Opinion

Leppert v. Secretary, Department of Corrections(Putnam County)

Court: District Court, M.D. Florida
Filed: Mar 27, 2024
Cited by: 0 cases
Authority: More cited than 31.3%

providing a thorough accounting of the enactment of chapter 2014-220, Laws of Florida, codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes

How later courts described this case

providing a thorough accounting of the enactment of chapter 2014-220, Laws of Florida, codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes
“[A] court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”
finding the independent act instruction was not warranted because the evidence showed the cofelons were joint “participants in the robbery and the murder resulted from forces they set in motion”
explaining that it would be an abuse of discretion to impose an upward departure sentence under the 1987 sentencing guidelines if the sentence was “so excessive as to shock the judicial conscience”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MORGAN AMANDA LEPPERT,

Petitioner,

v. Case No. 3:21-cv-292-MMH-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

ORDER

I. Status

Petitioner Morgan Amanda Leppert, an inmate of the Florida penal

system, is proceeding through counsel on a Petition for Writ of Habeas Corpus

under 28 U.S.C. § 2254 (Petition; Doc. 1) with a supporting memorandum (Pet.

Memo.; Doc. 3). Leppert initiated this action in the Ocala Division, but because

she challenges a Putnam County, Florida judgment of conviction, the assigned

judge transferred the case to this Court. See Order (Doc. 10). Respondents

submitted a response to the Petition (Response; Doc. 12) with exhibits (Exs.;

Docs. 13-1, 18-1, 18-2).1 Leppert filed a reply (Reply; Doc. 14). This action is

ripe for review.

II. Relevant Procedural History

On May 22, 2008, a Florida grand jury returned an indictment against

Leppert, who was then only 15 years old, charging three felony offenses: first-

degree murder; burglary with assault or battery; and robbery with a deadly

weapon. Ex. A at 1-2. Specifically, the State of Florida charged Leppert with

the murder of James Thomas Stewart, who Leppert allegedly “beat[], stabb[ed]

. . . with a knife, and suffocat[ed]” on April 25, 2008, while perpetrating or

attempting to perpetrate a burglary or robbery. Id. at 1.

On August 7, 2009, Leppert proceeded to a jury trial in Putnam County

Case No. 08-1171-CF-53. Ex. K. According to trial testimony, which included

two recorded statements by Leppert, she wanted to run away with her 22-year-

old boyfriend, Toby Lowry, but they did not have a vehicle or money, so they

planned to steal both from a random person. Id. at 737. With that intention,

they snuck into Stewart’s home, and ultimately Lowry, with Leppert’s

assistance, beat, stabbed, and suffocated Stewart. Id. at 720-22. Leppert and

1 Per the Court’s Order (Doc. 17), Respondents re-filed exhibits H, I, K, and O

on March 11, 2024 (Doc. 18), because the original copies were incomplete. Citations

to exhibits H, I, K, and O will be to those docketed on March 11, 2024 (Docs. 18-1, 18-

2).

Lowry were taken into custody on May 3, 2008, in Texas, where they had

driven in Stewart’s truck after the murder. Id. at 530-31, 731. Initially, Leppert

was held in a juvenile detention center as a victim/witness because Leppert’s

mother had reported to authorities that she had been missing since April 22,

2018, and an Amber Alert eventually had been issued. Id. at 537-38, 542, 560,

568, 647. The scope of the investigation changed after investigators

interviewed Lowry, who implicated Leppert in the crimes, including Stewart’s

murder. Id. at 718-19.2

The jury found Leppert guilty on all charges. Id. at 985; Ex. M. The trial

court sentenced her in open court on September 29, 2009, to life without the

possibility of parole for first-degree murder and to concurrent life sentences for

burglary and robbery, Ex. O at 14, and entered a written judgment that same

day, Ex. P. Leppert appealed, and during the pendency of her appeal, filed a

counseled motion to correct a sentencing error under Florida Rule of Criminal

Procedure 3.800(b)(2). Ex. Q. In doing so, she argued that the sentences for the

nonhomicide convictions violated Graham v. Florida, 560 U.S. 48 (2010).3 See

generally id. The trial court granted the motion and resentenced Leppert to

2 Leppert told authorities that she willingly ran away from home to be with

Lowry. Ex. K at 601.

3 In Graham, the Supreme Court held that “the Eighth Amendment prohibits

a State from imposing a life without parole sentence on a juvenile nonhomicide

offender.” 560 U.S. at 75.

concurrent 50-year terms on the nonhomicide convictions, Ex. S at 12, and

entered an amended judgment on July 30, 2010, nunc pro tunc to the date of

the original judgment, Ex. T. The court left the sentence on the homicide

conviction unchanged. See id.

On direct appeal, the Fifth District Court of Appeal per curiam affirmed

Leppert’s convictions and sentences without a written opinion. Ex. X (case

number 5D09-3462). After denying Leppert’s motion for rehearing, the Fifth

DCA issued the mandate. Ex. Z; Ex. AA. Thereafter, Leppert filed a pro se

petition for writ of habeas corpus in the Fifth DCA alleging the ineffective

assistance of appellate counsel, Ex. BB, which the Fifth DCA denied, Ex. CC

(case number 5D13-3628).

