking and banging sounds,

three black males came out of the house. Mr. Newton and one of the other males fled

to a seawall near the home and jumped in the water. Officers apprehended Mr.

Newton on a dock.

Officers observed pry marks on the front door of the victim’s home. The pry

marks were consistent with the use of a screwdriver to open the door. A screwdriver

was found on the floorboard of the Corolla. The victim testified that his front door

had been damaged and a window broken. The police discovered a firearm in a toilet

' This factual summary derives from Mr. Newton’s initial brief to the Second District Court of

Appeal (Exhibit 3) and the record.

in the victim’s home. The victim testified that he was away from home during the

burglary, that the pry marks were not previously there, and that he did not own the

firearm. A television, which had been on a stand, was on the floor by the front door.

Jewelry that belonged to the victim’s wife was found in a pillowcase in the backyard.

Mr. Newton was initially charged with (1) armed burglary of a dwelling, (2)

possession of burglary tools, and (3) resisting an officer without violence. At the

outset of the trial, Mr. Newton pled no contest to Count 3. Following a jury trial, Mr.

Newton was found guilty of the lesser included offense of burglary of a dwelling on

Count 1 and guilty as charged on Count 2. He was adjudicated guilty pursuant to the

jury verdict and prior no contest plea and was concurrently sentenced to 30 years in

prison as a Habitual Felony Offender (HFO) with 15 mandatory minimum years as

a Prison Releasee Reoffender (PRR) on Count 1; five years in prison on Count 2;

and time served on Count 3.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 (““AEDPA”)

governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210

(11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates

a highly deferential standard for federal court review of a state court adjudication,

states in pertinent part:

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

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

(2)resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d).

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court

interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a

federal habeas court to grant a state prisoner’s application for a writ

of habeas corpus with respect to claims adjudicated on the merits in

state court. Under § 2254(d)(1), the writ may issue only if one of the

following two conditions is satisfied - - the state-court adjudication

resulted in a decision that (1) “was contrary to .. . clearly established

Federal Law, as determined by the Supreme Court of the United

States” or (2) “involved an unreasonable application of . . . clearly

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

United States.” Under the “contrary to” clause, a federal habeas

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

opposite to that reached by this Court on a question of law or if the

state court decides a case differently than this Court has on a set of

materially indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from this

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

of the prisoner’s case.

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

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal court was so lacking in

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

law beyond any possibility for fair-minded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011); accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir.

2001) (“It is the objective reasonableness, not the correctness per se, of the state

court decision that we are to decide.”). The phrase “clearly established Federal law”

encompasses only the holdings of the United States Supreme Court “as of the time

of the relevant state-court decision.” Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in

‘order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions

_ are given effect to the extent possible under law.” Cone, 535 U.S. at 693. A federal

court must afford due deference to a state court’s decision. “AEDPA prevents

defendants — and federal courts — from using federal habeas corpus review as a

vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett,

559 U.S. 766, 779 (2010); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

(“This is a ‘difficult to meet,’ .. . and ‘highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the benefit of

the doubt’ . . .”) (citations omitted).

In a per curiam decision without written opinion, the state appellate court

affirmed Mr. Newton’s conviction and sentence. (Exhibit 5, Second District Court

of Appeal Order dated April 8, 2015); see also Newton v. State, 173 So. 3d 976 (Fla.

2d DCA 2015). On May 28, 2015, Mr. Newton filed a Motion for Post-Conviction

Relief pursuant to Rule 3.850(a), Fla. R. Crim. P. (Exhibit 7, Motion for Post-

Conviction Relief, at 1—24).2 Mr. Newton’s 3.850 motion was denied on June 23,

2015. (Exhibit 7, Order Denying Defendant’s Motion for Postconviction Relief, at

34-44). A notice of appeal of the order denying post-conviction relief was filed July

22, 2015. (Exhibit 8, Second District Court of Appeal Case Docket). No briefs were

filed in the post-conviction appeal. Jd. In another per curiam decision without a

written opinion the state appellate.court affirmed the lower court’s denial of Mr.

Newton’s Rule 3.850 motion. (Exhibit 9); see also Newton v. State, 208 So. 3d 1171

(Fla. 2d DCA 2016). The state appellate court’s affirmances warrant deference under

Section 2254(d)(1) because “the summary nature of a state court’s decision does not

lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th

Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom

2 Respondent has filed in paper format the Appendix, including the state court record. References

to the record are made by Exhibit number and page number. To the extent there are multiple

pleadings in each exhibit, the first time the pleading is cited, the Court includes the title of the

pleading.

Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 (“When a

federal claim has been presented to a state court and the state court has denied relief,

it may be presumed that the state court adjudicated the claim on the merits in the

absence of any indication or state-law procedural principles to the contrary.”).

Review of the state court decision is limited to the record that was before the

state court.

We now hold that review under § 2254(d)(1) is limited to the record

that was before the state court that adjudicated the claim on the

merits. Section 2254(d)(1) refers, in the past tense, to a state-court

adjudication that “resulted in” a decision that was contrary to, or

“involved” an unreasonable application of, established law. This

backward-looking language requires an examination of the state-

court decision at the time it was made. It follows that the record

under review is limited to the record in existence at that same time,

i.e., the record before the state court.

Pinholster, 563 U.S. at 181-82. Mr. Newton bears the burden of overcoming by

clear and convincing evidence a state court factual determination. “[A]

determination of a factual issue made by a State court shall be presumed to be □

correct. The applicant shall have the burden of rebutting the presumption of

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

presumption of correctness applies to a finding of fact but not to a mixed

determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert.

denied, 534 U.S. 1046 (2001).

