Webster v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

IAN CHAD WEBSTER,

Petitioner,

vs. Case No.: 3:17-cv-904-J-32PDB

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this case by

filing a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc.

1). He challenges a state court (Duval County, Florida) judgment of conviction

and sentence for conspiracy to traffic cocaine, possession of cocaine while armed,

and tampering with evidence. Respondent opposes the Petition. (Doc. 15,

Response; Doc. 15-1 through Doc. 15-4, Respondent’s Exhibits (“Resp. Ex.”)).

Petitioner has filed a reply brief. (Doc. 21).1 Thus, the case is ripe for review.

1 In his reply, Petitioner states that he never received a copy of the Respondent’s

response. (Doc. 21 at 1, 4). However, one month before he filed the reply brief, the

Court granted Petitioner an extension of time to file a reply and instructed the Clerk’s

office to send him a one-time courtesy copy of the response (Doc. 15) without exhibits.

(Doc. 20). The Court’s docket (which contains entries viewable only by the Court)

reflects that copies were mailed to Petitioner the next day, and that the mail was not

returned as undeliverable.

II. Procedural Background

This case began in early 2011 when Petitioner was arrested and charged

with possession of cocaine while armed (“Case Number 11-743”). (Resp. Ex. A

at 21-22).2 Petitioner pleaded guilty to the offense and received a probationary

sentence. (See id. at 52-57). However, he was later charged with committing two

more crimes while on probation. First, he was charged with conspiracy to traffic

more than 400 grams of cocaine (“Case Number 12-1635”). (Id. at 66). Pursuant

to a negotiated plea agreement, Petitioner pleaded guilty to that charge,

admitted to violating his probation, and agreed to assist the State in

prosecuting other drug offenses. Under the agreement, Petitioner’s sentencing

range would depend on his level of cooperation and assistance. Then, while

working for the police, he was arrested for tampering with evidence (“Case

Number 12-4761”). (Id. at 77-79). The State alleged that after Petitioner made

a controlled purchase of crack cocaine, video captured him taking a portion of

the cocaine for himself. (Id. at 78, 84). Petitioner pleaded guilty to tampering

with evidence as well. (Id. at 138-39).

Based on his guilty pleas, the trial court adjudicated Petitioner guilty of

each offense charged in Case Numbers 11-743, 12-1635, and 12-4761. The court

sentenced Petitioner to 20 years in prison for conspiracy to traffic cocaine. (Id.

2 Unless otherwise noted, citations to Respondent’s exhibits will refer to the

Bates-stamp page number on the bottom-center of each page.

at 132-37). The court also revoked Petitioner’s probation for possession of

cocaine while armed and sentenced him to 15 years in prison for that offense,

as well as 5 years in prison for tampering with evidence, all sentences to run

concurrently. (Id. at 127-31, 154-47).

Petitioner appealed his sentence to the First District Court of Appeal

(“First DCA”). On direct appeal, Petitioner’s public defender filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967). (Resp. Ex. C). Petitioner

did not file a pro se brief on his behalf. On July 10, 2013, the First DCA per

curiam affirmed Petitioner’s conviction and sentence. Webster v. State, 116 So.

3d 1269 (Fla. 1st DCA 2013); (Resp. Ex. D).

On January 8, 2014, Petitioner filed a motion for post-conviction relief in

the trial court pursuant to Rule 3.850, Florida Rules of Criminal Procedure.

(Resp. Ex. F at 1-16). Petitioner filed an Amended Rule 3.850 Motion on August

29, 2016. (Resp. Ex. F at 37-51). Petitioner argued, among other things, that his

guilty plea was unknowing and involuntary and that his trial counsel, Charles

Truncale, gave ineffective assistance. The trial court denied the Amended Rule

3.850 Motion on October 4, 2016. (Id. at 52-190). Petitioner appealed the denial

of the Amended Rule 3.850 Motion to the First DCA, which dismissed the appeal

on February 7, 2017 because Petitioner did not file a timely notice of appeal.

Webster v. State, 229 So. 3d 1227 (Fla. 1st DCA 2017); (Resp. Exs. G, H). The

instant federal habeas petition followed.

III. Governing Legal Principles

A. Standard of Review

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

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

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

2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.

34, 38 (2011)).

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

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

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

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

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation,

the federal court should “look through” the unexplained decision to

the last related state-court decision that does provide a relevant

rationale. It should then presume that the unexplained decision

adopted the same reasoning. But the State may rebut the

presumption by showing that the unexplained affirmance relied or

most likely did rely on different grounds than the lower state court’s

decision, such as alternative grounds for affirmance that were

briefed or argued to the state supreme court or obvious in the record

it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

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

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for evaluating state

court rulings” and “demands that state-court decisions be given the

benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010)

(internal quotation marks omitted). “A state court’s determination

that a claim lacks merit precludes federal habeas relief so long as

fairminded jurists could disagree on the correctness of the state

court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(internal quotation marks omitted). “It bears repeating that even a

strong case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. [at 102] (citing Lockyer v.

Andrade, 538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an unreasonable

application of law requires more than mere error or even clear

error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18 (2003); Lockyer,

538 U.S. at 75 (“The gloss of clear error fails to give proper deference

to state courts by conflating error (even clear error) with

unreasonableness.”); Williams v. Taylor, 529 U.S. 362, 410 (2000)

(“[A]n unreasonable application of federal law is different from an

incorrect application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

action in federal court, a petitioner must exhaust all state court remedies that

are available for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A).

To exhaust state remedies, the petitioner must “fairly present[]” every issue

raised in his federal petition to the state’s highest court, either on direct appeal

or on collateral review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis

omitted). Thus, to properly exhaust a claim, “state prisoners must give the state

courts one full opportunity to resolve any constitutional issues by invoking one

complete round of the State’s established appellate review process.” O’Sullivan

v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope v. Rich, 358 F.3d 852, 854

(11th Cir. 2004) (noting “that Boerckel applies to the state collateral review

process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state prisoner

must exhaust available state remedies, 28 U.S.C. § 2254(b)(1),

thereby giving the State the “‘opportunity to pass upon and correct’

alleged violations of its prisoners’ federal rights.’” Duncan v. Henry,

513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d 865 (1995) (per

curiam) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509,

30 L.Ed.2d 438 (1971)). To provide the State with the necessary

“opportunity,” the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme court with

powers of discretionary review), thereby alerting that court to the

federal nature of the claim. Duncan, supra, at 365-366, 115 S. Ct.

887; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default, which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality of a state

prisoner’s conviction and sentence are guided by rules designed to

ensure that state-court judgments are accorded the finality and

respect necessary to preserve the integrity of legal proceedings

within our system of federalism. These rules include the doctrine of

procedural default, under which a federal court will not review the

merits of claims, including constitutional claims, that a state court

declined to hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[3] supra, at 747–748, 111 S. Ct.

2546; Sykes,[4] supra, at 84–85, 97 S. Ct. 2497. A state court’s

invocation of a procedural rule to deny a prisoner’s claims precludes

federal review of the claims if, among other requisites, the state

procedural rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and consistently

followed. See, e.g., Walker v. Martin, 562 U.S. —, —, 131 S. Ct.

1120, 1127–1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S.

—, —, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417 (2009). The doctrine

barring procedurally defaulted claims from being heard is not

without exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and prejudice from

3 Coleman v. Thompson, 501 U.S. 722 (1991).

4 Wainwright v. Sykes, 433 U.S. 72 (1977).

a violation of federal law. See Coleman, 501 U.S., at 750, 111 S. Ct.