Proceeding through counsel, Leppert next filed a motion for

postconviction relief under Rule 3.850, Ex. FF,4 and a motion to correct illegal

sentence under Rule 3.800(a), Ex. VV (Amended Rule 3.800(a) Motion). As

grounds for resentencing, Leppert cited Supreme Court precedent and

Florida’s recently enacted juvenile sentencing legislation. Id. at 2 (citing Miller

v. Alabama, 567 U.S. 460 (2012);5 Fla. Stat. §§ 775.082, 921.1401, 921.1402).

4 Leppert originally filed her Rule 3.850 Motion pro se. Ex. EE.

5 In Miller, the Supreme Court held that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without the possibility of parole for

juvenile offenders.” 567 U.S. at 479. “Responding to Miller and . . . Graham . . . the

Florida Legislature unanimously enacted legislation in 2014 designed to bring

See also Ex. DDD at 3-4 (brief on appeal in case number 5D16-2238, detailing

the procedural history of Leppert’s sentencing).

Also in accordance with Florida’s new juvenile sentencing legislation,

specifically section 775.082(1)(b), Leppert filed a motion seeking a jury

determination of whether she “killed, intended to kill, or attempted to kill the

victim.” Ex. TT at 1.6 Leppert’s counsel explained in the motion that an

affirmative factual finding on this issue would result in a minimum mandatory

sentence of 40 years with a review after 25 years per subdivision (b)1., while a

negative finding would dictate no minimum mandatory sentence with a review

after 15 years per subdivision (b)2. See generally id. (citing Apprendi v. New

Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 90 (2013)).

The trial court denied Leppert’s request for a jury determination, Ex.

UU, but conducted three hearings on the postconviction motions, including an

evidentiary hearing, Ex. HH, Ex. SS at 4; Ex. ZZ at 4-6. The postconviction

court ultimately denied Leppert’s Rule 3.850 Motion following an evidentiary

Florida’s juvenile sentencing statutes into compliance with the United States

Supreme Court’s . . . Eighth Amendment juvenile sentencing jurisprudence.” Horsley

v. State, 160 So. 3d 393, 394, 401 (Fla. 2015) (providing a thorough accounting of the

enactment of chapter 2014-220, Laws of Florida, codified in sections 775.082,

921.1401, and 921.1402, Florida Statutes). “Section 921.1402 was enacted in 2014,

while section 775.082 was simultaneously amended in 2014 to add subsection (1)(b).”

Williams v. State, 278 So. 3d 262, 263 n.1 (Fla. 5th DCA 2019).

6 The verdict form did not require the jury to make such a finding. Ex. M.

hearing. Ex. HH; Ex. II. The Fifth DCA per curiam affirmed without a written

opinion, Ex. NN (case number 5D16-2795), and issued the mandate after

denying Leppert’s motion for rehearing, Ex. OO; Ex. PP; Ex. QQ.

The postconviction court, on the other hand, granted Leppert’s Amended

Rule 3.800(a) Motion (announced in open court and in a written order), finding

that she was entitled to resentencing “according to the procedures set forth in

Sections 921.1401, 921.1402, [and] 775.082.” Ex. ZZ at 6-7; Ex. AAA at 2. The

postconviction court also ruled both orally and in writing that the evidence

“clear[ly]” established Leppert “intended to kill the victim, attempted to kill

the victim, and in acting [sic] concert with Toby Lowry, did in fact kill the

victim.” Ex. ZZ at 9-10; Ex. BBB. The postconviction court resentenced Leppert

to the same term of years as previously imposed on each conviction (life on the

homicide conviction and concurrent terms of 50 years on the nonhomicide

convictions) but with a “possibility of release after a review hearing after 25

years.” Ex. ZZ at 10-11; Ex. CCC.7

Through counsel, Leppert appealed her resentencing. Ex. DDD (case

number 5D16-2238). In a per curiam written opinion, the Fifth DCA reversed

7 The postconviction court orally pronounced that Leppert would have a review

hearing after 20 years on the robbery conviction, Ex. ZZ at 11, but the written

judgment provided all three convictions would be subject to review after 25 years, Ex.

CCC.

and remanded only so that the trial court could enter an amended sentencing

order reflecting that Leppert was entitled to “a review of her robbery and

burglary convictions after twenty years,” not twenty-five years, per Florida

Statutes section 921.1402(2)(d). Ex. HHH at 1-2. With respect to the sentence

on the homicide conviction, the Fifth DCA concluded its decision in “a

strikingly similar case” dictated affirmance but, as it did in that similar case

(Williams v. State, 211 So. 3d 1070 (Fla. 5th DCA 2017)),8 certified the

following question of great public importance to the Florida Supreme Court:

Does Alleyne v. United States[9] . . . require the jury

and not the trial court to make the factual finding

under section 775.082(1)(b), Florida Statutes (2016),

as to whether a juvenile offender actually killed,

intended to kill, or attempted to kill the victim?

Id. at 2-3. The Fifth DCA issued the mandate on May 11, 2017. Ex. III.

The Florida Supreme Court granted Leppert’s petition for review,

quashed the Fifth DCA’s decision, and remanded the matter to the Fifth DCA

for reconsideration in light of its recent decision answering the Fifth DCA’s

8 In the “strikingly similar” Williams case, the Fifth DCA held that a factual

determination under section 775.082(b) could be made either by the trial judge or the

jury. 211 So. 3d at 1073 (affirming the trial court’s denial of the appellant’s motion to

empanel a jury).

9 In Alleyne, the Supreme Court held, “Facts that increase the mandatory

minimum sentence are . . . elements [of the crime] and must be submitted to the jury

and found beyond a reasonable doubt.” 570 U.S. at 108.

certified question in the affirmative. Ex. JJJ (citing Williams v. State, 242 So.