Standard for Ineffective Assistance of Counsel

Mr. Newton claims ineffective assistance of counsel, a difficult claim to

sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground

of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46

F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384,

386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297 (11th Cir. 1998), explains

that Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective

assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is well

settled and well documented. In Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court

set forth a two-part test for analyzing ineffective assistance of

counsel claims. According to Strickland, “[f]irst, the defendant must

show that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104

S. Ct. 2052.

Sims, 155 F.3d at 1305. Strickland requires proof of both deficient performance and

consequent prejudice. Strickland, 466 U.S. at 697 (holding “there is no reason for a

court deciding an ineffective assistance claim .. . to address both components of the

inquiry if the defendant makes an insufficient showing on one”); see also Sims, 155

F.3d at 1305 (“When applying Strickland, we are free to dispose of ineffectiveness

claims on either of its two grounds.”) (citation omitted). “[C]Jounsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A]

court deciding an actual ineffectiveness claim must judge the reasonableness of

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

time of counsel’s conduct.” Id. Strickland requires that “in light of all the

circumstances, the identified acts or omissions were outside the wide range of

professionally competent assistance.” Jd.

Mr. Newton must demonstrate that counsel’s alleged error prejudiced the

defense because “[a]n error by counsel, even if professionally unreasonable, does

not warrant setting aside the judgment of a criminal proceeding if the error had no

effect on the judgment.” 466 U.S. at 691. To meet this burden, Mr. Newton must

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

result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690-91. Mr. Newton cannot meet his burden merely by

showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would have

done. Nor is the test even what most good lawyers would have done.

We ask only whether some reasonable lawyer at the trial could have

acted, in the circumstances, as defense counsel acted at trial.... We

are not interested in grading lawyers’ performances; we are

interested in whether the adversarial process at trial, in fact, worked

adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992); accord Chandler v.

United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial

lawyers, in every case, could have done something more or something different. So,

omissions are inevitable. ... [T]he issue is not what is possible or ‘what is prudent

or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting

Burger v. Kemp, 483 U.S. 776, 794 (1987)). The required extent of counsel’s

investigation was addressed recently in Hittson v. GDCP Warden, 759 F.3d 1210,

1267 (11th Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126

(2015):

[W]e have explained that “no absolute duty exists to investigate

particular facts or a certain line of defense.” Chandler, 218 F.3d at

1317. “[C]ounsel has a duty to make reasonable investigations or

make a reasonable decision that makes particular investigations

unnecessary.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066

(emphasis added). “[C]ounsel need not always investigate before

pursuing or not pursuing a line of defense. Investigation (even a

nonexhaustive, preliminary investigation) is not required for counsel

reasonably to decline to investigate a line of defense thoroughly.”

Chandler, 218 F.3d at 1318. “In assessing the reasonableness of an

attorney’s investigation ... a court must consider not only the

quantum of evidence already known to counsel, but also whether the

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known evidence would lead a reasonable attorney to investigate

further.” Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538.

See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has

no duty to raise a frivolous claim).

Under 28 U.S.C. § 2254(d) Mr. Newton must prove that the 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.” Sustaining a claim of ineffective assistance

of counsel is very difficult because “[t]he standards created by Strickland and §

2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is

‘doubly’ so.” Richter, 562 U.S. at 105 (citations omitted); see also Pinholster, 563

U.S. at 202 (a petitioner must overcome this “‘doubly deferential’ standard of

Strickland and [the] AEDPA”), Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911

(11th Cir. 2011) (“Double deference is doubly difficult for a petitioner to overcome,

and it will be 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.”), and Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir.

2012) (“Because we must view Pooler’s ineffective counsel claim—which is

governed by the deferential Strickland test—through the lens of AEDPA deference,

the resulting standard of review is ‘doubly deferential.’”), cert. denied, 134 S. Ct.

11

191 (2013).

In denying Mr. Newton’s motion for post-conviction relief, the state court

recognized that Strickland governs a claim of ineffective assistance of counsel.

(Exhibit 7 at 34). Because the state court rejected the claims based on Strickland,

. Mr. Newton cannot meet the “contrary to” test in Section 2254(d)(1). Mr. Newton

instead must show that the state court unreasonably applied Strickland or

unreasonably determined the facts. In determining “reasonableness,” a federal

petition for the writ of habeas corpus authorizes determining only “whether the state

habeas court was objectively reasonable in its Strickland inquiry,” not an

independent assessment of whether counsel’s actions were reasonable. Putnam v.

Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002).

The presumption of correctness and the highly deferential standard of review

requires that the analysis of each claim begin with the state court’s analysis.

Discussion

I. Ground One

In ground one, Mr. Newton claims that his trial counsel was ineffective in

failing to object to a constitutional double jeopardy violation. (Dkt. 1 at 5).

Specifically, he claims that sentencing him under both the habitual felony offender

(HFO) statute and the prison releasee re-offender (PRR) statute violated his

constitutional right prohibiting double jeopardy. Jd. Mr. Newton raised this issue in

12

his motion for post-conviction relief pursuant to Rule 3.850(a), Fla. R. Crim. P.

(Exhibit 7 at 3-5).

In rejecting this argument, the state post-conviction court explained:

The PRR statute sets a mandatory minimum provision which creates

a sentencing floor. See Cotto v. State, 139 So. 3d 283 (Fla. 2014).

The PRR statute indicates that “nothing in this subsection shall

prevent a court from imposing a greater sentence of incarceration as

authorized by law, pursuant to s. 775.084 [the habitual offender

statute] or any other provision of the law.” § 775.082(9)(c), Fla. Stat.