2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). For a petitioner to establish cause and prejudice,

the procedural default “must result from some objective factor

external to the defense that prevented [him] from raising the claim

and which cannot be fairly attributable to his own conduct.” McCoy

v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,

477 U.S. at 488, 106 S. Ct. 2639).[5] Under the prejudice prong, [a

petitioner] must show that “the errors at trial actually and

substantially disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier, 477 U.S. at

494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice – that is, the

incarceration of one who is actually innocent – otherwise would result. The

Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there remains yet

another avenue for him to receive consideration on the merits of his

5 Murray v. Carrier, 477 U.S. 478 (1986).

procedurally defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the conviction of

one who is actually innocent, a federal habeas court may grant the

writ even in the absence of a showing of cause for the procedural

default.” Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence. Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it

is more likely than not that no reasonable juror would have convicted him’ of

the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are summarily rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

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

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

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

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

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

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

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

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

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

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

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

lack of sufficient prejudice, which we expect will often be so, that course should

be followed.” 466 U.S. at 697.

“The question is not whether a federal court believes the state court’s

determination under the Strickland standard was incorrect but whether that

determination was unreasonable – a substantially higher threshold.” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is

“any reasonable argument that counsel satisfied Strickland’s deferential

standard,” then a federal court may not disturb a state-court decision denying

the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Reviewing courts apply a ‘strong presumption’ that counsel’s representation

was ‘within the wide range of reasonable professional assistance.’” Daniel v.

Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

IV. Petitioner’s Claims and Analysis

A. Grounds One and Two

Petitioner claims that the ineffective assistance of trial counsel caused

him to plead guilty unknowingly to conspiracy to traffic cocaine. In Ground One,

Petitioner claims that counsel failed to obtain all discovery, and failed to advise

Petitioner of the relation between the facts and the law. (Doc. 1 at 5, 18-23).6

“Petitioner contends that counsel failed to make an attempt to inform him of all

proper elements and information stemming from the said offense.” (Id. at 5).

Petitioner claims that “this can clearly be seen from Petitioner’s case being

6 Petitioner entered guilty pleas in three different cases, but he does not specify

which case he is referring to in Ground One. However, Petitioner’s 20-year prison

sentence was based on the conviction for conspiracy to traffic cocaine in Case Number

12-1635, which is the case number identified on the first page of his Petition. (Doc. 1

at 1). It is also the only case in which he filed a Rule 3.850 motion. (See Resp. Ex. F at

53 n.1). Thus, the Court presumes Petitioner is referring to his guilty plea to

conspiracy to traffic cocaine.

finalized within 45 days.” (Id.). He alleges that counsel met with him only once

“for the initial briefing of the case,” and “coerced Petitioner into taking the first

plea offer the State Attorney presented.” (Id. at 18). According to Petitioner,

counsel’s failure to properly advise him left him confused about his plea options,

the terms of the plea bargain, and the elements of the charge. (Id. at 18-21).

Petitioner also claims that the plea colloquy did not comply with Rule 11 of the

Federal Rules of Criminal Procedure.

In Ground Two, Petitioner claims that trial counsel gave ineffective

assistance by causing Petitioner to misunderstand the potential penalties

under his plea agreement. (Doc. 1 at 7, 24-26). Petitioner alleges that when he

signed “the original plea agreement form … it stated that Petitioner would

serve no more than 15 years incarceration if he would accept the offer that was

given to him at that point of time.” (Id. at 24). Petitioner asserts that when he

signed the cooperation plea agreement, his counsel and the State led him to

believe “that even if he could not perform his duties, the plea form was still

declaratory.” (Id.). Once in the courtroom for the plea colloquy, Petitioner

alleges that the judge “deviated” from the negotiated plea agreement, and that

during an off-the-record discussion, Petitioner’s counsel advised him to agree to

the altered terms. (See id.). Petitioner also argues that the trial court failed to

inquire whether he understood “the length of sentence that was discussed in

the actual plea agreement,” or whether any promises were made to induce

Petitioner to plead guilty, outside what was stated in the original plea form. (Id.

at 25). In sum, Petitioner claims he “did not have proper advice as to the correct

penalty, because of the two different agreements, ‘one from a written plea form

and another from Judge Norton made in open court.’” (Id. at 26).

Petitioner raised similar claims in grounds one and two of his Amended

Rule 3.850 Motion. (Resp. Ex. F at 38-39, 40-41). In its order denying Rule 3.850

relief, the trial court recounted the relevant facts:

On September 18, 2012, Defendant was sentenced to a term of

incarceration of twenty (20) years, with fifteen (15) years imposed

under the mandatory minimum imprisonment provisions of … §

893.135(1)(b)1c, Florida Statutes, for the crime of Conspiracy to

Traffic in a Controlled Substance. [Exhibit “A”] Specifically, as

charged in the Information, Defendant conspired with others to

possess more than 400 grams of cocaine. [Exhibit “B”]

Defendant entered a plea of guilty to the charged offense pursuant

to a sealed written plea and cooperation agreement with the State

of Florida that outlined the amount of cooperation and assistance

Defendant would need to provide in order to receive a more lenient

sentence. It was understood that Defendant would be released from

jail to work as an informant with law enforcement.

Although this Court was unable to find the unsealed written plea

agreement on the docket or in possession of the Clerk of the Circuit

Court, provisions of the agreement relevant to this motion were

stated on the record by the trial court and the prosecuting attorney

at the time Defendant entered his pleas of guilty. [Exhibit “C” at

14-17, 19] Defendant acknowledged his understanding of the

agreement, and specifically acknowledged that should he be

arrested for a new criminal law violation, the State would not waive

the mandatory minimum sentencing provisions, and he would

receive a sentence between fifteen (15) and thirty (30) years in the

Florida State Prison. He also acknowledged that the State need

only prove a violation of the agreement by a preponderance of the

evidence.

Defendant was on probation for Armed Possession of Cocaine, Case

Number 2011-CF-000743, at the time he entered the plea of guilty

in the instant case. He also entered an admission to violating

probation. He was sentenced to a concurrent term of incarceration

of fifteen (15) years on the probation violation.

After Defendant was released to work with law enforcement, he

purchased, as an agent of law enforcement, crack cocaine from a

third party on May 7, 2012. After the purchase, he was captured on

video breaking off several pieces of the crack cocaine. On May 10,

2012, he was arrested and subsequently charged with Tampering

with Evidence. [Exhibit “D”] He entered a plea of guilty to

Tampering with Evidence in Case Number 2012-CF-004761.

[Exhibit “E” at 5]

This conduct was a violation of his plea agreement and subjected

him, in accordance with the plea agreement, to a sentence between

15 and 30 years, and the imposition of a mandatory minimum

sentence pursuant to Fla. Stat. § 893.135(1)(b)1c.

(Resp. Ex. F at 52-54). Turning to the current claims, the trial court explained:

1. DEFENDANT WAS CONFUSED AT THE TIME OF

ENTERING HIS PLEA BECAUSE HIS ATTORNEY DID

NOT SUFFICIENTLY INVESTIGATE OR SHARE WITH

HIM HIS “DISCOVERY.” The entire and thorough plea

colloquy refutes any claims that Defendant was confused at the

time of entering his plea. [See Exhibit “C”] Furthermore, the

Defendant’s personal letter to the trial court [Judge Norton]

establishes that he was fully aware of his guilt. [See Exhibit

“P”][7]

2. DEFENDANT WAS LED TO BELIEVE THAT HE WOULD

BE SENTENCED TO A TERM OF INCARCERATION

7 In this letter, Petitioner admitted wrongdoing, apologized for his mistakes, and

recognized the need for punishment, but told Judge Norton that drug-use had affected

his judgment and asked the judge for leniency. (Id. at 184-85).