3d 280 (Fla. 2018)). In Williams, the Florida Supreme Court held:

Because a finding of actual killing, intent to kill, or

attempt to kill ‘aggravates the legally prescribed range

of allowable sentences,’ Alleyne, 570 U.S. [at 115], by

increasing the sentencing floor from zero to forty years

and lengthening the time before which a juvenile

offender is entitled to a sentence review from fifteen to

twenty-five years, this finding is an ‘element’ of the

offense, which Alleyne requires be submitted to a jury

and found beyond a reasonable doubt.

242 So. 3d at 288.

The Fifth DCA subsequently withdrew its original opinion and mandate

and issued a new opinion. Ex. KKK; Ex. LLL. The Fifth DCA affirmed on the

claims not affected by the Florida Supreme Court’s Williams decision (those on

the nonhomicide sentences) but reversed the sentence imposed on the homicide

conviction because the jury had not made a finding under Florida Statutes

section 775.082(1)(b) whether Leppert “actually killed, intended to kill, or

attempted to kill the victim,” an error the Fifth DCA held was not harmless.

Ex. LLL at 2-3. Accordingly, the court remanded the conviction on that charge

for resentencing. Id. at 3. The court issued the mandate on August 6, 2018. Ex.

MMM.

On remand in the trial court, Leppert filed a motion to declare Florida

Statutes sections 921.1402(2)(b) and 775.082(1)(b)2. to be unconstitutional. Ex.

NNN. The trial court denied that motion. Ex. QQQ. However, in accordance

with the Fifth DCA’s remand order, the trial court resentenced Leppert on the

homicide conviction pursuant to section 775.082(1)(b)2. Ex. OOO. The court

again sentenced Leppert to a life term of imprisonment but with an

opportunity for review after 15 years, per the statute. Id. The court entered a

resentencing judgment on the homicide conviction (Count I) on January 14,

2019, nunc pro tunc to November 6, 2018. Ex. RRR.10

Proceeding through counsel, Leppert appealed. Ex. SSS (case number

5D19-274). The Fifth DCA per curiam affirmed, Ex. VVV, and on December 6,

2019, issued the mandate, Ex. WWW. Leppert sought review in the Florida

Supreme Court. The court declined to accept jurisdiction and denied Leppert’s

petition for review. Ex. AAAA.

III. One-Year Limitation Period

This action was timely filed within the one-year limitation period. See

28 U.S.C. § 2244(d).

10 The January 14, 2019 resentencing judgment did not address the

nonhomicide convictions, Counts II and III. See Ex. RRR. However, the trial court

held a sentencing hearing on November 6, 2018, Ex. OOO, at which it appears

Leppert was resentenced on those convictions with respect to the timing of her review

hearings. See Ex. QQQ at 1 (January 14, 2019 trial court order denying Leppert’s

motion to declare the juvenile sentencing statutory provisions unconstitutional and

noting Leppert’s nonhomicide sentences were subject to review in 20 years).

Respondents note in their Response that the November 6, 2018 resentencing hearing

was never transcribed. See Response at 20.

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.

The pertinent facts of this case are fully developed in the record before the

Court. Because the Court can “adequately assess [Leppert’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

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

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

2016), abrogation recognized on other grounds by Smith v. Comm’r, Ala. Dep’t

of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “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)). As such,

federal habeas review of final state court decisions is “greatly circumscribed

and highly deferential.” Id. (quotation marks omitted) (quoting Hill v.

Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).

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

decision, if any, that adjudicated the claim 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 a written opinion explaining its rationale in order 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 United States Supreme Court has

instructed:

[T]he 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.

Wilson v. Sellers, 584 U.S. 122, 125 (2018). The presumption may be rebutted

by showing that the higher state court’s adjudication most likely relied on

different grounds than the lower state court’s reasoned decision, such as

persuasive alternative grounds that were briefed or argued to the higher court

or obvious in the record it reviewed. Id. at 125-26, 132.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “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) “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); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’”[11] Titlow, 571 U.S.

at ---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.

290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record before the state court

that adjudicated the claim on the merits. See Cullen v. Pinholster, 563 U.S.

11 The Eleventh Circuit has described the interaction between § 2254(d)(2) and

§ 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3

(11th Cir. 2016).

170, 182 (2011) (stating the language in § 2254(d)(1) “requires an examination

of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Titlow, 571 U.S.

at 19. “Federal courts may grant habeas relief only when a state court

blundered in a manner so ‘well understood and comprehended in existing law’

and ‘was so lacking in justification’ that ‘there is no possibility fairminded

jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter, 562 U.S. at

102-03). This standard is “meant to be” a “difficult” one to meet. Richter, 562

U.S. at 102. Thus, to the extent that the petitioner’s claims were adjudicated

on the merits in the state courts, they must be evaluated under 28 U.S.C. §

2254(d).

B. Exhaustion/Procedural Default

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

2254 habeas 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).

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,[12] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[13] 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 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). In order for a petitioner to establish cause,

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

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

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).[14]

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, the

continued incarceration of one who is actually innocent, otherwise would

result. Ward, 592 F.3d at 1157. 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 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).

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

Id. “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 ultimately summarily rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’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) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “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.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. 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.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, 562 U.S. at ---, 131 S.