(2012). In contrast, the HFO provision allows courts to sentence a

defendant who qualifies as a[n] HFO to an extended term of

imprisonment. See § 775.084(1)(a), Fla. Stat. (2012). Concurrent

HFO and PRR sentences for the same offense are permissible when

the incarceration period of the HFO sentence exceeds the PRR

sentence. See Williams v. State, 129 So. 3d 453 (Fla. 2d DCA 2014);

Sinclair v. State, 65 So. 3d 573, 575 (Fla. 3d DCA 2011) (affirming

sentence of twenty years as an HFO and concurrent fifteen years as

a PRR because “the incarceration period of the HFO sentence

exceeds the PRR sentence[]”). Moreover, concurrent HFO and PRR

sentences for the same offense do not violate double jeopardy.

Sinclair, 65 So. 3d at 574.

(Exhibit 7 at 35-36).

The state post-conviction court properly found trial counsel is not deemed

ineffective for failing to raise an objection when the objection would have been

meritless. Although an ineffective assistance of counsel claim is a federal

constitutional claim which the court considers in light of the clearly established law

of Strickland, when “the validity of the claim that [counsel] failed to assert is clearly

a question of state law, ... we must defer to the state’s construction of its own law.”

Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (citation omitted).

13

Florida law provides that “concurrent HFO and PRR sentences for the same offense

are permissible when the incarceration period of the HFO sentence exceeds the PRR

sentence.” Johnson v. State, 927 So. 2d 251, 252 (Fla. 2d DCA 2006). Here, Mr.

Newton’s 30-year sentence as an HFO exceeded his 15-year mandatory minimum

sentence as a PRR. Thus, even if Mr. Newton’s trial counsel would have objected to

the imposition of the sentence, the objection would have been overruled, and

therefore counsel cannot be deemed ineffective. See Hitchcock v. State, 991 So. 2d

337, 361 (Fla. 2008) (“Counsel cannot be deemed ineffective for failing to make a

meritless objection.”) (citation omitted). Because the state post-conviction court, and

the state appellate court by its affirmance of the Order denying post-conviction

relief, concluded that the trial judge properly applied state law in sentencing Mr.

Newton, Mr. Newton establishes neither deficient performance nor resulting

prejudice from counsel’s alleged error. Strickland, 466 U.S. at 691-92. Mr. Newton

fails to meet his burden of proving that the state court unreasonably applied

Strickland or unreasonably determined the facts by rejecting this ground. 28 U.S.C.

§§ 2254(d)(1), (d)(2).

II. Ground Two

In his second ground, Mr. Newton contends that his counsel was ineffective

in misadvising him to reject a plea offer. (Dkt. 1 at 7). He states that counsel advised

him to not accept a 20-year plea offer from the State. He claims he followed this

14

advice and proceeded to trial. Because he was ultimately sentenced to 30 years with

a 15-year minimum mandatory, a sentence much harsher than the rejected offer, he

argues that counsel’s poor advice deprived him of his Sixth Amendment right to

competent counsel. Jd. Mr. Newton raised this issue in his 3.850 motion. (Exhibit 7

at 6-8).

In ruling against Mr. Newton on this ground, the state post-conviction court

stated as follows:

The Defendant’s claim is refuted by the record. Prior to trial, the

Court asked the Defendant if he wanted to make any offers to the

State to try and resolve his case. The Defendant indicated that he was

unsure, stating that counsel “didn’t say anything to me about any

offers or nothing.” (See Exhibit C: Transcript of Jury Trial, pp. 12-

13). This statement directly contradicts with the Defendant’s claim

that counsel advised him to reject a plea offer.

Moreover, the record reflects that the State indicated that it would

consider an offer of twenty years’ imprisonment. When asked about

this offer, the Defendant indicated that he was not interested in that

sentence. (See Exhibit C at 7-13). Therefore, the Defendant’s claim

that counsel advised him to reject a plea offer which would have

resulted in a lower sentence is without merit. Accordingly, the

Defendant fails to establish that counsel was deficient and this claim

is denied.

(Exhibit 7 at 37).

The record refutes Mr. Newton’s contention that his counsel advised him to

not accept a 20-year plea deal. The exchange between Mr. Newton and the trial court

prior to the start of trial was as follows:

THE COURT: You want to proceed to trial. You don’t want Mr.

15

Holloway to try to make any offers to get the case

resolved; is that correct?

THE DEFENDANT: _ I don’t know.

THE COURT: I’m sorry?

THE DEFENDANT: Well, he didn’t say anything to me about any offers or

nothing.

THE COURT: Well, you’re facing a Life sentence if you’re convicted as

charged on the armed burglary. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: The State indicated they might have before today perhaps

talked to — about something, like, 20 with a 15-year min.

man. or something along those lines. But you are not

interested in that sentence; is that correct?

THE DEFENDANT: No, sir.

(Exhibit 2, Transcript of Jury Trial, Volume I, at 12-13). It appears Mr. Newton

initially indicated to the trial court that a plea offer was not communicated to him.

This would be wholly inconsistent with his position here that he was advised to reject

a 20-year plea offer. And while it is true that defense counsel has an obligation to

communicate formal plea offers from the prosecution, see Missouri. v. Frye, 566

U.S. 134, 144 (2012), to establish the prejudice prong of the Strickland test for

ineffective assistance of counsel, a defendant must show “the outcome of the plea

process would have been different with competent advice.” See Lafler v. Cooper,

566 U.S. 156, 163 (2012). The record reflects that the trial court discussed the

16

possibility of a 20-year plea offer with Mr. Newton, and he was not interested in that

sentence. Thus, even if the plea offer was not communicated by counsel, it was

communicated by the trial court, and Mr. Newton rejected it. Accordingly, Mr.

