Jean-Gilles v. Secretary, Department of Corrections (Manatee County)

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EXCELLENT JEAN-GILLES,

Petitioner,

v. Case No. 8:22-cv-674-CEH-TGW

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

Petitioner, a Florida prisoner, initiated this action by filing a petition for a writ of

habeas corpus under 28 U.S.C. § 2254 (Doc. 1). Respondent filed a response opposing the

petition (Doc. 10) and exhibits (Doc. 10-2), to which Petitioner replied (Doc. 11). Upon

consideration, the petition will be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

Petitioner was charged by Amended Information with three counts of sexual battery

by a person eighteen years of age or older upon a child less than 12 years of age, and one

count of lewd or lascivious molestation by a person 18 years of age or older upon a child less

than 12 years of age (Doc. 10-2, Ex. 1).1 Petitioner pleaded no contest to three reduced counts

of attempted sexual battery by a person 18 years or older upon a child less than 12 years old,

and one count of lewd and lascivious molestation by a person 18 years or older upon a child

1 For purposes of reference to pleadings and exhibits, the Court will cite the document page

numbers assigned by the Court’s electronic docketing system.

on each count (Id., Ex. 9 at 51).

Petitioner filed a pro se Motion to Withdraw Plea (Id., Ex. 10). The motion was stricken

as facially insufficient, and the trial court appointed conflict-free counsel to file an amended

motion to withdraw (Id., Ex. 11). Although conflict-free counsel filed a Notice of Appearance

(id., Ex. 12), he filed no amended motion to withdraw plea (Id., Ex. 13). Petitioner appealed,

but his convictions and sentences were affirmed. Jean-Gilles v. State, 291 So. 3d 571 (Fla. 2d

DCA 2020).

Petitioner filed a motion for post-conviction relief under Rule 3.850, Fla.R.Crim.P.,

asserting several claims of ineffective assistance of counsel (Id., Ex. 17). The Rule 3.850

motion was summarily denied (id., Ex. 18), and the denial was affirmed on appeal. Jean-Gilles

v. State, 331 So. 3d 132 (Fla. 2d DCA 2021).

Petitioner filed a motion to correct an illegal sentence under Rule 3.800(a),

Fla.R.Crim.P., claiming a double jeopardy violation (Id., Ex. 21). The double jeopardy claim

was denied, but the court corrected the sentence on Count IV to reflect a mandatory

minimum of 25 years in prison (Id., Ex. 22). The appellate court affirmed. Jean-Gilles v. State,

331 So. 3d 850 (Fla. 2d DCA 2021).

Petitioner filed his federal habeas petition in this Court (Doc. 1) in which he alleges

two claims for relief.

II. GOVERNING LEGAL PRINCIPLES

Because Petitioner filed his petition after April 24, 1996, this case is governed by 28

U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996

889-90 (11th Cir. 2003). The AEDPA “establishes a more deferential standard of review of

state habeas judgments,” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to

“prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to

the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002); see also Woodford v.

Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court’s evaluation of

state-court rulings is highly deferential and that state-court decisions must be given the benefit

of the doubt).

A. Standard of Review Under the AEDPA

Under the AEDPA, habeas relief may not be granted regarding a claim adjudicated

on the merits in state court unless the adjudication of the claim:

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

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

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

the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The phrase “clearly established Federal law,” encompasses only the

holdings of the United States Supreme Court “as of the time of the relevant state-court

decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

“[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions;

the ‘contrary to’ and ‘unreasonable application’ clauses articulate independent considerations

a federal court must consider.” Maharaj v. Secretary for Dep’t. of Corr., 432 F.3d 1292, 1308

(11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of

Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

court arrives at a conclusion opposite to that reached by [the United States

Supreme Court] on a question of law or if the state court decides a case

differently than [the United States Supreme Court] has on a set of materially

indistinguishable facts. Under the ‘unreasonable application’ clause, a federal

habeas court may grant the writ if the state court identifies the correct governing

legal principle from [the United States Supreme Court’s] decisions but

unreasonably applies that principle to the facts of the prisoner’s case.