Ct. at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “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, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (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 ---, 131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference—this one to a state court’s decision—when [courts]

are considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Leppert alleges “the timing of the review hearings

contained in Sections 775.082(1)(b)[2.] and 921.1402(2)(d), Florida Statutes,

are unconstitutional [because] the statutes fail to graduate and proportionate

the punishment to the offense and fail to offer a meaningful opportunity for

release” in violation of Graham. Pet. Memo. at 1, 3. Respondents counter that

this claim is unexhausted and procedurally defaulted because Leppert did not

raise the claim in the state court in a procedurally correct manner. Response

at 29-30. In doing so, they acknowledge Leppert raised the claim in the trial

court through her motion to declare statutory provisions unconstitutional, but

only after the Florida Supreme Court granted her petition for review and

remanded the case for reconsideration in Fifth DCA case number 5D16-2238.

Id. at 27.

Leppert argues in her Reply that she properly exhausted her state

remedies because she raised this claim in the trial court, which addressed it on

the merits. Reply at 1. She further suggests her claim was not ripe when her

case was before the Florida Supreme Court because it was not until the Fifth

DCA reconsidered her homicide sentence on remand that she became “eligible

for punishment under Section 775.082(1)(b)[2.]”15 Id. at 2-4. Finally, she

asserts that to the extent the Fifth DCA denied her appeal as procedurally

barred, the procedural bar “was applied in an arbitrary or unprecedented

fashion, and/or was applied in a manifestly unfair manner.” Id.

Upon review, it appears this claim is unexhausted for the reasons

Respondents advance. The Florida Supreme Court instructed the Fifth DCA in

case number 5D16-2238 to reconsider its ruling regarding Leppert’s homicide

sentence and, in accordance with that instruction, the Fifth DCA in turn

remanded the case to the trial court for resentencing. Ex. JJJ; Ex. LLL. In its

opinion, the Fifth DCA stated in pertinent part:

In the case at hand, the jury was instructed on

first-degree premeditated murder and first-degree

felony murder with burglary or robbery as the

underlying felony. The verdict form did not require the

jury to specify under which theory it found Leppert

guilty. Based upon a similar fact pattern, the Florida

Supreme Court determined in Williams that there was

no clear jury finding that the defendant actually

killed, intended to kill, or attempted to kill the victim

and that the error was not harmless. 242 So. 3d at 289,

291. The court further held that “[w]here the error

cannot be deemed harmless, the proper remedy is to

resentence the juvenile offender pursuant to section

775.082(1)(b)2., Florida Statutes (2016).” Id. at 282.

15 Section 775.082(1)(b)2. addresses sentencing for those who “did not actually

kill, intend to kill, or attempt to kill the victim,” whereas subdivision (1)(b)1. of that

section—under which Leppert had been resentenced before remand—is the provision

that addresses sentencing for those who “actually killed, intended to kill, or

attempted to kill the victim.” See Fla. Stat. § 775.082(1)(b)1., 2. (emphasis added).

Because we conclude that the error was not harmless,

we reverse the sentence imposed for the murder

conviction and remand for Leppert to be resentenced

on that charge pursuant to section 775.082(1)(b)2.

Ex. LLL at 2-3.

Leppert raised a constitutional challenge for the first time on remand

from Fifth DCA case number 5D16-2238, even though she argued to the Fifth

DCA in that appeal that resentencing under subdivision (1)(b)2. of section

775.082 was the preferred or appropriate course of action. Ex. DDD at 34

(arguing the trial court “reversibly erred by making the factual determination

that [Leppert] actually killed or intended to kill the victim, rather than either

(a) empaneling a jury . . . or (b) . . . sentencing [Leppert] under Section

775.082(1)(b)[2.]”). She did not assert a constitutional challenge to the timing

of the review periods to which she would have been entitled if she were to be

resentenced in accordance with her request: under section 775.082(1)(b)2. on

the homicide conviction, with a review after 25 years; and under section

921.1402(2)(d) on the nonhomicide convictions, with a review after 20 years.

See id.16

16 Notably, after Florida’s juvenile sentencing scheme was enacted, Leppert

consistently requested in the trial court to be resentenced on the homicide conviction

under section 775.082(1)(b)2. because the jury had not made a finding that she

“actually killed, intended to kill, or attempted to kill the victim.” Ex. TT (motion to

empanel a jury and for resentencing); Ex. VV (Amended Rule 3.800(a) Motion).

In its answer brief on appeal from the denial of Leppert’s motion to

declare statutory provisions unconstitutional (case number 5D19-0274), the

state argued Leppert’s Eighth Amendment claim was both “unpreserved and

meritless.” Ex. TTT at 5. According to the state, the claim was unpreserved

because Leppert did not raise a constitutional challenge to the juvenile

sentencing scheme in the Florida Supreme Court. Id. at 6, 9. As such, the state

argued, the Fifth DCA lacked the authority to “modify, nullify, or evade [the

Supreme Court’s] mandate,” which directed that the Fifth DCA reconsider its

opinion on Leppert’s sentence in light of its Williams decision. Id. at 8. The

state contended, “[I]t is not this Court’s or the trial court’s place to depart from

the sentencing framework explicitly ordered by the Florida Supreme Court, or

to declare its remand order unconstitutional.” Id. at 9.