BETWEEN 8 AND 15 YEARS. The Defendant was clearly told,

and clearly acknowledged, that his sentence would be between

15 and 30 years [with a mandatory minimum sentence of 15

years] if he was arrested for a new criminal law violation. [See

Exhibit “C” at 14-17, 19] The Defendant violated the agreement

by committing the crime of Tampering with Evidence. He

entered a plea of guilty to this offense and was sentenced to a

term of five (5) years in prison in Case Number 2012-CF-004761.

(Id. at 54-55).

Petitioner appealed the denial of post-conviction relief to the First DCA.

However, the First DCA dismissed the appeal, evidently because Petitioner

failed to file a timely notice of appeal. Webster, 229 So. 3d 1227; (Resp. Exs. G,

H). See also Shaw v. EPI Townsend, LLC, 107 So. 3d 558 (Fla. 1st DCA 2013)

(appellant’s failure to file a timely notice of appeal required the DCA to dismiss

the appeal for lack of jurisdiction). Respondent fails to mention that the First

DCA dismissed the appeal for lack of jurisdiction, but instead concedes that

Grounds One and Two were properly exhausted and addresses them on the

merits. (Doc. 15 at 12, 19). For purposes of this Order, the Court assumes that

Petitioner’s claims are exhausted and otherwise cognizable on federal habeas

review. Nevertheless, applying de novo review, they are without merit.8

8 It is unclear whether AEDPA deference applies to the trial court’s decision

under the unique circumstances here, where the trial court issued a reasoned decision

on the merits, the last state court to issue a decision (the First DCA) did so on state

procedural grounds, but the respondent fails to raise that procedural defense and

addresses the merits. See Edwards v. Harrington, No. ED CV–10–00968–VBF (VBK),

2011 WL 4434539, at *9–10 & n.5 (C.D. Cal. July 20, 2011) (describing the same

dilemma with respect to claims decided on the merits by a lower state court but that

were unexhausted). In an abundance of caution, the Court reviews the claims de novo,

Petitioner argues that the trial court’s ruling was based on an

unreasonable determination of the facts. (Doc. 1 at 22-23). However, even upon

de novo review, the Court concludes that Grounds One and Two lack merit

based on the state-court record, including Petitioner’s sworn statements during

the change-of-plea colloquy.

The Supreme Court has held that “[b]efore deciding whether to plead

guilty, a defendant is entitled to the effective assistance of competent counsel.”

Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (quotation marks omitted). Thus,

“[t]he Supreme Court has long recognized that Strickland’s two-part inquiry

applies to ineffective assistance of counsel arising out of the plea process.” Osley

v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) (citing Hill v. Lockhart,

474 U.S. 52, 57 (1985)). As with any ineffective assistance claim, a petitioner

must demonstrate that counsel’s performance was deficient and that, but for

counsel’s deficient performance, there is a reasonable probability the result of

the proceeding would have been different. Hill, 474 U.S. at 57 (citing Strickland,

466 U.S. at 687-88, 694). Where a petitioner claims that counsel’s misadvice

caused him to plead guilty, demonstrating prejudice means “show[ing] that

but nevertheless finds that they lack merit. See Berghuis v. Thompkins, 560 U.S. 370,

390 (2010) (“Courts can, however, deny writs of habeas corpus under § 2254 by

engaging in de novo review when it is unclear whether AEDPA deference applies,

because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her

claim is rejected on de novo review.”). The Court also considers, and rejects, the

remaining grounds upon de novo review of the merits.

there is a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Id. at 59.

The Supreme Court has said that “[s]olemn declarations in open court

carry a strong presumption of verity,” and as such, there is a strong

presumption that statements made during a plea colloquy are true. Blackledge

v. Allison, 431 U.S. 63, 74 (1977). A prisoner often “has everything to gain and

nothing to lose from filing a collateral attack upon his guilty plea.” Id. at 71-72.

Therefore, to preserve the advantages of plea bargaining, “the representations

of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as

any findings made by the judge accepting the plea, constitute a formidable

barrier in any subsequent collateral proceedings.” Id. at 73-74. A prisoner who

has made statements at a plea colloquy “‘bears a heavy burden to show his

statements were false.’” Winthrop-Redin v. United States, 767 F.3d 1210, 1217

(11th Cir. 2014) (quoting United States v. Rogers, 848 F.2d 166, 168 (11th Cir.

1988)). “The subsequent presentation of conclusory allegations unsupported by

specifics is subject to summary dismissal, as are contentions that in the face of

the record are wholly incredible.” Blackledge, 431 U.S. at 74. The Supreme

Court has cautioned that “[c]ourts should not upset a plea solely because

of post hoc assertions from a defendant about how he would have pleaded but

for his attorney’s deficiencies. Judges should instead look to contemporaneous

evidence to substantiate a defendant’s expressed preferences.” Lee v. United

States, 137 S. Ct. 1958, 1967 (2017).

The transcript of the change-of-plea colloquy refutes Petitioner’s

allegations that he pleaded guilty unknowingly. (Resp. Ex. A at 186-213).

During the plea hearing before Judge Norton on March 30, 2012, Petitioner

admitted to violating probation in Case Number 11-743 and pleaded guilty to

conspiracy to traffic cocaine in Case Number 12-1635 “pursuant to a negotiated

sentence.” (Id. at 192). First, Petitioner affirmed under oath that, having

discussed the matter with his counsel, he knowingly and freely admitted to a

violation of probation (which was based on the conspiracy to traffic cocaine). (Id.

at 192-96).

Next, the court took Petitioner’s guilty plea for conspiracy to traffic

cocaine. The information charged:

IAN CHAD WEBSTER on February 15, 2012, in the County of

Duval and the State of Florida, did agree, conspire, combine or

confederate with Karen Perla and Jandy Cruz, to knowingly sell,

purchase, manufacture, deliver, bring into the State, or to be

knowingly in actual or constructive possession of 400 grams or more

but less than 150 kilograms of Cocaine, contrary to the provisions

of Sections 893.135(5) and 777.04(3), Florida Statutes.

(Id. at 66). Trial counsel stipulated, in Petitioner’s presence, that there was a

factual basis for the guilty plea. (Id. at 193). The court inquired whether

Petitioner understood the plea agreement, the nature of the charge, and the

rights he waived by pleading guilty:

THE COURT: … At this time, sir, I’m holding up a white form,

and this white form is exactly 1, 2, 3, 4 – – 6

pages. Did you have an opportunity, sir, to read

all six of these pages (indicating)?[9]

DEFENDANT: Uh-huh (affirmative).

THE COURT: And, sir, is that your initials I’m looking at

(indicating)?

DEFENDANT: Yes, ma’am.

THE COURT: All right. After reading this, did you discuss it

with your lawyer?

DEFENDANT: Yes, ma’am.

THE COURT: And did he explain it to you completely, including

any possible defenses you may have, as well as

discussing the implications of your plea, sir?

DEFENDANT: Yes, ma’am.

THE COURT: Are you fully satisfied with his representation of

you?

DEFENDANT: Yes, ma’am.

THE COURT: After discussions with your lawyer, did you sign

the Plea of Guilty in Negotiated Sentence form,

sir?

DEFENDANT: Yes, ma’am.

THE COURT: And, sir, is this your signature I’m pointing to

(indicating)?

9 As the trial court noted in its order denying Rule 3.850 relief, an unsealed

version of the written plea agreement is not available in the record. (Resp. Ex. F at

53). However, the relevant contents of the agreement were read into the record during

the change-of-plea hearing.

DEFENDANT: Yes, ma’am.

THE COURT: Sir, do you understand that you have the right to

plead not guilty?