If the federal court concludes that the state court applied federal law incorrectly, habeas relief

is appropriate only if that application was “objectively unreasonable.” Id.

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the

state court’s decision “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” A determination of a factual issue made

by a state court, however, shall be presumed correct, and the habeas petitioner has the burden

of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244

F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Exhaustion and Procedural Default

The writ of habeas corpus cannot be granted unless the petitioner has exhausted all

available state court remedies. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Lucas v. Sec’y,

Dep’t of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012) (citing 28 U.S.C. § 2254(b), (c)).

Exhausting state remedies requires a petitioner to “fairly present” his claims in each

appropriate state court “thereby alerting that court to the federal nature of the claim.” Baldwin

v. Reese, 541 U.S. 27, 29 (2004) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) and

Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). Moreover, to properly exhaust a

claim, “the [petitioner] must have presented his claims in state court in a procedurally correct

manner.” Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995).

barred from review if the claim was not properly raised in state court and “the court to which

the petitioner would be required to present [the] claims in order to meet the exhaustion

requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1.

To avoid a procedural default, a petitioner must show “either cause for and actual prejudice

from the default or fundamental miscarriage of justice from applying the default.” Lucas, 682

F.3d at 1353; Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

C. Ineffective Assistance of Counsel

Petitioner alleges ineffective assistance of counsel. Ineffective-assistance-of-counsel

claims are analyzed under the test established in Strickland v. Washington, 466 U.S. 668 (1984).

Strickland requires showing deficient performance by counsel and resulting prejudice. Id. at

687. Deficient performance is established if, “in light of all the circumstances, the identified

acts or omissions [of counsel] were outside the wide range of professionally competent

assistance.” Id. at 690. However, “counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment.” Id.

Petitioner must show that counsel’s alleged error prejudiced the defense, because “[a]n

error by counsel, even if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. To

demonstrate prejudice, Petitioner must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

GROUND ONE: PETITIONER WAS DENIED HIS RIGHTS TO DUE PROCESS

AND EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED HIM UNDER

THE 6TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION WHEN

COUNSEL FAILED TO FILE AN AMENDED MOTION TO WITHDRAW PLEA

(Doc. 1 at 5-6)

After Petitioner pleaded no-contest and was sentenced, he filed a pro se motion to

withdraw his plea in which he alleged that: (1) due to his limited understanding of English,

he believed he was agreeing to a 30-month sentence rather than a 30-year sentence when he

signed the plea agreement; and (2) his attorney “made” him sign the plea agreement (Doc.

10-2, Ex. 10). The trial court struck the motion as facially insufficient because Petitioner

failed to allege sufficient facts in support of the claims (Id., Ex. 11). The trial court also

appointed conflict-free counsel and ordered conflict-free counsel to confer with Petitioner and

file an amended motion to withdraw plea (Id., Ex. 11 at 60). But conflict-free counsel never

filed an amended motion (Id., Ex. 13). Petitioner contends that he was denied due process

and effective assistance of counsel when conflict-free counsel failed to file an amended

motion.

In Claim One of Petitioner’s Rule 3.850 motion, he asserted that his plea was

involuntary. He alleged that during a hearing on January 18, 2019, the Court informed him

the State would offer a prison sentence “somewhere in the range of twenty-five to thirty

years.” (Doc. 10-2, Ex. 17 at 90-92). He also alleged that both his attorney and interpreter

“improperly” informed him the State was offering “any prison term in between twenty-five

and thirty years” and told him that if he accepted the State’s offer, “he would not do that

much time in prison.” (Id.). The court allowed a two-hour break during which Petitioner

he would spend in prison (Id.). Because “an affirmative answer was never given,” Petitioner

rejected the offer (Id.).