Newton fails to show that the state court unreasonably applied Strickland or

unreasonably determined the facts in denying this ground of ineffective assistance

of counsel. 28 U.S.C. §§ 2254(d)(1), (d)(2).

Ground Three

Mr. Newton argues that his trial counsel rendered ineffective assistance by

failing to object to the trial court instructing the jury on the laws of principals where

the State’s charging Information did not charge him as a “principal.” (Dkt. 1 at 8).

Because he was not charged as a principal in the felony information, Mr. Newton

urges that the trial court should not have given a jury instruction on the law of

principals.? Mr. Newton raised this issue in his 3.850 motion. (Exhibit 7 at 9-12).

The post-conviction court rejected the argument, stating:

The Defendant fails to establish that counsel was deficient. Under

3 In charging the jury, the trial court gave the following instruction:

The Law of Principals.

If the Defendant helped another person or persons commit or attempt to commit a crime, the

Defendant is a principal and must be treated as if he had done all of the things the other person did

or persons did, if the Defendant had a conscious intent the criminal act be done;

And the Defendant did some act or said some word which was intended to and which did insight

(sic), cause, encourage, assist or advise the other person or persons to actually commit or attempt

to commit the crime.

To be a principal, the Defendant does not have to be present when the crime is committed or

attempted.

(Exhibit 2 at 390-91).

17

Florida law, a person who is charged on an information with

commission of a crime “may be convicted on proof that she aided or

abetted in the commission of such crime.” State v. Larzelere, 979 So.

2d 195, 215 (Fla. 2008) (citing State v. Roby, 246 So. 2d 566, 571

(Fla. 1971)). There is no absolute requirement that the principal □

statute be charged on the information in order to have the jury

instructed on the principal theory; rather, such an instruction may be

given upon the State presenting evidence that the accused aided or

abetted in the commission of the charged crime. Id.; see cf Hampton

v. State, 336 So. 2d 378 (Fla. 1st DCA 1976) (holding that it is

immaterial whether the information alleges that defendant

committed the crime or was merely aiding and abetting in its

commission, as long as proof establishes that he was guilty of either

one of the acts proscribed by statute); Watkins v. State, 826 So. 2d

471, 474 (Fla. 1st DCA 2002) (holding that if an information charges

a defendant with a substantive crime and the proof establishes only

that he was feloniously present, aiding and abetting in the

commission of the crime, a verdict of guilty as charged should be

sustained),

As noted above, there is no requirement that a principal be charged

in the information, as long as the State presents evidence that the

Defendant aided or abetted in the crime. Here, the State presented

extensive evidence of the Defendant’s involvement in the crime. A

surveillance unit followed the Defendant and other co-defendants in

the white Toyota Corolla they were driving. The car stopped at an

unknown residence, later determined to be the Defendant’s house,

and the Defendant was seen exiting and re-entering the white car

while wearing a white t-shirt and black shorts. The white Toyota was

followed to the scene of the crime. The record reflects that three

black males entered the residence. The Defendant was identified by

several officers after fleeing from the back window of the residence

and was subsequently apprehended while wearing a white t-shirt and

black shorts. The record also reflects that physical evidence was

obtained or observed at the scene, including a broken window at the

back of the house, a hand gun in the toilet, a screwdriver which was

found in the white car, several pry marks on the front door of the

residence consistent with a screwdriver, TVs that were found on the

floor near the front door, and a pillowcase of jewelry that was

recovered in the backyard. Therefore, the State presented extensive

18

evidence that the Defendant aided and abetted in the crime.

In addition, counsel discussed the fact that the principal wasn’t

charged in the information and the Court indicated that it did not have

to be. As such, any objection to the principal instruction on this basis

would not have been sustained. See Hitchcock, 991 So. 2d at 361

(Fla. 2008) (“Counsel cannot be deemed ineffective for failing to

make a meritless objection.”).

(Exhibit 7 at 37-39) (citations omitted).

The post-conviction court correctly observed that, under Florida law, Mr.

Newton did not need to be charged as a principal for the jury to be instructed on the

principal theory. “[I]t has long been the law of this state that it is immaterial whether

the indictment or information alleges that the defendant committed the crime or was

merely aiding and abetting in its commission, as long as the proof establishes that

he was guilty of either one of the acts prescribed by the statute.” Hampton, 336 So.

2d at 380 n.9 (citation omitted). The facts cited in the court’s ruling demonstrate that

the State presented ample evidence as to Mr. Newton’s involvement in commission

of the crime, and a review of the trial testimony shows the facts relied upon by the

post-conviction court are supported by the record. See Exhibit 2, Transcript of Trial

Proceedings, at 166-76, 190-94, 196-97, 199, 216-21, 231-33, 248-50, 262, 268—

69, 277, 285-88, 303-05.

A review of the transcript reveals that counsel did inquire of the trial court on

this issue:

MR. HOLLOWAY: Let me ask a question completely separate, tangential

19

thing. Does the principal statute need to be pled in the

Information?

THE COURT: No.

(Exhibit 1, Transcript of Trial Proceedings, at 322). Notwithstanding this exchange,

Mr. Newton complains that defense counsel should have objected to the jury

instruction regarding the law of principals. To show that counsel rendered ineffective

assistance by not objecting to a jury instruction, Mr. Newton must demonstrate that

(1) the instruction was improper, (2) a reasonably competent attorney would have

objected to the instruction, and (3) the failure to object prejudiced him. See

Daugherty v. Dugger, 839 F.2d 1426, 1428 (11th Cir. 1988). Mr. Newton fails to

satisfy these requirements. As discussed above, instructing the jury on the law of

principals is not improper even though such charge was not included in the

information. Thus, any such objection, even if made, would have been overruled as

meritless. Accordingly, counsel cannot be deemed ineffective on this basis. See

Hitchcock, 991 So. 2d at 361. Mr. Newton fails to meet his burden of proving that

the state court either unreasonably applied Strickland or unreasonably determined

the facts by rejecting this ground of ineffective assistance of counsel. 28 U.S.C. §§

2254(d)(1), (d)(2).