DEFENDANT: Yes, ma’am.

THE COURT: And, sir, are you pleading guilty today[ ] because

you’re in fact guilty, or because you believe it to

be in your best interest?

DEFENDANT: I guess, it’s in my best interest.

THE COURT: All right. And do you understand that there will

be no trial in this case, sir?

DEFENDANT: Correct.

THE COURT: You’re also giving up your right to call witnesses,

to examine and cross-examine witnesses, as well

as the right to remain silent. This means if you’re

asked about this matter under oath, you must

answer fully and truthfully.

You’re also giving up the right to appeal all

matters relating to the judgment, including the

issue of guilt or innocence.

Do you understand that, sir?

DEFENDANT: I do.

THE COURT: And, Mr. Kennedy [the prosecutor], if you would

announce what Mr. Webster is pleading to today,

and the maximum prison exposure he is facing?

MR. KENNEDY: Your Honor, he is pleading to the one count

Information, which is conspiracy to trafficking in

controlled substance.

In this scenario, it’s one kilo of cocaine, and this

is a first-degree felony, which is punishable by up

to 30 years[ ] in the Florida State Prison.

THE COURT: And, Mr. Webster, do you understand the nature

of that charge?

DEFENDANT: Yes, ma’am.

THE COURT: Before proceeding further, has your lawyer done

everything that you requested?

DEFENDANT: Yes, ma’am.

THE COURT: Is there anything else that you want done in this

case, before proceeding further?

DEFENDANT: No, ma’am.

(Resp. Ex. A at 196-99).

Next, the trial court advised Petitioner that it was “going to go over the

sentencing options that [were] under [his] agreement, to make sure [he]

completely underst[oo]d them.” (Id. at 199). The court advised Petitioner that

the following sentencing ranges and contingencies applied:

(1) If Petitioner satisfied the conditions of the agreement and his

cooperation led to the filing of at least three prosecutable state

narcotics trafficking cases carrying a mandatory minimum

sentence of three years or greater, or if his cooperation led to the

filing of three or more “acceptable and prosecutable” cases that

were not state narcotics trafficking cases, Petitioner’s

sentencing range would be 5 to 12 years in prison.

(2) If Petitioner’s cooperation did not lead to the filing of any

prosecutable state narcotics trafficking cases, but Petitioner

complied with the terms of the agreement, including by

providing “substantial proactive assistance or truthful

testimony,” Petitioner’s sentencing range would be 8 to 15 years

in prison.

(3) If Petitioner violated the terms of the agreement, such as by

providing false information, being arrested for a new law

violation, or failing to appear for a proceeding, hearing, or

interview, his sentencing range would be 15 to 30 years in

prison. The State would need to prove a violation of the plea

agreement only by a preponderance of the evidence.

(Id. at 199-204) (paraphrased). Petitioner affirmed that he understood each of

these terms. Petitioner also affirmed his understanding that the State Attorney

had sole discretion to decide whether a case was prosecutable. (Id. at 200).

Finally, the court inquired whether Petitioner’s guilty plea was free and

voluntary:

THE COURT: Mr. Webster, has anyone threatened or coerced

you into entering this plea?

DEFENDANT: No, ma’am.

THE COURT: Has anyone promised you anything[ ] in order to

get you to this plea?

DEFENDANT: No, ma’am.

THE COURT: Are you entering this plea freely, willingly, and

voluntarily, sir?

DEFENDANT: Yes, I am.

THE COURT: Sir, do you have any questions?

DEFENDANT: No, I don’t.

THE COURT: Sir, are you currently under the influence of any

drugs, alcohol, or medication?

DEFENDANT: No, I’m not.

THE COURT: I will find there is a factual basis to accept your

plea, and accept it at this time.

(Resp. Ex. A at 204-05).

The foregoing record shows that Petitioner entered his guilty plea

knowingly and freely. Contrary to the allegation in Ground One that Petitioner

did not understand how the facts related to the law, Petitioner stated, under

oath, that he understood the charge (which was not complex), that he had

discussed his plea decision with counsel, and that he knowingly pleaded guilty.

Petitioner’s counsel stipulated (in Petitioner’s presence) that there was a factual

basis for the guilty plea. To the extent Petitioner claims that counsel failed to

share all discovery with him, or that he felt rushed into pleading guilty, his

sworn statements discredit that claim. Petitioner stated that he was satisfied

with his counsel’s representation (id. at 197) and that there was nothing more

he wanted done in the case (id. at 199). Petitioner affirmed that he was not

coerced into pleading guilty. (Id. at 204-05). Petitioner also claims he was

“confused” about his plea options because of counsel’s misadvice. But Petitioner

acknowledged, under oath, that he knew he had the right to plead not guilty,

that he had the right to a trial, and that he waived that right by pleading guilty.

Indeed, at the sentencing hearing, trial counsel explained to the trial court that

Petitioner “advised [him] from the start he was not going to fight [the charge],

he wasn’t going to put the State to its burden of proof. It was clear that he had

violated the law.” (Resp. Ex. B at 228).

Petitioner claims that the plea colloquy did not comply with Rule 11 of

the Federal Rules of Criminal Procedure because the trial court did not advise

him of each element of the offense. (Doc. 1 at 20). “The plea colloquy, provided

in Rule 11 of the Federal Rules of Criminal Procedure, constitutes the

constitutional minimum requirements for a knowing and voluntary plea for

federal courts, but that rule is not binding on state courts.” Stano v. Dugger,

921 F.2d 1125, 1141 (11th Cir. 1991) (citations omitted). “The defendant does

not necessarily need to be told the nature of the offense and elements of the

crime at the actual plea proceedings; a knowing and intelligent guilty plea may

be entered on the basis of the receipt of this information, generally from defense

counsel, before the plea proceedings.” Id. at 1142 (citations omitted).

A reviewing federal court may set aside a state court guilty plea

only for failure to satisfy due process: “If a defendant understands

the charges against him, understands the consequences of a guilty

plea, and voluntarily chooses to plead guilty, without being coerced

to do so, the guilty plea ... will be upheld on federal review.”

Id. at 1141 (quoting Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980) (en

banc)). As explained above, the record establishes that Petitioner (1) understood

the charge against him, (2) understood the consequences of pleading guilty, and

(3) pleaded guilty free of coercion, having discussed the matter with his lawyer.

The record also refutes Petitioner’s claim in Ground Two that, due to

counsel’s misadvice, he did not understand the potential penalties under the

plea agreement, or that the trial court “deviated” from the terms of the

agreement. The trial court advised Petitioner that it was “going to go over the

sentencing options that are under your agreement, to make sure you completely

understand them.” (Resp. Ex. A at 199) (emphasis added). As the trial court

reviewed those terms, there was no indication that they differed from the terms

in the written agreement (which Petitioner confirmed he had reviewed with

counsel). Contrary to Petitioner’s allegation that he thought the maximum

sentence would be 15 years in prison, he affirmed under oath that he understood

the maximum penalty to be 30 years in prison, and that if he violated the

agreement, such as by getting arrested for a new law violation, the sentencing

range would be 15 to 30 years’ imprisonment. Petitioner further affirmed that

the State would need to prove a violation of the cooperation agreement by a

preponderance of the evidence, and that he had discussed the preponderance-

of-the-evidence standard with his counsel. And, contrary to his claim that the

court failed to inquire whether any promises were made to induce Petitioner to

plead guilty, the judge asked Petitioner whether “anyone promised you

anything[ ] in order to get you to this plea,” to which Petitioner responded, “No,

ma’am.” (Id. at 205).