During the next three days, counsel and the interpreter told Petitioner that he “must”

take the State’s offer because he would not win at trial since the evidence “was to[o] much,”

and the judge was allowing testimony from two children who were prior victims of sexual

assault by Petitioner (Id.). On January 22, 2019, Petitioner returned to court after counsel

and the interpreter told him that “they would be able to get him a little time in prison, but

not much.” (Id.). Because he was “improperly informed and misled by his Interpreter and

Attorney concerning the actual sentence that he would be pleading no-contest to[,]” and

because he “was having problems understanding the Court,” Petitioner “moved forward and

accepted an overall plea of thirty years in prison followed by lifetime sexual offender

probation.” (Id.).

When Petitioner returned to jail, he told another detainee that “he had just signed a

plea agreement for a little bit of time in prison[,]” and he “showed this man the papers.” (Id.).

The other detainee told Petitioner that “he did not sign for a little bit of time, but [Petitioner

would] die in prison . . . [b]ecause [Petitioner would] be eighty-six years old once his prison

sentence was finished . . . .” (Id.). Petitioner therefore filed his pro se Motion to Withdraw

Plea on January 25, 2019. (Id.).

In Claim Four of Petitioner’s Rule 3.850 motion, he asserted that conflict-free counsel

was ineffective in failing to file an amended motion to withdraw his plea as the court had

instructed counsel to do (Doc. 10-2, Ex. 17 at 95).

Defendant alleges that he informed counsel at the conclusion of the

January 18, 2019, child hearsay/Williams Rule hearing, that he wanted to reject

the State’s plea offer and proceed to trial, but counsel repeatedly told him that

he could not win at trial because the evidence was overwhelming, particularly

after the trial court ruled that the testimony of two Williams Rule witnesses

would be admissible. He claims this was unduly coercive. Defendant also

contends that counsel told him she would ‘be able to get him a little time in

prison, but not much,” if he agreed to enter a plea. Defendant says he was

“having problems understanding the [trial judge]” during the plea hearing, and

he entered his plea in reliance on what counsel told him. He thought he was

receiving a 30-month sentence, not a 30-year sentence. He argues his

misunderstanding was compounded by the trial court’s observation at the

January 18, 2019, hearing, that Defendant was 65 years old, “[s]o any sentence

of any significant length of time w[ould] effectively result in a life sentence ....”

He cites, in support, to the fact that he immediately filed a motion to withdraw

his plea upon learning that he had, in fact, received a 30-year sentence.

The State responds that Defendant’s allegation of coercion is legally

insufficient because Defendant fails to set forth the kind of facts that would be

impermissibly coercive, such as counsel’s threat to withdraw from the case if

Defendant refused to enter a guilty plea, or Counsel’s misadvice that Defendant

would receive only 30 months in prison. The State also asserts that the record

refutes the claim, because even if counsel did tell Defendant he could not win

at trial, this would have been pursuant to counsel’s professional responsibility

to advise Defendant of the strength of the State’s case, under Fla. R. Crim. P.

3.171(c), and the case against Defendant was exceedingly strong, with evidence

including a positive DNA match to Defendant from vaginal and anal swabs

taken from K.D.; K.D.’s disclosure to her mother, Monalia St. Louis; K.D.’s

disclosure during an interview with Child Protection Team Case Coordinator

Kimberly Griffin; and the testimony of two Williams rule witnesses, J.E. and

S.E. The record also shows that Defendant stated at the plea hearing that he

understood the interpreter, and the word “year” was said in court multiple times

in reference to his sentence; whereas, at no time was the word “month” used;

so that it is not credible that Defendant thought that he was being sentenced to

a term of months.

Having reviewed the State’s discovery and the deposition testimonies of

State witnesses, the Court finds the State’s arguments to be persuasive. If

counsel did advise Defendant that he could not win at trial, this advice would

have fallen within the parameters of providing an honest assessment of the

strength of the State’s case. See Fla. R. Crim. P. 3.171(c); Dean v. State, 580 So.