In affirming the postconviction court’s ruling, the Fifth DCA appears to

have accepted the state’s procedural bar argument, citing two district court of

appeal opinions: Williams v. State, 278 So. 3d 262 (Fla. 5th DCA 2019); and

Copeland v. State, 240 So. 3d 58 (Fla. 1st DCA 2018). Ex. VVV. In each opinion,

the respective appellate court found the appellant’s failure to challenge the

constitutionality of the juvenile sentencing statutes in the Florida Supreme

Court meant that neither the district court of appeal nor the trial court could

deviate from or exceed the bounds of the Supreme Court’s instruction. See

Copeland, 240 So. 3d at 60; Williams, 278 So. 3d at 267. Indeed, in Copeland,

the First DCA rejected the appellant’s argument that section 921.1402(2)(a)

was unconstitutional because “the Florida Supreme Court issued explicit

instructions to the trial court that it resentence [the appellant] ‘in conformance

with the framework established in . . . sections 775.082, 921.1401, and

921.1402 of the Florida Statutes.’” 240 So. 3d at 60. The court reasoned as

follows:

If [the appellant] had a constitutional problem with

being resentenced under this framework with its

sentence-review prohibition, he should have argued

that point to the Florida Supreme Court before it

remanded his case. Now, on remand, it is hardly this

court’s or the trial court’s place to depart from the

sentencing framework explicitly ordered by the

Florida Supreme Court, or to declare its remand order

unconstitutional.

Id. And, in Williams, relying on the reasoning in Copeland, the Fifth DCA

“declined to pass on the constitutionality of [the juvenile sentencing] statutes”

because the Florida Supreme Court had already mandated the appellant “was

entitled to resentencing under section 775.082(1)(b)2.,” and the appellant did

not raise “constitutional concerns with being resentenced under [the] statute”

in the Florida Supreme Court. 278 So. 3d at 267. As such, the court affirmed

the appellant’s sentences because the appellant “[was] essentially requesting

that the [DCA] determine the Florida Supreme Court’s earlier remand order

to be unconstitutional, which [the DCA had] no authority to do.” Id. at 268.

Here, in affirming the trial court’s order, the Fifth DCA relied upon a

procedural bar that was firmly established and regularly followed: that lower

courts “lack authority to deviate from an appellate court’s mandate.” See

Copeland, 240 So. 3d at 60; Williams, 278 So. 3d at 268 (both citing Blackhawk

Heating & Plumbing Co. v. Data Lease Fin. Corp., 328 So. 2d 825, 827 (Fla.

1975)). Because the Fifth DCA affirmed the trial court’s order on a procedural

bar that was firmly established and regularly followed, Ground One is

unexhausted and procedurally defaulted. Leppert has failed to demonstrate

either cause or prejudice to excuse her failure to exhaust and also has failed to

demonstrate that a fundamental miscarriage of justice has occurred.

However, assuming arguendo Leppert properly exhausted this claim, it

is without merit for the reasons stated by the trial court and in the state’s

answer brief on appeal in Fifth DCA case number 5D19-0274. In denying

Leppert’s motion challenging the constitutionality of the juvenile sentencing

scheme under which she was resentenced, the trial court determined the

relevant statutory provisions comply with the Supreme Court’s dictates. Ex.

QQQ at 2. The court concluded in pertinent part:

After review, the Court agrees that neither

Graham [n]or Miller requires review hearings after 15,

20, or 25 years. They only require the State to afford

juveniles some meaningful opportunity to obtain

release based on demonstrated maturity and

rehabilitation. Graham, 560 U.S. [at 75]. They also do

not require that States afford opportunities for release

at the same time for different crimes. Based on

Defendant’s current sentence, she will be eligible for a

review hearing on her First Degree Murder conviction

at 31 years of age and for her Burglary and Robbery

convictions at 36 years of age. Defendant will be

afforded a meaningful opportunity during her lifetime

for an early release, which satisfies the Eighth

Amendment. To the extent that the juvenile

resentencing statute provides for different periods of

time for review hearings, those are rationally related

to the varying levels of crimes for which a defendant

has been convicted.

Id.

In its answer brief on appeal, the state argued in pertinent part as

follows:

As recognized in Graham v. Florida, 560 U.S. 48

(2010), and Miller v. Alabama, 567 U.S. 460 (2012), the

prohibition against cruel and unusual punishment

should be graduated and proportioned to the offender

and the offense, and in the context of juvenile

offenders, that means that juvenile offenders must be

provided a meaningful opportunity for review and

courts must consider mitigating evidence of youth and

immaturity when sentencing juvenile offenders. The

statutes Appellant is challenging do just that.

Despite the confusion in the motion, juvenile

non-homicide offenders are eligible for judicial review

after 20 years, and for a second opportunity ten years

after that if they are denied release the first time

around. See § 921.1402(2)(d), Fla. Stat. Juvenile

homicide offenders who did not actually kill, intend to

kill, or attempt to kill the murder victim are eligible

for a single opportunity for judicial review after 15

years. See § 921.1402(2)(c), Fla. Stat. Finally, juvenile

homicide offenders who actually killed, intended to

kill, or attempted to kill the murder victim are eligible

for a single chance at judicial review after 25 years.

See § 921.1402(2)(b), Fla. Stat. Upon consideration of

the “gravity of the offense and the harshness of the

penalty,” Wiley v. State, 125 So. 3d 235, 240 (Fla. 4th

DCA 2013) (quoting Andrews v. State, 82 So. 3d 979,

984 (Fla. 1st DCA 2011)), the trial court correctly

denied the motion as the judicial review provisions are

not grossly disproportionate to the crime or so

excessive as to shock the judicial conscience. Cf.