After Petitioner entered into the cooperation plea agreement, he was

charged with, and pleaded guilty to, tampering with evidence while working as

a police informant. (Resp. Ex. A at 84, 127-31; Resp. Ex. B at 216-25). That

breach triggered the 15-to-30-year sentencing range under the terms of his

agreement. Notably, when the prosecutor explained at the sentencing hearing

that Petitioner was subject to a range of 15 to 30 years in prison, Petitioner

voiced neither surprise nor objection. (Resp. Ex. B at 226-27, 235). When given

the chance to speak, Petitioner acknowledged that he had broken the law and

requested a sentence below the mandatory minimum because he had “a very

bad drug problem.” (Id. at 235). The trial court ultimately sentenced Petitioner

to a total term of 20 years in prison. (Id. at 240-41). After the court explained

why it imposed that sentence, Petitioner affirmed that he understood why, but

that he had hoped for 15 years in prison. (Id. at 244).

Thus, the record contradicts Petitioner’s allegations in Grounds One and

Two that, because of counsel’s misadvice, he did not enter his plea knowingly

and voluntarily. Although sworn statements during a plea colloquy are not

insurmountable, Petitioner has not carried his burden of overcoming them.

Accordingly, relief on Grounds One and Two is denied.

B. Ground Three

Petitioner claims there “was no factual basis to support the plea of guilt[y]

to trafficking in cocaine” because the factual basis did not support each element

of the charge. (Doc. 1 at 8, 27-29). In Case Number 12-1635, Petitioner was

arrested and charged with conspiracy to traffic cocaine after he and two co-

defendants met with a confidential source at a mall to purchase a kilogram of

cocaine. Petitioner states that he was arrested before he could purchase the

agreed-upon amount of drugs. (Id. at 27). According to Petitioner, “[a] defendant

who is convicted of any level of trafficking has to have full possession of the said

drugs in order to satisfy all requirements [embedded] in [Statute] Fla.

893.135(5).” (Id. at 8, 27). Thus, according to Petitioner, a defendant may not be

convicted of trafficking cocaine where the defendant is arrested before the drugs

are released to the defendant’s actual possession. (Id. at 27).

Petitioner admits that he “made an attempt to purchase [cocaine] from

the confidential informant, but was subsequently arrested before the said drugs

could be taken under his full control[ ].” (Id. at 28). As such, he claims he never

had possession of the drugs because the transaction was never consummated.

(Id.). Petitioner claims he should have been convicted of attempted trafficking

instead. (Id. at 28-29) (citing Sherwood v. State, 734 So. 2d 1050 (Fla. 1st DCA

1998)).10 Petitioner further claims that he would not have pleaded guilty had

counsel advised him that the factual basis was inadequate to establish each

element of the offense. (Id. at 29).

Petitioner raised a similar claim in ground three of his Amended Rule

3.850 Motion. (Resp. Ex. F at 42-43). The trial court denied the claim, writing:

3. DEFENDANT CLAIMS THERE WAS NO FACTUAL BASIS

TO SUPPORT HIS PLEA. This is not a cognizable claim under

Rule 3.850 because it could, and should, have been raised on

direct appeal. However, the record supports the existence of a

factual basis for the plea. [Exhibit “Q”] This claim is untimely.

(Id. at 55). “Exhibit Q,” which the trial court attached to its order, is the arrest

report for conspiracy to traffic cocaine. (Id. at 187-89). It states:

On 02-15-12, a narcotics investigation was conducted at 10300

Southside Blvd (Avenues Mall)[.] Suspect [Petitioner] was

introduced to the confidential source by co-defendants 1 & 2. The

suspect took possession of the kilogram of cocaine and tested it in

front of the co-defendants. The suspect and co-defendants were

together when the $31,500 was delivered to the confidential source

for the purchase of the cocaine.

When the suspect was taken into custody he was forced to the

ground where he chipped his front tooth. The suspect refused rescue

at the scene.

The suspect was transported to the narcotics office where he was

interviewed by Detectives Maynard and Bennett.

10 In addition to Sherwood, Petitioner cites a number of state decisions in Ground

Three of his Petition. However, none of these cases involved defendants who were

charged with and convicted of conspiracy.

Post Miranda the suspect gave a full confession and written

statement about his involvement in the purchase of the kilogram of

cocaine.

The suspect was booked into the [Pretrial Detention Facility].

(Id. at 188).

Petitioner appealed the denial of post-conviction relief to the First DCA.

However, the First DCA dismissed the appeal because Petitioner did not file a

timely notice of appeal. Webster, 229 So. 3d 1227; (Resp. Exs. G, H). Respondent

fails to mention this procedural default, but instead concedes that the claim was

properly exhausted. (Doc. 15 at 23).11 For purposes of this Order, the Court

assumes that the claim is exhausted but concludes it is without merit.

“[D]ue process does not require a state court to find a factual basis for a

guilty plea unaccompanied by a claim of innocence.” Massey v. Warden, 733 F.

App’x 980, 990 n.6 (11th Cir. 2018) (citing Wallace v. Turner, 695 F.2d 545, 548

(11th Cir. 1983)). Petitioner does not claim innocence, nor could he plausibly do

so. Petitioner admitted wrongdoing in his letter to Judge Norton (Resp. Ex. F

at 184-85), at his sentencing (Resp. Ex. B at 235), and in the instant Petition,

where he admits he attempted to buy cocaine from a confidential source (Doc. 1

11 Despite this concession, Respondent may have preserved a procedural default

defense when it observed that the trial court denied the claim as not cognizable under

Rule 3.850 because it could, and should, have been raised on direct appeal. (Doc. 15 at

24); see also Kimbrough v. Sec’y, Fla. Dep’t of Corr., 809 F. App’x 684, 690-91 (11th

Cir. 2020). However, regardless of whether the claim is procedurally defaulted, the

Court finds that it fails on the merits.

at 28-29). Petitioner’s claim that the factual basis was inadequate centers on

the fact that he never took possession of the cocaine. But as shown below, that

is irrelevant to whether he was guilty of conspiracy to traffic cocaine.

Petitioner was charged with, and pleaded guilty to, conspiracy to traffic

cocaine, in violation of Florida Statutes Section 893.135(5). (Resp. Ex. A at 66,

132-37). A person commits the offense of trafficking cocaine if he “knowingly

sells, purchases, manufactures, delivers, or brings into this state, or … is

knowingly in actual or constructive possession of, 28 grams or more of cocaine,

as described in s. 893.03(2)(a)4., or of any mixture containing cocaine, but less

than 150 kilograms of cocaine or any such mixture.” Id., § 893.135(1)(b) (2012).

If the amount of cocaine is 400 grams or more, but less than 150 kilograms, the

crime is punishable by a mandatory minimum of 15 years in prison. Id., §

893.135(1)(b)1.c (2012). The statute provides that “[a]ny person who agrees,

conspires, combines, or confederates with another person to commit any act

prohibited by subsection (1) commits a felony of the first degree and is

punishable as if he or she had actually committed such prohibited act.” Id., §

893.135(5) (2012). “The crime of conspiracy consists of an express or implied

agreement between two or more persons to commit a criminal offense. Both an

agreement and an intention to commit an offense are necessary elements of the

crime.” George v. State, 208 So. 3d 838, 839 (Fla. 5th DCA 2017) (citation

omitted).

The record shows that a factual basis supported Petitioner’s guilty plea.