IV. Ground Four

Mr. Newton contends that trial counsel was ineffective because counsel

advised Mr. Newton he should not testify on his own behalf. (Dkt. 1 at 10).

20

Specifically, he claims that counsel told him that if he testified, the total substance

of his prior convictions could be introduced by the State via impeachment. Mr.

Newton asserts this advice was erroneous and deprived him of his rights. This issue

was raised by Mr. Newton in his motion pursuant to Rule 3.850. (Exhibit 7 at 12-

15). In rejecting the argument, the post-conviction court stated:

The Defendant fails to establish that counsel was deficient. The

Florida Evidence Code allows for a witness to be impeached for a

prior conviction if the crime was punishable by death or

imprisonment in excess of one year, or if the crime involved

dishonesty or a false statement regardless of the punishment, unless

certain exceptions are met. § 90.610, Fla. Stat. (2012). The

Defendant had four prior convictions at the time of his trial. Thus,

the State could have impeached the Defendant based on these prior

convictions and let the jury weigh his testimony, in light of these

prior convictions, against the rest of the evidence presented at trial.

Accordingly, the Defendant’s contention that counsel gave

misadvice about the State’s ability to impeach him with his prior

convictions is without merit.

In addition, during trial the Court held a colloquy with the Defendant

regarding his desire to testify. On the record, counsel indicated that

he had advised the Defendant not to testify because he was unaware

of what the substance of the Defendant’s testimony would be since

the Defendant refused to confide in him and that he informed the

Defendant that he could inadvertently open the door to damaging

testimony. Based on the Defendant’s prior felonies and counsel’s

statements to the Court regarding his reservations about the

Defendant testifying, counsel rendered adequate assistance in the

exercise of reasonable professional judgment. Strickland, 466 U.S.

at 690-91. Therefore, the Defendant fails to demonstrate that counsel

was deficient.

However, even if counsel was deficient, which the Court does not

find, the Defendant fails to establish that he was prejudiced. During

the colloquy, the Court also advised the Defendant that if he testified,

21

the State could ask him if he had previously been convicted of a

felony and how many times. The Court indicated that the Defendant

would have to acknowledge that he had four prior felonies. When

asked if he wished to testify, the Defendant stated that it was in his

best interest not to testify. Specifically, he said “I just feel it would

jeopardize how they look at me. So that’s why I won’t testify.”

Accordingly, the Court notified the Defendant of how his prior

convictions could be used to impeach him if he testified. The

Defendant then decided it was in his best interest not to testify.

Therefore, he fails to establish that he was prejudiced.

Lastly, the Defendant’s claim that if he testified he would have been

found guilty of trespass instead of burglary is speculative.

Speculative claims cannot form the basis for postconviction relief.

See Spencer v. State, 842 So. 2d 52, 63 (Fla. 2003).

(Exhibit 7 at 39-40) (citations omitted).

Mr. Newton’s claim on this ground is refuted by the record. He had a chance

to speak with his trial counsel about testifying, and thereafter the trial court had a

discussion with him about his decision. After the court’s explanation, Mr. Newton

testified he thought it was in his best interest not to testify. The exchange between

the court, counsel, and Mr. Newton went as follows:

THE COURT: We’re back on the record. We took about 15 minutes to

give Mr. Holloway a chance to talk to Mr. Newton about

whether he chooses to testify or not. Has he made a

decision, Mr. Holloway?

MR. HOLLOWAY: ... 1am not sure if he is going to testify or not.

THE COURT: All right... . I assume you went over with him or talked

to him about the fact that if the State — if he has prior

convictions, the State can impeach him with those?

MR. HOLLOWAY: We have. And I’ve gone over that many times.

22

THE COURT: What’s the number, State, as far as prior convictions.

MS. ST. JOHN: ... Four.

THE COURT: So if he decides to testify, the State can ask him if he

testifies, Have you ever been convicted of a felony, and

the answer would believe (sic) yes. And how many times?

Four. If he chooses not to testify, that’s not something that

would be brought before the jury, right?

MR. HOLLOWAY: That is correct.

THE COURT: Additionally, since there were so many other things that

allegedly went on that day that we navigated around,

depending on what he said on the witness stand, those

things may or may not be something Ms. St. John could

ask about on cross-examination, right?

MR. HOLLOWAY: That is correct.

THE COURT: All right. You shared that with him as well’?

MR. HOLLOWAY: I have shared with my client that I think it would be

absolute folly, going (sic) gas on a fire that already exists

in terms of evidence in this case if he were to take the

stand, and not the least of which is the fact that he has not

trusted me enough to confide with me as to the substance

of his testimony. So he’ll be taking the stand if he chooses

without letting his attorney know in advance what he’s

going to say.

THE COURT: . .. [YJou have to make a decision, Mr. Newton, about

whether you choose to testify in this case. The State’s

rested their case. Your lawyer has no other witnesses. If

you’re going to testify, now is the time you have to make

that decision. Do you understand that?

THE DEFENDANT: Yes, sir.

23

[Mr. Newton was placed under oath.]

THE COURT: Now is the time if you’re going to make that decision.

You’ve obviously talked to Mr. Holloway. It sounds like

you haven’t confided in him what your potential testimony

would be, but you’ve talked to him about that. Have you

made a decision about whether you choose to testify or

not?

THE DEFENDANT: I made a decision because it seems like I’m being

convicted of something — end up being convicted of

something that didn’t happen that way.