Booker v. State, 514 So. 2d 1079, 1085 (Fla. 1987)

(explaining that it would be an abuse of discretion to

impose an upward departure sentence under the 1987

sentencing guidelines if the sentence was “so excessive

as to shock the judicial conscience”). See also

Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016)

(“A State may remedy a Miller violation by permitting

juvenile homicide offenders to be considered for parole,

rather than by resentencing them. Allowing those

offenders to be considered for parole ensures that

juveniles whose crimes reflected only transient

immaturity—and who have since matured—will not

be forced to serve a disproportionate sentence in

violation of the Eighth Amendment.”); Landrum v.

State, 192 So. 3d 459, 460-61 (Fla. 2016) (Landrum’s

non-mandatory life sentence without the possibility of

parole reversed and remanded for resentencing under

the 2014 juvenile sentencing legislation where

supreme court explained “that Landrum’s sentence is

unconstitutional is also compelled by the ‘precept of

justice that punishment for crime should be graduated

and proportioned to [the] offense.’ Upholding

Landrum’s sentence would violate this precept, as a

juvenile convicted of the lesser offense of second-

degree murder would receive a harsher sentence than

a juvenile convicted of first-degree murder.”).

Ex. TTT at 11-13. For the reasons stated, relief on the claim in Ground One is

due to be denied.

B. Ground Two

As Ground Two, Leppert alleges her 50-year sentences for the

nonhomicide convictions are unconstitutional under Graham as de facto life

sentences given her life expectancy and “taking into account the harshness of

prison life.” Petition at 7; Pet. Memo. at 5-9; Reply at 7. Leppert raised this

claim on appeal after she was resentenced in 2016. Ex. AAA; Ex. CCC; Ex.

DDD. In its answer brief on appeal, the state argued Leppert’s sentences were

constitutional under Graham in that they complied with Florida’s juvenile

sentencing scheme. Ex. EEE at 24-25. The state explained:

Here, of course, Appellant has been resentenced

pursuant to the new juvenile sentencing legislation.

Counts II and III [burglary and robbery], both first

degree felonies punishable by life, qualify as

convictions for “an offense that is not included in s.

782.04 but that is an offense that is a life felony or by

a term of years not exceeding life imprisonment[.]” §

775.082(3)(c). Under that provision, a juvenile who is

sentenced upon a conviction for a first degree felony

punishable by life and is sentenced to a term of more

than 20 years is entitled to a review in 20 years in

accordance with section 921.1402(2)(d). See §

775.082(3)(c), Fla. Stat. (2014). And, under section

921.1402(2)(d), Florida Statutes, (2014), a juvenile

whose sentence is not modified at the initial review

hearing is eligible for a second review hearing 10 years

after the first. Thus, Appellant will get a review of all

three sentences (not just counts II and III) where she

will have a meaningful opportunity to demonstrate

maturity and rehabilitation. As the Supreme Court

explained in Graham, 130 S. Ct. at 2034, “a State need

not guarantee eventual freedom” for a juvenile, so long

as it provides a “meaningful opportunity to

demonstrate maturity and rehabilitation[;]”

Appellant’s sentences in counts II and III imposed

under the new legislation are constitutional sentences.

See Peterson [v. State, 193 So. 3d 1034 (Fla. 5th DCA

2016)], supra. Appellant is entitled to no relief.

Id. at 25-26.

The Fifth DCA per curiam affirmed Leppert’s 50-year sentences without

a written opinion. Ex. HHH at 2. To the extent the Fifth DCA decided the claim

on the merits,17 the Court will address the claim in accordance with the

deferential standard for federal court review of state court adjudications. After

a review of the record and the applicable law, the Court concludes that the

state court’s adjudication of this claim was not contrary to clearly established

federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts

in light of the evidence presented in the state court proceedings. Thus, Leppert

is not entitled to relief on the claim in Ground Two.

17 Throughout this Order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 584 U.S. at 125.

Even if the state court’s adjudication of the claim was not entitled to

deference, Leppert’s claim is without merit. Leppert suggests her 50-year

sentences are unconstitutional under Graham. See Pet. Memo. at 8-9. In

Graham, the Supreme Court held a life without parole sentence for a

nonhomicide conviction is unconstitutional because it deprives the offender of

a future “chance to demonstrate growth and maturity.” 560 U.S. at 73, 75. But

the Court did not hold a life sentence or a de facto life sentence on a

nonhomicide conviction is categorically barred. Id. Rather, such a sentence is

constitutional so long as the defendant is afforded “some meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation.” See id. at 75. Indeed, the Court emphasized that “the Eighth

Amendment . . . does not require [a] [s]tate to release [a juvenile] offender

during [her] natural life,” nor is a state “required to guarantee eventual

freedom to a juvenile offender convicted of a nonhomicide crime.” Id. The Court

left it to the individual states “to explore the means and mechanisms for

compliance” with its holding. Id.