2d 808, 810 (Fla. 3d DCA 1991); see, e.g., Thomas v. State, 172 So. 2d 245, 245-

“airtight case” against defendant, including 12 witnesses, some of whom were

defendant’s children, was insufficient to show coerced plea). It also would have

fulfilled counsel’s professional duty to provide Defendant with an assessment of

whether he could realistically achieve his objectives in the case. See R. Reg. Fla.

Bar 4-1.4.

The medical examination report prepared by Dr. Jerome Isaac indicates

that Isaac collected rape kit samples from K.D. on September 18, 2015. The

FDLE laboratory report, prepared by FDLE analyst John Robida, dated March

22, 2016, indicates that the samples in the rape kit were compared to buccal

swabs taken from K.D. and Defendant, and that the vaginal and anal swabs

from K.D. had foreign DNA matching Defendant’s DNA profile within a

reasonable degree of scientific certainty. Robida discussed his process in more

detail during his deposition testimony, and he gave the statistical possibility of

someone having Defendant’s DNA profile at more than one in 700 billion.

The report of CPT Case Coordinator Kimberly Griffin indicates that she

interviewed 9-year-old K.D. on the same day as the medical examination. K.D.

said Defendant took her to the bedroom, “grabbed her legs, pulled down her

underwear and licked her private part (vagina)” and then “put his private part

into her private part.” Defendant also touched her nipples and she saw “a clear

liquid” come from his “private part” onto the sheets. K.D. said that Defendant

“raped” her more than one time, and she remembered once when he came into

the bathroom with her and put “his private part into her private part” and

squeezed her nipples. Griffin gave testimony about the disclosure at the child

hearsay hearing, conducted January 18, 2019, and the trial court found that

K.D.’s disclosure to Griffin was admissible child hearsay testimony, after a

hearing on the matter, conducted January 18, 2019.

Ms. St. Louis testified in her deposition that she returned home from

work one day and found K.D. looking sad, refusing food, and saying she had

stomach cramps and pain. St. Louis also noticed K.D. was “walking funny.”

Defendant was in the room, and minutes before K.D. made her disclosures,

Defendant said, “I think something gonna happen to me” and “don’t listen to

[K.D.].” K.D. then told St. Louis that Defendant touched her and put his

“privacy” on her “privacy” and “squeeze[ed] [her] boob” Defendant asked St.

Louis not to call or say anything to anyone. K.D. told St. Louis later that

Defendant had done it to her before on three occasions, and the first time was

when she was 6 years old; she described how Defendant wiped the “water” that

came from his “private” onto the mattress. The trial court also found Ms. St.

Louis’ testimony about K.D.’s disclosures to be admissible child hearsay

testimony.

were permitted by the trial court to give limited testimony, as similar

fact/Williams rule witnesses, that Defendant touched their breasts and/or

vagina, or the clothing over those areas.

Counsel averred at the plea hearing that she reviewed with Defendant

“the entirety of the State’s evidence multiple times on various occasions.” The

trial court granted a break in the proceedings so that Defendant could consider

the State’s plea offer in light of counsel’s previously [sic] discussions with him.

Based on the State’s strong evidence of Defendant’s guilt, any advice by counsel

given at the plea hearing, or prior to that time, that Defendant could not win at

trial, would have been entirely appropriate.

The transcript of the plea and sentencing hearing also supports finding

that Defendant understood that he was being sentenced to 30 years, and not 30

months. Defendant acknowledged that his attorney, through the interpreter,

had gone through the Acknowledgment and Waiver of Right plea form with

him, line by line, and that he understood it. The form stated that he was agreeing

to an overall 30-year sentence with a 25-year minimum mandatory on Count 4.

Counsel also set forth the terms of the agreement in open court, including the

requirement for concurrent 30-year sentences, and Defendant also said he

understood them.

From Defendant’s Reply, it is apparent that Defendant is now suggesting

that he was incompetent at the time of the plea hearing, so that his responses

during the plea colloquy should be disregarded. The trial judge took the careful

steps necessary throughout this case to ensure that Defendant was appropriately

treated during the times of his incompetency, and the court accepted his plea

only after the determination that he was competent, based on the forensic

evaluation report of James Pitman, Psy. D., and Theresa Ascheman Joes, Psy.