THE COURT: So is it your decision that you want to testify in the case?

THE DEFENDANT: Yeah.

THE COURT: You understand Mr. Holloway will ask you some

questions and then the State will get up and be able to ask

you some more questions about what happened, right?

THE DEFENDANT: Yes.

THE COURT: Depending on what you say happened that day, the State

may be able to ask some questions about some things that

you may not want the jury to hear about, i.e., some stolen

property that might have been in the car, that was found in

the residence there. I don’t know what you’re going to say.

So I don’t know whether you’re going to open the flood

gates to allow them to ask you about those kinds of things

or not, and neither does Mr. Holloway. Because apparently

you haven’t told him what you’re going to say. But if you

want to get on the stand and tell the jury what you want to

tell them about what happened that day, you can. But

you'll be subject to cross-examination. You’ll have to

acknowledge that you have four felony convictions. Do

you understand that?

THE DEFENDANT: Yes.

24

THE COURT: Yes?

THE DEFENDANT: Yes. I understand now.

THE COURT: Is it your decision that you want to get on the stand and

testify in this case?

THE DEFENDANT: _ No, sir.

THE COURT: You do not want to testify?

THE DEFENDANT: No, sir.

THE COURT: . .. [D]o you need to talk to Mr. Holloway some more

about it?

THE DEFENDANT: No, sir.

THE COURT: You don’t. You’ve talked to him enough?

THE DEFENDANT: Yes, I have.

THE COURT: All right. So you’ve made a decision that you think it’s in

your best interest not to testify?

THE DEFENDANT: Yes.

THE COURT: Is anybody threatening you or forcing you to get you to

make that decision?

THE DEFENDANT: No.

THE COURT: You feel it’s in your best interest not to testify and that’s

why you’re making that decision; is that correct?

THE DEFENDANT: _I just feel it would jeopardize how they look at me. So

that’s why I won’t testify.

25

(Exhibit 2 at 338-43).

Under Florida law, any witness, including an accused, can be impeached by

evidence of prior felonies. Fla. Stat. § 90.610(1). Here, Mr. Newton had four. The

general rule for impeachment by prior convictions is that the State is restricted to

asking a witness if he or she has been previously convicted of a crime, and if so, the

number of times. Fotopoulos v. State, 608 So.2d 784, 791 (Fla. 1992) (citation

omitted). Thus, unless answered untruthfully, the inquiry regarding prior convictions

stops after a witness identifies if there are prior convictions and how many. /d. The

prosecution is not permitted to inquire regarding the specifics.

In his petition, Mr. Newton claims he was advised by counsel not to testify

because the “total substance of his prior convictions could be brought out by the

State via impeachment.” (Dkt. 1 at 10). Similarly, in his reply, Mr. Newton cites to

Rodriguez v. State, 909 So. 2d 955 (Fla. 3d DCA 2005), for the proposition that it is

error for counsel to advise a defendant that if he testified the prosecution would be

able to place the details of his prior criminal history before the jury. (Dkt. 23 at 3).

In Rodriguez, the defendant’s claim of erroneous advice, along with defendant’s

claim that counsel threatened to withdraw if he took the stand, were not refuted by

the record. 909 So. 2d at 956. But review of the trial transcript here reveals counsel’s

reason for advising against testifying related to Mr. Newton’s failure to share with

counsel what he intended to testify to. Because Mr. Newton had not disclosed to his

26

own counsel his anticipated testimony, trial counsel advised Mr. Newton not to

testify because of a concern that additional damaging testimony may be elicited. This

contradicts Mr. Newton’s claim that he was advised not to testify because the

prosecution would be able to question Mr. Newton as to the specifics of his prior

convictions. However, even if trial counsel was deficient in communicating with Mr.

Newton his reasons for advising against taking the stand, Mr. Newton fails to

establish any prejudice. As discussed by the post-conviction court, the trial court

informed Mr. Newton that the prosecution could ask him whether he had felony

convictions and how many. After hearing that, Mr. Newton chose not to take the

stand because of his concern for how the jury would perceive him after they learned

he had four prior felony convictions. Thus, Mr. Newton decided it was in his own

best interest not to testify. The state post-conviction court reasonably determined the

facts and reasonably applied Strickland in rejecting this ground for ineffective

assistance of counsel. 28 U.S.C. §§ 2254(d)(1), (d)(2).

Vv. Ground Five

Mr. Newton contends that his trial counsel rendered ineffective assistance by

failing to object to the prosecutor’s misconduct during closing arguments when the

prosecutor characterized him as a “thief.” (Dkt. 1 at 12). He argues that the State’s

case and credibility were bolstered due to counsel’s failure to complain about this

prosecutorial misconduct. Mr. Newton raised this issue in his 3.850 motion, (Exhibit

27

7 at 15-19), and the post-conviction court rejected it, stating:

[T]he Defendant maintains that counsel failed to object to the

prosecutor’s improper remark during closing argument,

characterizing the Defendant as a “thief.” Specifically, the Defendant

claims that there was no basis to characterize him as a thief because

“[t]here was no property removed outside the house.” The Defendant

states that the comment bolstered the State’s case and that counsel

should have moved for a mistrial.

When asserting that counsel was ineffective for failing to object to

improper comments by a prosecutor, the defendant must demonstrate

that the comments constitute reversible error. Lugo v. State, 2 So. 3d

1, 16 (Fla. 2008); see also State v. Chattin, 877 So. 2d 747, 749 (Fla.