Florida’s mechanism for complying with Graham’s holding is set forth in

the juvenile sentencing scheme under which Leppert was resentenced. See

Horsley, 160 So. 3d at 398 (explaining the Florida Legislature, in enacting the

juvenile sentencing scheme, was responding directly to the Supreme Court’s

recognition that “youth matters in determining the appropriateness of a

lifetime of incarceration without the possibility of parole,” as acknowledged

first in Graham and later in Miller). In 2016, the resentencing court applied

Florida Statutes section 921.1401 by holding an individualized sentencing

hearing to determine whether a sentence of life in prison or a term of years

equal to life imprisonment was an appropriate sentence for Leppert, an

offender who was only 15 years old when she committed the crimes. Ex. ZZ at

4, 9-10, 12. The court made findings relevant to Leppert’s age and the

attendant circumstances in accordance with section 921.1401(2)(a)-(j) after

hearing relevant evidence. Id. at 13-14. See also Ex. AAA. That evidence

included testimony from Dr. Stephen Bloomfield, a licensed psychologist, who

testified that in 2008, the Centers for Disease Control predicted a 66.5-year life

expectancy for a 15-year-old Caucasian female, and he did not predict Leppert

would live beyond that age if imprisoned the entire time. Ex. HH at 34, 65-66.

In short, Leppert’s sentences on the burglary and robbery convictions do

not violate the Eighth Amendment as interpreted in Graham. She was

sentenced under Florida’s juvenile sentencing scheme, and her sentences will

be reviewed at the statutorily prescribed times. As Graham requires, the state

sentenced Leppert in a manner that affords her a “meaningful opportunity to

obtain [early] release based on demonstrated maturity and rehabilitation.” See

560 U.S. at 75. Accordingly, she is not entitled to relief on the claim in Ground

Two.

C. Ground Three

As Ground Three, Leppert alleges her pretrial counsel deprived her of

due process under the Fifth Amendment and the effective assistance of counsel

under the Sixth Amendment by permitting authorities to question her when

she was detained in Texas without a parent or an attorney present even though

she was only 15 years old. Petition at 8; Pet. Memo. at 9. Leppert raised this

claim in her counseled Rule 3.850 Motion. Ex. FF at 4. The postconviction court

held an evidentiary hearing at which Leppert’s pretrial counsel, Teresa Sopp,

testified, as did Leppert’s mother. Ex. HH at 3.

In denying Leppert relief on this claim, the postconviction court

accurately set forth the Strickland standard and found as follows:

Collateral Counsel for Defendant argues that

objectively, it was clear that Defendant would be a

suspect in the investigation of the victim’s death

because she was found in possession of the victim’s

vehicle; and subjectively, Sopp should have

understood that detectives were holding Defendant

there (in El Paso) or that she was in custody there on

probable cause for a criminal offense. Collateral

Counsel for Defendant argues that Sopp made no

effort to travel to Texas to accompany Defendant

during the interview, did not advise Defendant’s

Mother to retain local Counsel in El Paso, and did not

seek to have a Public Defender appointed in Texas.

Further [sic] Sopp made no effort to engage in any plea

bargain negotiations with prosecutors in exchange for

Sopp granting investigators access to Defendant.

However, the testimony showed that after

Defendant’s mother retained Teresa Sopp in Florida,

Sopp spoke to Defendant before allowing her to speak

to detectives. Defendant told Ms. Sopp that she was

unknowing of the murder, that Toby Lowry had picked

her up in the victim’s truck, and that she did not know

where he had gotten it. Based on that version of the

facts, which the Defendant later admitted was a lie,

Sopp gave consent for an interview. Sopp testified that

she signed an authorization form provided by the

juvenile authorities in El Paso, consenting to an

interview by a Putnam County Detective regarding

“only her [Morgan’s] role as a victim of crime. No

statements will be used in any prosecution against

Morgan.” Unknown to Sopp, Defendant twice waived

Sopp’s further involvement after being advised of her

Miranda [sic] rights. Defendant specifically

acknowledged to the Putnam County Detective that

she had spoken with Ms. Sopp who “let me know not

to tell you anything.” As the State points out: to waive

the presence and advice of an attorney is the right of

any criminal defendant. An attorney cannot exercise

those particular rights for a client. The waiver was

found to be valid by the trial judge after testimony and

arguments on Defendant’s Motions to Suppress and

Motion to Enforce Immunity Agreement.

Under the circumstances, and noting Sopp’s

brief involvement, neither prong of Strickland has

been met.

Ex. II at 2-4 (internal record citations omitted). The Fifth DCA per curiam

affirmed the denial of relief without a written opinion. Ex. NN.

To the extent the Fifth DCA decided the claim on the merits, the Court

will address the claim in accordance with the deferential standard for federal

court review of state court adjudications. After a review of the record and the

applicable law, the Court concludes that the state court’s adjudication of this

claim was not contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and was not based

on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, Leppert is not entitled to relief

on the basis of this ineffectiveness claim.

Even if the appellate court’s adjudication of the claim was not entitled to

deference, Leppert’s ineffectiveness claim fails. At the evidentiary hearing on

Leppert’s postconviction motions, Ms. Sopp explained that Leppert’s mother,

Geraldine (Gerry) Leppert, contacted her on Sunday May 4, 2008, explaining

that her daughter had been reported missing and was found in Texas but was

being held there by authorities. Ex. HH at 116-18. According to Ms. Sopp,

Gerry Leppert wanted Ms. Sopp’s assistance “to find out what the status was

and why [authorities] were holding her daughter.” Id. at 117. Ms. Sopp

contacted local authorities and learned that Leppert “was taken into custody

with a person who was suspected of a homicide . . . .” Id. She refused to permit

authorities to speak with Leppert until she herself had spoken with her client.

Id. at 126.

Ms. Sopp called the juvenile detention center where Leppert was being

held and eventually was able to speak with Leppert, who denied any

involvement in the homicide, saying she had not been with Lowry at the time.