A defendant who pleads guilty admits the facts alleged by the State. See

Vernold v. State, 376 So. 2d 1166, 1167 (Fla. 1979). The information charged

that on February 15, 2012, in Duval County, Florida, Petitioner “did agree,

conspire, combine or confederate with Karen Perla and Jandy Cruz, to

knowingly sell, purchase, manufacture, deliver, bring into the State, or to be

knowingly in actual or constructive possession of 400 grams or more but less

than 150 kilograms of Cocaine.” (Resp. Ex. A at 66). The arrest report, which

the trial court appended to its order denying Rule 3.850 relief, furnished further

factual support for the guilty plea. See Hall v. State, 603 So. 2d 650, 650-51

(Fla. 1st DCA 1992) (on remand, instructing post-conviction court to attach the

arrest report on which it relied to find a factual basis for the defendant’s guilty

plea). The arrest report detailed how Petitioner and two co-defendants met a

confidential source at the Avenues Mall to purchase one kilogram of cocaine.

(Resp. Ex. F at 188). Petitioner sampled some of the cocaine at the meeting and,

along with his co-conspirators, delivered $31,500 to the confidential source.

Indeed, Petitioner’s counsel stipulated that a factual basis supported the guilty

plea. (Resp. Ex. A at 193).

Petitioner’s argument that the factual basis fell short because he never

took possession of the cocaine is unavailing. Petitioner pleaded guilty to

conspiracy to traffic cocaine, not trafficking cocaine itself. “Conspiracy is a

separate and distinct crime from the offense which is the object of the

conspiracy.” George, 208 So. 3d at 839. Thus, “a punishable conspiracy may

exist whether or not the crime intended to be accomplished by it was

committed.” King v. State, 104 So. 2d 730, 732 (Fla. 1957). The information and

arrest report each support the existence of “an express or implied agreement

between two or more persons” to traffic more than 400 grams of cocaine, coupled

with an intent to commit the offense. George, 208 So. 3d at 839.

Thus, the factual basis was sufficient. To the extent Petitioner claims

counsel was ineffective for stipulating that a factual basis existed, that claim

lacks merit as well. Accordingly, relief on Ground Three is denied.

C. Ground Four

Petitioner claims that his plea agreement was illegitimate because its

terms violated Florida law, rendering its benefits illusory. (See Doc. 1 at 10, 30-

33). Specifically, Petitioner contends that the plea agreement’s substantial

assistance provisions did not comply with Florida Statutes Section 893.135. The

statute contains a subsection on substantial assistance that provides:

The state attorney may move the sentencing court to reduce or

suspend the sentence of any person who is convicted of a violation

of this section and who provides substantial assistance in the

identification, arrest, or conviction of any of that person’s

accomplices, accessories, coconspirators, or principals or of any

other person engaged in trafficking in controlled substances. The

arresting agency shall be given an opportunity to be heard in

aggravation or mitigation in reference to any such motion. Upon

good cause shown, the motion may be filed and heard in camera.

The judge hearing the motion may reduce or suspend the sentence

if the judge finds that the defendant rendered such substantial

assistance.

Fla. Stat. § 893.135(4) (2012). Petitioner contends that his plea agreement

violated § 893.135(4) because it authorized him to be sentenced below the 15-

year mandatory minimum if he provided substantial assistance regarding

crimes other than the February 2012 trafficking offense for which he was

charged.12 Thus, he contends, the plea bargain was void because the substantial

assistance benefits were unlawful and illusory. Petitioner also claims that

counsel gave ineffective assistance by allowing him to enter the plea agreement.

Petitioner raised a similar claim in ground four of his Amended Rule

3.850 Motion. (Resp. Ex. F at 44-45). The trial court denied the claim as

procedurally barred, untimely, and meritless.

4. THE PLEA AGREEMENT WAS UNLAWFUL OR “NOT

LEGITIMATE” BECAUSE IT REQUIRED HIM TO SET UP

NEW CASES BY WORKING AS AN INFORMANT FOR

LAW ENFORCEMENT: This, too, is not a cognizable claim

under Rule 3.850 because it could, and should, have been raised

on direct appeal. The Court also finds this claim to be untimely.

Defendant purchased a trafficking quantity of cocaine from a

confidential source. He was immediately arrested and gave

police a complete confession. Trial counsel wisely viewed the

case as one in which Defendant needed to cooperate, which

Defendant agreed to do, to avoid a fifteen (15) year minimum

12 Petitioner references § 893.135(3), but it appears he intended to reference §

893.135(4). The substantial assistance provision used to be located in subsection (3),

but at least since 1987 it has been located under subsection (4).

mandatory sentence. However, on the first case involving his

cooperation, Defendant attempted to take crack cocaine

(evidence) in violation of his plea agreement.

(Resp. Ex. F at 55-56).

Petitioner appealed the denial of post-conviction relief to the First DCA.

However, the First DCA dismissed the appeal because Petitioner did not file a

timely notice of appeal. Webster, 229 So. 3d 1227; (Resp. Exs. G, H). Respondent

fails to mention this procedural default, but instead concedes that the claim was

properly exhausted. (Doc. 15 at 27).13 For purposes of this Order, the Court

assumes that the claim is exhausted but concludes it is without merit.

The Supreme Court has held that “when a plea rests in any significant

degree on a promise or agreement of the prosecutor, so that it can be said to be

part of the inducement or consideration, such promise must be fulfilled.”

Santobello v. New York, 404 U.S. 257, 262 (1971). If a plea agreement makes

illusory promises, “it would fail from the outset due to a lack of valid

consideration.” United States v. Hunter, 835 F.3d 1320, 1326 (11th Cir. 2016).14

13 Respondent may have preserved a procedural default defense when it observed

that the trial court denied the claim because it could have been raised on direct appeal.

(Doc. 15 at 28); see also Kimbrough, 809 F. App’x at 690-91. Whether or not the claim

is defaulted, the Court finds that it fails on the merits.

14 To the extent Petitioner claims his plea agreement or resulting sentence

violated Florida law, “federal habeas corpus relief does not lie for errors of state law.”

Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (internal quotation marks and citations

omitted).

Under the cooperation plea agreement, Petitioner faced three sentencing

ranges, depending on his level of cooperation and assistance. (Resp. Ex. A at

199-204). First, if Petitioner’s efforts led to the filing of three or more

prosecutable state narcotics trafficking cases carrying a mandatory minimum

sentence of three years or greater, or if it led to the filing of three or more

“acceptable and prosecutable” cases that were not state narcotics trafficking

cases, Petitioner’s sentencing range would be 5 to 12 years in prison. Second, if

Petitioner’s cooperation did not lead to the filing of any prosecutable state

narcotics trafficking cases, but Petitioner complied with the terms of the

agreement, including by providing “substantial proactive assistance or truthful

testimony,” the sentencing range would be 8 to 15 years in prison. Third, if

Petitioner violated the terms of the agreement, such as by providing false

information or being arrested for a new law violation, his sentencing range

would be 15 to 30 years in prison.

Contrary to Petitioner’s allegations, his plea agreement did not violate

Section 893.135(4) by promising to reward Petitioner for cooperating against

someone other than his co-defendants in the February 2012 trafficking offense.

The statute authorizes a sentence reduction if a defendant “provides substantial

assistance in the identification, arrest, or conviction of any of that person’s

accomplices, accessories, coconspirators, or principals or of any other person

engaged in trafficking in controlled substances.” Fla. Stat. § 893.135(4) (2012)

(emphasis added). Thus, Florida law “recognizes that a defendant convicted of

a violation of section 893.135 may benefit via a general reduction of sentence

for assistance relating to matters outside of the particular drug charge against

him,” provided that the requirements of § 893.135(4) are met. Soto v. State, 515

So. 2d 249, 250 (Fla. 5th DCA 1987).15 To the extent the plea agreement

authorized a below-mandatory-minimum sentence if Petitioner gave

substantial assistance in other drug-trafficking cases, the agreement was

consistent with § 893.135(4).

