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

> District Court, M.D. Florida · October 10, 2019

URL: https://www.frixlaw.com/law-library/cases/10642091

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 10, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642091

## How later opinions describe it (automated extraction)

- 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
- 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”

## Opinion text

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
10

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642091. Public record. Not legal advice.