2d DCA 2004) (stating that under the Strickland analysis, a

defendant must show that “had his counsel preserved the issues, [the

appellate court] likely would have reversed his conviction on direct

appeal’). In order to determine whether improper remarks constitute

reversible error, they should be reviewed within the context of the

closing argument as a whole and considered cumulatively within the

context of the entire record. See Cochran v. State, 711 So. 2d 1159

(Fla. 4th DCA 1998). Reversible error is not found when there is

substantial additional evidence against the defendant. See McArthur

v. State, 801 So. 2d 1037, 1041 (Fla. Sth DCA 2001) (finding no

reversible error when the State made an improper closing argument

bolstering the witness’ testimony because there was sufficient

additional evidence presented of the defendant’s guilt).

In this instance, when the alleged improper statement by the

prosecutor is read in context, it is clear that the statement does not —

constitute reversible error. The prosecutor stated:

Element two. At the time of entering the structure, Corey

Newton had the intent to commit an offense in that

structure. Well, what’s the offense? He’s stealing stuff.

He’s a thief. It’s a theft. They’re moving TVs around.

They’re packing up jewelry. They’re intending to steal.

And again, folks, it doesn’t matter who’s loading it up.

Corey Newton could be standing there with his hands in

his pockets. They’re intending on stealing. Who actually

28

touches the stuff doesn’t matter.

The prosecutor’s comments do not constitute reversible error

because there was significant evidence presented at trial to show the

Defendant’s guilt in the offense. The record reflects the Defendant

was identified by a surveillance team in a white Toyota Corolla, he

and the co-defendants were apprehended at the scene of the crime

while trying to escape the police, a screwdriver was recovered at the

scene and identified as the burglary tool, TVs were found near the

front door, and a pillowcase of jewelry was discovered in the

backyard of the residence. Further, before closing argument began,

the jury was properly instructed that what the lawyers say is not

evidence and should not be considered as evidence. Based on the

extensive evidence against the Defendant presented at trial coupled

with the Court’s instruction pertaining to the attorneys’ statements,

the Defendant cannot contend that the prosecutor’s comment caused

the jury to find Defendant guilty. Any objection on the part of

defense counsel would have proved meritless.

(Exhibit 7 at 40-41) (citations omitted). To establish that counsel was ineffective for

allowing prosecutorial misconduct to occur without objection, Mr. Newton must

demonstrate that the challenged conduct was both improper and prejudiced his

substantial rights. Sexton v. Howard, 55 F.3d 1557, 1559 (11th Cir. 1995). An

improper prosecutorial remark compels habeas corpus relief only if the remark is so

egregious that the proceeding is rendered fundamentally unfair. “[I]t is not enough

that the prosecutors’ remarks were undesirable or even universally condemned. The

relevant question is whether the prosecutors’ comments so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (internal quotations and citations omitted).

In his reply, Mr. Newton cites Sandoval v. State, 689 So. 2d 1258 (Fla. 3d

29

DCA 1997), for the general proposition that it is never proper to call defendants by

names as an example of a criminal type. In Sandoval, however, the court found that

the prosecutors’ remarks in the context of the entire closing argument were not so

egregious to undermine Sandoval’s right to a fair trial. Jd. at 1259. Similarly, here,

the Court cannot say that the prosecution’s singular “thief” reference in the context

of the totality of the argument was so egregious as to deprive Mr. Newton of a fair

trial. Moreover, as pointed out by the post-conviction court, the jury was instructed

that counsel’s remarks are not evidence. Given the amount of evidence presented

against Mr. Newton at trial as thoroughly discussed in the post-conviction court’s

order, Mr. Newton cannot demonstrate that if his counsel had objected to the “thief”

remark in closing, the jury would have reached any different result. Because Mr.

Newton cannot show that the state court unreasonably applied Strickland or

unreasonably determined the facts, his claim of ineffective assistance of counsel on

this ground fails. 28 U.S.C. §§ 2254(d)(1), (d)(2).

VI. Ground Six

Mr. Newton contends that his trial counsel rendered ineffective assistance by

failing to file a motion for new trial where the jury verdict of guilt on a lesser

included offense was contrary to the uncharged principal theory relied on by the

State. (Dkt. 1 at 13). This issue was raised in Mr. Newton’s 3.850 motion for post-

conviction relief. (Exhibit 7 at 20-21). In rejecting this claim, the post-conviction

30

court stated:

The Defendant’s claim is similar to his claim in Ground Three. As

noted in that ground, there is no absolute requirement that the

principal statute be charged on the information in order to have the

jury instructed on the principal theory, rather such an instruction may

be given upon the State presenting evidence that the accused aided

or abetted in the commission of the charged crime. Jacobs v, State,

184 So. 2d 711, 715 (Fla. 1st DCA 1966); see cf Hampton v. State,

336 So. 2d 378 (Fla. 1st DCA 1976) (holding that it is immaterial

whether the information alleges that defendant committed the crime

or was merely aiding and abetting in its commission, as long as proof

establishes that he was guilty of either one of the acts proscribed by

statute); Watkins v. State, 826 So. 2d 471, 474 (Fla. lst DCA 2002)

(holding that if an information charges a defendant with a substantive

crime and the proof establishes only that he was feloniously present,

aiding, and abetting in the commission of the crime, a verdict of

guilty as charged should be sustained).

The State presented an abundance of evidence against the Defendant

at trial. A surveillance team of law enforcement officers followed the

Defendant to the burglarized residence, the Defendant was

apprehended by officers while attempting to escape from the scene,

a screwdriver was found in the vehicle that was later determined to

be the burglary tool, a gun was found in the homeowner’s toilet, a

back window was broken, TVs were placed near the front of the

house, and a pillowcase of jewelry was located in the backyard. . ..

Therefore, because the State presented evidence that the Defendant

aided or abetted in the crime, it is irrelevant that the information did

not charge him as a principal.