D.

Finally, the fact that Defendant initially rejected the plea offer a week

before accepting it, and later had remorse and sought to withdraw his plea after

being sentenced, is unremarkable. He was certainly faced with unpleasant

choices and no doubt wished for a better result; however, Defendant ultimately

chose the sentence that gave him the possibility of spending some years outside

of prison, which his conviction after trial would assuredly have foreclosed. The

fact that he was forced to make this choice, and did so on counsel’s advice, did

not render counsel’s performance deficient or Defendant’s plea involuntary. See,

generally, Costello v. State, 260 So. 2d 198, 201 (Fla. 1972) (disgruntlement over

sentence is not cause to find plea involuntary).

Ground 1 shall, therefore, be denied.

Defendant alleges that appointed counsel from the Office of Regional

Counsel and Criminal Conflict (“ORC”) was ineffective because counsel failed

to assist him in filing an amended motion to withdraw plea after the Court

appointed ORC for this purpose in its Order filed February 14, 2019. Apparently

[sic] Defendant alleges that, had the amended motion been filed, it would have

asserted that his plea was involuntary for the reasons set forth in Ground 1 of

his postconviction motion.

Counsel is not obliged to file an amended motion where there are no

potentially viable grounds to support it. Cf. Gonzales v. State, 993 So. 2d 55, 57-

58 (Fla. 5th DCA 2008) (finding trial court did not err in refusing to discharge

counsel appointed to assist defendant with amended motion to withdraw plea

who testified that he investigated potential grounds and found no good faith

basis for filing amended motion). The failure to file a motion to withdraw plea

is deemed deficient only if it is determined that the defendant’s plea was, in fact,

involuntary. See Lane v. State, 839 So. 2d 854, 855 (Fla. 1st DCA 2003).

Because the Court has resolved Ground 1, and found it to be without

merit, Defendant cannot succeed on this claim. While the Court does not

condone the actions of ORC in failing to file either a notice indicating that it did

not intend to file an amended motion, or a request to withdraw, so that

Defendant could prepare a pro se amended motion, the Court finds that ORC’s

failure to file an amended motion in this case did not prejudice Defendant. Had

such an amended motion been filed citing, as cause, the allegations enumerated

in Ground 1 of Defendant’s postconviction motion, it would have been denied.

(Id., Ex. 18 at 106-10, 116-17) (footnotes omitted). The state appellate court affirmed without

a written opinion. Jean-Gilles v. State, 331 So. 3d 132 (Fla. 2d DCA 2021) (table).

I. Denial of Due Process Claim

To the extent that Petitioner contends he was denied due process of law when conflict-

free counsel failed to file an amended motion to withdraw his plea, Respondent argues the

claim is procedurally barred from review (Doc. 10 at 20-22). The Court agrees. A review of

the record reveals Petitioner failed to raise a violation of due process claim in either his direct

appeal proceedings or his Rule 3.850 post-conviction proceedings. He cannot return to the

state courts to litigate this claim because it would be procedurally barred under state

3.850(b), Fla.R.Crim.P. (time-bar). Because Petitioner can no longer present the claim in the

state courts, it is procedurally defaulted for purposes of federal habeas. Coleman, 501 U.S. at

735 n.1; Henderson, 353 F.3d at 891. And Petitioner fails to allege let alone establish cause

and prejudice or a fundamental miscarriage of justice to excuse the procedural default of this

claim. Therefore, the due process claim is procedurally barred from habeas review.