And, the type of assistance Petitioner attempted to provide fell within the

scope of § 893.135(4) and the plea agreement. Petitioner attempted to provide

assistance in a narcotics-trafficking case when he made a controlled purchase

of crack cocaine from a suspect. (See Resp. Ex. A at 78; Resp. Ex. B at 217).

Unfortunately, on his first attempt to cooperate, Petitioner was caught on video

taking several pieces of the cocaine he had just purchased, which led to his

conviction for tampering with evidence. (Resp. Ex. B at 217). Petitioner failed

15 Petitioner relies on Campbell v. State, 453 So. 2d 525 (Fla. 5th DCA 1984),

which the Fifth DCA decided three years before Soto. In Campbell, the court ruled

that § 893.135 did not permit a sentence reduction where a defendant provided

substantial assistance in a drug-trafficking case unrelated to his own charge, and

therefore allowed the defendant to withdraw from his plea agreement. Id. at 526.

However, the version of § 893.135 in effect when Campbell was decided was different.

It only authorized a sentence reduction if the defendant cooperated against “his

accomplices, accessories, coconspirators, or principals.” Fla. Stat. § 893.135(3) (1983).

Later versions of the statute authorized a sentence reduction if the defendant

cooperated, in the alternative, against “any other person engaged in trafficking in

controlled substances.” Fla. Stat. § 893.135(4) (1987).

to reap the benefits of the cooperation agreement not because it violated Florida

law, but because Petitioner violated the agreement.

Contrary to Petitioner’s claims, the plea agreement was consistent with §

893.135(4), at least as the agreement was applied to Petitioner. As the trial

court noted, “[t]rial counsel wisely viewed the case as one in which Defendant

needed to cooperate.” (Resp. Ex. F at 55). Petitioner had reportedly given a full

confession to conspiring to traffic cocaine (id. at 188), and the plea agreement

gave Petitioner the opportunity to escape a 15-year mandatory minimum (see

Resp. Ex. B at 228-29 (counsel discussing the benefits of the cooperation deal)).

Unfortunately, Petitioner violated the agreement. Because the plea agreement

was lawful, and because counsel was not ineffective in negotiating the

agreement, relief on Ground Four is denied.

D. Ground Five

Petitioner claims that the trial court and trial counsel erred by failing to

advise him he could seek withdrawal of his guilty plea to conspiracy-to-traffic

cocaine. (Doc. 1 at 34-37). Petitioner claims that counsel gave ineffective

assistance by not moving to withdraw Petitioner’s plea “when it was determined

that he would not [receive] the [sentence] that Petitioner believed he would

obtain for pleading guilty to the said offense.” (Id. at 34). Petitioner claims that

“[o]nce it was decided that the Petitioner would not receive the 8-15 year

sentence promised by his counsel and the State Attorney, it was an affirmative

duty to permit the Petitioner an opportunity to withdraw his plea and then

leave it up to the judge to accept the motion or deny it.” (Id.).

Petitioner raised a similar claim in ground five of his Amended Rule 3.850

Motion. (Resp. Ex. F at 56). The trial court denied the claim, explaining:

5. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

INFORM DEFENDANT THAT HE COULD WITHDRAW

HIS PLEA WHEN GUIDELINE SENTENCE RANGE WAS

FOR A LONGER SENTENCE THAN CONTEMPLATED AT

TIME PLEA OF GUILTY WAS ENTERED. The guideline

range in the instant case was of little significance to the

sentencing in the instant case because Defendant violated the

plea agreement and was facing a minimum sentence of fifteen

(15) years. It should also be noted that Defendant committed a

new crime between the time he entered the plea and was

sentenced which would account for an increase in his guideline

score. This claim is untimely filed.

(Id.).

Petitioner appealed the denial of Rule 3.850 relief, but the First DCA

dismissed the appeal because Petitioner failed to file a timely notice of appeal.

Webster, 229 So. 3d 1227; (Resp. Exs. G, H). Respondent fails to mention this

procedural default, but instead concedes that the claim was properly exhausted

and addresses it on the merits. (Doc. 15 at 30). For purposes of this Order, the

Court assumes that the claim is exhausted.

Nevertheless, the claim is due to be denied because it is without merit. As

Respondent points out, to withdraw a guilty plea before sentencing, “the

defendant has the burden to show good and sufficient cause to support the

withdrawal.” (Doc. 15 at 34 (citing Gunn v. State, 841 So. 2d 629, 630 (Fla. 2d

DCA 2003); Fla. R. Crim. P. 3.170(f))). “In order to show cause why the plea

should be withdrawn, mere allegations are not enough; the defense must offer

proof that the plea was not voluntarily and intelligently entered.” Robinson v.

State, 761 So. 2d 269, 274 (Fla. 1999) (citations omitted). As discussed regarding

Grounds One and Two, the record establishes that Petitioner knowingly and

voluntarily pleaded guilty to conspiracy to traffic cocaine under the cooperation

plea agreement. When he accepted the plea agreement, Petitioner

acknowledged that if he violated its conditions, he would be subject to a

sentencing range of 15 to 30 years in prison. Petitioner subsequently violated

the agreement by tampering with evidence, an offense he also admitted at his

sentencing hearing. (Resp. Ex. B at 216-25). That violation triggered the

sentencing range of 15 to 30 years in prison. Petitioner’s allegation that he

thought he would still be subject to a reduced sentencing range of 8 to 15 years,

despite violating his plea agreement and tampering with evidence, is incredible.

Indeed, Petitioner expressed no desire to withdraw from his guilty plea at the

sentencing hearing, even after hearing the applicable sentencing range.

Assuming, arguendo, that counsel and the trial court failed to advise

Petitioner that he could seek withdrawal of his guilty plea under Fla. R. Crim.

P. 3.170(f), Petitioner has not shown prejudice. Even if Petitioner had moved to

withdraw his guilty plea, Petitioner could not have shown that his plea was

entered unknowingly or involuntarily. Thus, Petitioner has failed to establish

a reasonable probability that, but for counsel’s omission, the outcome of the

proceeding would have been different. Strickland, 466 U.S. at 694. As such,

relief on this ground is denied.

E. Ground Six

Next, Petitioner claims that the trial court erred when he was sentenced

by a different judge (the Honorable James Daniel) from the one who took his

guilty plea and “was familiar with the case” (the Honorable Virginia Norton).

(Doc. 1 at 38-41). Without explanation, Judge Norton recused herself before

Petitioner’s sentencing (Resp. Ex. A at 125-26), which Petitioner claims left him

“in the blind about his course of options,” denied him due process, and subjected

him to a harsher sentence (Doc. 1 at 38). Petitioner suggests that the change of

judges prejudiced him because Judge Daniel imposed a different sentence than

Judge Norton would have. (See id. at 39-40). Petitioner alleges that Judge

Daniel did not have all the information necessary to impose sentence, but he

does not describe what information Judge Daniel was lacking. (Id. at 40).

Petitioner also argues that counsel should have objected to Judge Norton’s

recusal. (Id. at 40-41).

Petitioner raised a similar claim in ground six of his Amended Rule 3.850

Motion. (Resp. Ex. F at 48-49). The trial court denied the claim, explaining:

6. TRIAL COUNSEL WAS INEFFECTIVE FOR ALLOWING

JUDGE NORTON (ORIGINAL TRIAL JUDGE) TO

RECUSE FROM THE CASE WITHOUT PROPERLY

INFORMING THE DEFENDANT OF THE

JUSTIFICATION FOR THE RECUSAL. There was no

requirement that Judge Norton explain to Defendant or

Defendant’s counsel the reasons for her decision to enter an

order of disqualification. Therefore, trial counsel could not be

ineffective for failing to inform Defendant of Judge Norton’s

reasons for disqualification. The claim is also untimely filed.