(Exhibit 7 at 42-43). As indicated above, there was no error in the State not including

the principal statute in the charging document. See Hampton, 336 So. 2d at 380 n.9.

Thus, there can be no finding of ineffective assistance of counsel as any objection

on this basis would have been overruled as meritless. See Hitchcock, 991 So. 2d at

361. Mr. Newton fails to meet his burden of proving that the state court either

31

unreasonably applied Strickland or unreasonably determined the facts by rejecting

this ground of ineffective assistance of counsel. 28 U.S.C. §§ 2254(d)(1), (d)(2).

VII. Ground Seven

In his final ground, Mr. Newton argues that his trial counsel was ineffective

in failing to inform the court that the HFO sentencing was discretionary, not

mandatory. (Dkt. 1 at 15). Mr. Newton contends that he was sentenced to the

maximum punishment due to the court’s mistaken impression that it had no other

choice under the law. Because counsel failed to inform the court that the statute was

discretionary, Mr. Newton claims he has been deprived of his rights. He raised this

issue in post-conviction proceedings, see Exhibit 7 at 22-24, and the court rejected

same, stating:

The Defendant and counsel received a Notice of Enhanced Penalty,

dated June 13, 2013, which states “Although the State has

determined that the Defendant qualifies for the above-listed

enhanced penalty(s), the Court will determine which of the enhanced

penalty(s) by which the Defendant qualifies and whether such

enhanced penalty shall be imposed.” This language clearly

demonstrates that the Court has discretion in whether or not to

impose the enhancement.

In addition, at the sentencing hearing, the State presented the Court

with the Defendant’s prior convictions and recommended that he be

sentenced to thirty years’ imprisonment as a[n] HFO with a fifteen-

year mandatory minimum as a PRR. In response, trial counsel

requested that the Defendant be sentenced to fifteen years’

imprisonment as a PRR. After hearing from the State, counsel, and

the Defendant, the Court sentenced the Defendant to thirty years’

imprisonment as a[n] HFO and with a fifteen-year mandatory

minimum sentence as a PRR citing the Defendant’s history of

32

burglaries and his concern for the community’s safety as the reason

for imposing the enhanced sentence. This was within the Court’s

discretion, which is apparent from the record.

(Exhibit 7 at 43) (citations omitted). Mr. Newton’s claim that counsel was ineffective

in failing to inform the trial court that the HFO enhancement was discretionary is

refuted by the record. First, trial counsel specifically requested the court “to consider

the 15 years minimum mandatory for the PRR to be sufficient as a total sentence,

and whatever additional sentence on the burglary tools to be a concurrent sentence

...” (Exhibit 1, Transcript of Sentencing Hearing, at 180). Thus, counsel proposed

a sentence that was less than the enhancement. Second, as the post-conviction court

noted, Mr. Newton and his counsel received the Notice of Enhanced Penalty which,

by its language, indicated the court had discretion whether to impose an enhanced

sentence. Finally, the trial court explained the reasons, namely Mr. Newton’s prior

history and felony convictions and the court’s concern for the community’s safety,

for imposing the enhanced sentence. At the sentencing hearing, the court explained:

His history has been nothing but burglaries. There is nothing that

suggests that it’s going to be any different. As the State pointed out,

he did this 40 days after his release from his last sentence. And it’s

clear from the history from the PSI that there is nothing to suggest

that he wouldn’t be committing another burglary within 40 days after

this release, and so that release has to be as far as I can make it under

the circumstances for the protection of the community.

(Exhibit 1, Transcript of Sentencing Hearing, at 186-87). Thus, the transcript reveals

the court was fully aware he had the discretion to impose a lesser sentence, but

33

because of Mr. Newton’s history and the court’s concerns for the safety of the

community, the trial court imposed an enhanced sentence. Mr. Newton’s counsel

requested a lesser sentence, but this was rejected by the trial court under the

circumstances. Thus, Mr. Newton fails to show how his counsel rendered ineffective

assistance. Because Mr. Newton did not meet his burden of proving that the state

court either unreasonably applied Strickland or unreasonably determined the facts

by rejecting this ground of ineffective assistance of counsel, his claim on this ground

fails. 28 U.S.C. §§ 2254(d)(1), (d)(2).

Request for Hearing

In his reply, Mr. Newton requests an evidentiary hearing. (Dkt. 23 at 6). He

argues a hearing is necessary to explore the adequacy of counsel’s advice,

particularly regarding his claim in ground four. His argument in ground four is

refuted by the record and he fails to demonstrate the result would have been

otherwise. This case warrants no evidentiary hearing because “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.” Broadwater v. United States, 292

F.3d 1302, 1303 (11th Cir. 2003).

Conclusion

As set forth above, Mr. Newton’s claim of ineffective assistance of counsel

fails. As to each ground, he fails to meet his burden of proving that the state court

34

either unreasonably applied Strickland or unreasonably determined the facts in

rejecting the ground of ineffective assistance of counsel. 28 U.S.C. §§ 2254(d)(1),

(d)(2).

Any of Mr. Newton’s allegations not specifically addressed herein are without

merit. See Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (instructing “the

district courts to resolve all claims for relief raised in a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254”).

It is therefore ORDERED AND ADJUDGED that:

1. The Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED. The Clerk

shall enter judgment accordingly and close this case.

2. Acertificate of appealability (COA) is DENIED in this case because

Mr. Newton cannot make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). And because Mr. Newton is not entitled to a COA,

he is not entitled to proceed on appeal in forma pauperis.

DONE AND ORDERED in Tampa, Florida, on October 10, 2019.

pk

UNITED STATES DISTRICT JUDGE

Copies to: Petitioner pro se; Counsel of Record

35