II. Ineffective Assistance of Counsel Claim

To the extent Petitioner contends conflict-free counsel was ineffective in failing to file

an amended motion to withdraw his plea, the state post-conviction court’s denial of the claim

was reasonable. Under Strickland, because “[a]n error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the

error had no effect on the judgment,” Petitioner must establish that counsel’s alleged deficient

performance resulted in prejudice. Strickland, 466 U.S. at 691–92. To meet this burden,

Petitioner must show a reasonable probability that, but for conflict-free counsel’s

unprofessional errors, the trial court would have granted an amended motion to withdraw

the plea. See, e.g., Bargman v. Crosby, 2006 WL 2425422, at *6 (M.D. Fla. Aug. 21, 2006) (in

a claim contending counsel was ineffective in failing to withdraw defendant’s plea, “the

prejudice prong of Strickland requires [petitioner] to show that a motion to withdraw his plea

would have been granted.”); Johnson v. Jones, 2018 WL 1722532, at *7 (N.D. Fla. Mar. 23,

2018), report and recommendation adopted, 2018 WL 1721931 (N.D. Fla. Apr. 9, 2018) (where

a state post-conviction court reasonably concludes that even if a motion to withdraw plea

after sentencing had been filed, it had no reasonable probability of success, “the prejudice

undermine confidence in the outcome. Strickland, 466 U.S. at 694.

The state post-conviction court rejected Petitioner’s claim that conflict-free counsel

was ineffective in failing to file an amended motion to withdraw Petitioner’s plea, finding

Petitioner was not prejudiced because any amended motion to withdraw on the grounds that

Petitioner’s plea was involuntary or coerced would have been denied (Doc. 10-2, Ex. 18 at

116-17). To obtain relief on this claim, Petitioner must establish that the state court

unreasonably applied Strickland or unreasonably determined the facts in denying this claim

in his Rule 3.850 motion. Petitioner fails to do so.

When Petitioner entered his no-contest plea, the state court complied with the

requirements for determining the voluntariness of Petitioner’s plea under Rule 3.172(c),

Florida Rules of Criminal Procedure (Doc. 10-2, Ex. 9). And the record affirmatively

demonstrates that Petitioner’s plea was knowingly and intelligently entered.

The change of plea colloquy shows that the trial court informed Petitioner that if he

proceeded to trial and was convicted on Counts 1, 2, or 3, he was facing a mandatory

minimum sentence of life in prison, and that Count 4 carried a mandatory minimum sentence

of 25 years in prison (Id., Ex. 9 at 38-39). Petitioner affirmed that he understood the penalties

he faced were he to proceed to trial and be convicted. (Id., Ex. 9 at 39-40). The court then

paused the proceeding to allow Petitioner to meet with defense counsel and the prosecutor

(Id., Ex. 9 at 40-42). When the proceeding recommenced, defense counsel announced the

parties had reached an agreement in which Petitioner would plead no contest to the lesser

offense of attempted sexual battery for Counts 1, 2, and 3, and plead no contest to Count 4

(concurrent) and Count 4 included a mandatory minimum sentence of 25 years followed by

lifetime sex-offender probation (Id.). Petitioner verified that he understood the sentence he

was facing and that no one had threatened or coerced him into accepting the plea agreement

or promised him anything to sign the agreement (Id., Ex. 9 at 45-46).

The Acknowledgment and Waiver of Rights form Petitioner signed during the break

in the proceedings expressly stated Petitioner understood his sentence would be 30 years in

prison with a 25-year mandatory minimum followed by life on probation (Id., Ex. 8). By

signing the form, Petitioner also verified that accepting the plea was his decision, and no one

had forced or threatened him or promised him anything to enter the plea (Id., Ex. 8 at ¶ 7).

Considering the written plea agreement and the plea colloquy, it would not have been

reasonable for conflict-free counsel to file an amended motion to withdraw the plea, because

there was no support under Florida law for such a motion.2

In Florida, a defendant must establish good cause for withdrawal of a guilty plea.

Castello v. State, 260 So.2d 198 (Fla.1982); Adler v. State, 382 So.2d 1298 (Fla. 3d DCA 1980).

A defendant has the burden of establishing grounds to withdraw a guilty plea and “mere

naked allegations,” unsupported by any proof, will “never constitute a basis for withdrawal

of a plea.” Brown v. State, 428 So.2d 369, 371 (Fla. 5th DCA 1983).