Id. at 117. Thereafter, believing Leppert was a “missing person or a victim or

a witness,” not a suspect in a homicide investigation, Ms. Sopp permitted

authorities to speak with Leppert. Id. at 117-18.18 However, before granting

detectives access to Leppert, staff at the detention center asked Ms. Sopp to

execute a “Legal Consent Form,” which she did. Id. at 118. See also Ex. G. On

the form, Ms. Sopp wrote that she was giving consent for law enforcement

officials to “meet with [her] client, Morgan Lep[p]ert . . . only [in] her role as a

victim of [a] crime [and that] [n]o statements [made by Leppert would] be used

in any prosecution against [her].” Ex. G. See also Ex. HH at 119.

18 An investigator with the Putnam County State Attorney’s Office had already

interviewed Leppert once, on May 3, 2008, the day Leppert initially was detained and

before Ms. Sopp was retained. Ex. K at 537-38. During that first interview, Leppert

told the investigator essentially what she told Ms. Sopp—that Lowry picked her up

in the victim’s truck when what would have been after the murder, and she did not

know where Lowry got the truck. Id. at 561, 567. The investigator who interviewed

Leppert on May 3, 2008, believed she was a runaway, not a murder suspect. Id. at

537. That same investigator participated in the May 5, 2008 interview, conducted

primarily by a detective with the Putnam County Sheriff’s Office, and observed by a

detective with the El Paso Police Department. Id. at 515-16, 666-67, 678.

Ms. Sopp testified that she believed the detectives who interviewed

Leppert were apprised of the consent form, which she faxed to the detention

center, because it was her understanding the detectives were “inside the

detention center” waiting for clearance from her to gain access to Leppert. Ex.

HH at 120. Ms. Sopp conceded that, in hindsight, she “probably should have

waited and found out that there was a public defender . . . already appointed

[for Leppert in Texas],” but she believed she had reached a verbal “immunity

agreement” with the Putnam County State Attorney’s Office that Leppert was

to be questioned solely as a victim or witness, not a suspect. Id. at 120-21,

128.19

Although Ms. Sopp expressed at the evidentiary hearing that perhaps,

in retrospect, she should have made a different decision in the moment, the

reasonableness of her advice and decision-making must be assessed without

“the distorting effects of hindsight.” See Strickland, 466 U.S. at 689. Instead,

they must be assessed from her “perspective at the time.” Id. As Strickland

instructs, in assessing whether an attorney’s performance was reasonable, a

court must consider all the circumstances, including the information the

attorney received from the client. Id. at 688-90.

19 The trial court denied Leppert’s pretrial motions to suppress and to enforce

an immunity agreement. Ex. J.

The reasonableness of counsel’s actions may be

determined or substantially influenced by the

defendant’s own statements or actions. Counsel’s

actions are usually based, quite properly, on informed

strategic choices made by the defendant and on

information supplied by the defendant. In particular,

what investigation decisions are reasonable depends

critically on such information.

Id. at 691. See also Newland v. Hall, 527 F.3d 1162, 1202 (11th Cir. 2008) (“In

evaluating the reasonableness of a defense attorney’s [strategy], we weigh

heavily the information provided by the defendant.”).

Leppert told Ms. Sopp information that led Ms. Sopp to believe Leppert

had nothing to do with the murder but rather was a witness or a victim of

Lowry’s. Sopp made decisions based on that important information. Given

what Ms. Sopp was told by her client, by Gerry Leppert, and by

prosecuting/investigating officials, she cannot be said to have been deficient

under the Strickland standard for permitting Leppert to be interviewed

without an attorney or a parent present on May 5, 2008. Accordingly, Leppert

is not entitled to relief on the claim in Ground Three.

D. Ground Four

As Ground Four, Leppert alleges trial counsel was ineffective when he

failed to introduce evidence supporting her sole defense theory: infancy.

Petition at 10; Pet. Memo. at 16. According to Leppert, both Dr. Bloomfield and

Leppert’s mother “would have testified [to] her infancy,” but counsel chose not

to call them at trial, which resulted in the trial court denying counsel’s request

for a special jury instruction proposed as follows in pertinent part:

[I]f you determine that the defendant because of her

age or maturity lacked the mental ability to form the

specific intent to commit [the] crimes [with which she

is charged], you must find the defendant not guilty of

any offense containing the specific intent element.

Pet. Memo. at 16-18 (capitalization omitted). See also Ex. K at 842. Leppert

raised this claim in her counseled Rule 3.850 Motion. Ex. FF at 9. In denying

relief on the claim, the postconviction court found neither prong of Strickland

established:

At the [evidentiary] hearing, Trial Counsel

testified that he consulted with Dr. Bloomfield on the

infancy matter about a month before trial and made

the determination that Dr. Bloomfield’s testimony

simply would not be helpful. Trial Counsel elicited all

available testimony from other sources throughout the

trial in an attempt to get that instruction, to no avail.

Trial Counsel was able to emphasize to the jury

Defendant’s lack of maturity, through the cross

examination of witnesses and by playing at least two

hours of videotapes of Defendant. The Court finds it

unlikely that a jury instruction on infancy would have

altered the outcome of the trial. A review of the record

shows that neither prong of Strickland has been met

here.

Ex. II at 4. The Fifth DCA per curiam affirmed the denial of relief without a

written opinion. Ex. NN.