(Id. at 56). Petitioner appealed the denial of Rule 3.850 relief to the First DCA,

which dismissed the appeal because of Petitioner’s failure to file a timely notice

of appeal. Webster, 229 So. 3d 1227; (Resp. Exs. G, H). However, Respondent

concedes that this claim is exhausted and does not assert procedural default.

(Doc. 15 at 36). Assuming that the claim is properly before the Court, it is due

to be denied because it is without merit.

Petitioner fails to point to any clearly established rule or law that requires

a trial judge to explain the reasons for his or her recusal, or that a due process

violation occurs when a defendant is sentenced by a different judge from the

one who presided over his change of plea. Moreover, Petitioner’s argument that

he was prejudiced because Judge Daniel imposed a harsher sentence than

Judge Norton would have imposed is purely speculative. Petitioner has no way

of knowing how Judge Norton would have sentenced him. And, although the 20-

year sentence that Judge Daniel imposed was greater than the 15-year

mandatory minimum, it was also less than the 23-to-30-year sentence that the

State sought. (See Resp. Ex. B at 237-38). To the extent Petitioner argues that

the sentencing judge was not familiar with the case, the sentencing transcript

shows that Judge Daniel was well-informed about the facts of the case, the

procedural history, and Petitioner’s personal circumstances. (See id. at 216-45).

Had trial counsel objected to Judge Daniel sentencing Petitioner instead

of Judge Norton, the claim would have been meritless. “A lawyer cannot be

deficient for failing to raise a meritless claim.” Freeman v. Att’y General, 536

F.3d 1225, 1233 (11th Cir. 2008). As such, relief on Ground Six is denied.

F. Ground Seven

Finally, Petitioner claims that counsel gave ineffective assistance by

failing to investigate the circumstances surrounding the charge of tampering

with evidence (which also established that he violated his plea agreement).

(Doc. 1 at 42-49). Petitioner alleges that he did not tamper with evidence or

violate his cooperation agreement when, while working as an informant, he

broke off and took several pieces of crack cocaine acquired in a controlled

purchase. Petitioner contends that sampling the cocaine was inherently part of

the task. Petitioner claims that had counsel investigated this defense, he would

have learned that controlled purchases “require[ ] a buyer to test a small

amount before making a purchase, as any law enforcement officer in the Drug

Task Force would be able to testify to this known fact.” (Id. at 43).

Petitioner failed to raise this claim in state court, either in his original

Rule 3.850 Motion or his Amended Rule 3.850 Motion. As a result, Respondent

argues that Petitioner failed to exhaust this claim. (Doc. 15 at 38-43). Petitioner

acknowledges that he failed to exhaust Ground Seven, but argues he can

overcome the default under the standard of Martinez v. Ryan, 132 S. Ct. 1309

(2012). (Doc. 1 at 47-49). In Martinez,

[t]he U.S. Supreme Court enunciated a narrow exception to the

general rule that the lack of an attorney or attorney error in state

post-conviction proceedings does not establish cause to excuse the

procedural default of a substantive claim. The Supreme Court,

however, set strict parameters on the application of this exception.

It applies only where (1) state law requires a prisoner to raise

ineffective-trial-counsel claims during an initial collateral

proceeding and precludes those claims during direct appeal; (2) the

prisoner failed to properly raise ineffective-trial-counsel claims

during the initial collateral proceeding; (3) the prisoner either did

not have counsel or his counsel was ineffective during those initial

state collateral proceedings; and (4) failing to excuse the prisoner’s

procedural default would result in the loss of a “substantial”

ineffective-trial-counsel claim. The Supreme Court later extended

Martinez’s rule to cases where state procedures, as a practical

matter, make it “virtually impossible” to actually raise ineffective-

trial-counsel claims on direct appeal. Trevino, 569 U.S. at –––, 133

S. Ct. at 1918–21.

Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1164 (11th Cir. 2017) (some

citations omitted).

Petitioner cannot overcome the procedural default because Ground Seven

does not present a substantial ineffective assistance claim. Petitioner pleaded

guilty to tampering with evidence, and he does not explain how counsel’s failure

to investigate a spurious defense rendered his plea unknowing or involuntary.

But, even if he could overcome the procedural default, the claim fails on

the merits. On September 18, 2012, Petitioner appeared before Judge Daniel to

plead guilty to tampering with evidence and to be sentenced in each of his cases.

(Resp. Ex. B at 214-45). The prosecutor summarized the history of the case and

the factual basis for the evidence-tampering charge:

MR. KENNEDY: He pled guilty on [March 30, 2012] to the tiered

plea agreement [for conspiracy to traffic cocaine]

that you just saw, that you just unsealed. The

short explanation of what happened here, he was

on probation, he was arrested as part of a case of

multiple codefendants on the conspiracy to

traffick [sic] case. Basically, he was there to

purchase a kilo of cocaine from the CI. As per the

plea agreement, he was released, he made bond,

while he was out working with law enforcement,

I believe on his first deal actually, he was caught

on video breaking off several pieces of the cocaine

that he had just bought as an agent of the police,

and taking that cocaine. And that is what the last

case – that is [what] the tampering with case

evidence basically is, is that him taking the

cocaine. He has not pled to that[.] I understand

from Mr. Truncale that he’s going to plead to the

Court. That’s a third degree felony, so the State

is in agreement that if you want to run that

concurrent to the other counts, he’ll plead up to

that.

(Id. at 217). Petitioner stated that he had no objection to the State’s

representation of the factual basis. (Id. at 224-25). Petitioner admitted guilt to

the charge, and affirmed that he was pleading guilty because he was in fact

guilty. (Id. at 222). In addition, Petitioner stated that he was satisfied with the

advice and representation of his counsel, with whom he had discussed his

decision to plead guilty beforehand. (Id. at 218-19).

In any event, Petitioner’s proposed defense – that taking cocaine for

himself was necessarily part of the task of engaging in a controlled purchase –

is frivolous. Countless sting operations are executed without informants taking

contraband for themselves. Moreover, Petitioner’s defense rings hollow because

according to the factual basis (with which he agreed), he took several pieces of

cocaine after he had already paid for it. (Id. at 217, 224-25). And according to

the arrest report, Petitioner tried to conceal the pieces of cocaine from law

enforcement. (Resp. Ex. A at 78). Thus, under Strickland, trial counsel could

reasonably have declined to pursue Petitioner’s spurious defense. Because

Ground Seven is procedurally defaulted and meritless, relief is denied.

V. Conclusion

Accordingly, having reviewed each claim in the Petition de novo, it is

hereby ORDERED:

1. Petitioner Ian Chad Webster’s Petition for Writ of Habeas Corpus

Under 28 U.S.C. § 2254 (Doc. 1) is DENIED and this case is

DISMISSED WITH PREJUDICE.

2. The Clerk shall enter judgment accordingly, terminate any pending

motions, and close the file.

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

appealability (COA). Because the Court has determined that a COA

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

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

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

DONE AND ORDERED at Jacksonville, Florida this 14th day of

October, 2020.

TIMOTHY J. CORRIGAN

United States District Judge

16 The Court should issue a COA only if the Petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this

showing, Petitioner “must demonstrate that reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong,” Tennard_v.

Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 4738, 484 (2000)),

or that “the issues presented were ‘adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot □□□

Estelle, 463 U.S. 880, 893 n.4 (1983)). After consideration of the record as a whole, the

Court will deny a COA.

46

lc 19

Copies:

Counsel of record

Ian Chad Webster