2 A defendant who seeks to withdraw a plea of guilty or no contest after sentencing must show

manifest injustice in addition to showing one of the grounds set forth in Florida Rule of Appellate

Procedure 9.140(b), including a lack of subject matter jurisdiction, a violation of the plea agreement,

or an involuntary plea. See Rule 3.170, Fla.R.Crim.P.; Campbell v. State, 125 So. 3d 733, 736 (Fla.

2013).

agreement, Petitioner’s sworn testimony during the plea hearing refutes his claim. See

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (Although a defendant’s statements during the

plea colloquy are not insurmountable, “the representations of the defendant [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. Solemn declarations in open court carry a

strong presumption of verity.”). During the plea colloquy, Petitioner acknowledged, under

oath, that counsel read every word of the plea agreement to him, that he understood the plea

agreement, and that everything in the plea agreement was true and correct (Doc. 10-2, Ex. 9

at 45). He acknowledged that nobody had forced, threatened, or coerced him into entering

his plea (Id., Ex. 9 at 45). He also acknowledged that he was satisfied with the services of his

attorney (Id., Ex. 9 at 47). Finally, he said he understood that the decision whether to go to

trial was “entirely” his (Id., Ex. 9 at 39-40). Petitioner has not rebutted the strong presumption

that these statements were true. See United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994)

(“There is a strong presumption that the statements made during the [plea] colloquy are

true.”) (citation omitted).

To the extent that Petitioner contends he was in some way misinformed or mislead by

counsel to believe he would be sentenced to only 30 months in prison, and that the knowing

and voluntary nature of his guilty plea was undermined by counsel’s advice, the record belies

any such contention. Initially, Petitioner has never alleged that either counsel or the

interpreter told him he would be sentenced to, or only serve, 30 months in prison. Rather, in

his pro se Motion to Withdraw Plea, he stated, “[I] thought [I] was signing 30 months . . . .”

and the interpreter informed him on January 19, 2019, that the State was offering a prison

sentence “between 25 and 30 years,” counsel and the interpreter informed him that “he would

not do that much time in prison.” (Id., Ex. 17 at 90). He also alleged that before he returned

to court on January 22, 2019, counsel and the interpreter told him that “they would be able

to get him a little time in prison, but not much.” (Id., Ex. 17 at 91).

During the change of plea colloquy on January 22, 2019, defense counsel explained

all the details of the plea agreement, including that Petitioner’s sentence would be “30 years

in the Department of Corrections.” (Doc. 10-2, Ex. 9 at 43). Petitioner confirmed that he

understood the details of the plea agreement and the potential sentence (Id., Ex. 9 at 45). And

Petitioner executed a change of plea form which comprehensively covered the consequences

of his plea, including a sentence of 30 years (Id., Ex. 8). Thus, the record conclusively refutes

Petitioner’s contention that he based his plea on counsel’s advice that he would receive 30

months in prison. And even if before the change of plea hearing counsel had told Petitioner

that he would not serve 30 years in prison or that he would get “a little time in prison, but not

much,” that did not render Petitioner’s plea involuntary, especially when both the court and

counsel informed Petitioner during the hearing that he would receive a 30-year sentence. See

Langford v. United States, 2009 WL 6467043, at *6 (S.D. Ala. Oct. 23, 2009), report and

recommendation adopted, 2010 WL 1949480 (S.D. Ala. May 12, 2010) (“[A] lengthier than

anticipated sentence does not, without more, render a guilty plea involuntary.”); U.S. v.

Cardenas, 230 Fed. App’x. 933, 936 (11th Cir.2007) (finding unpersuasive defendant’s

argument that his guilty plea was involuntary because his lawyer advised him that he would

defendant that he could receive the maximum sentence allowed by law, and defendant told

the court that he was not relying on promises made to him outside of his plea agreement, no

one told him exactly what sentence he would receive, and he would plead guilty even though

he did not know what sentence he would receive because of his plea). If Petitioner believed

that he would receive a 30-month sentence, it was incumbent upon him to speak up during

the plea colloquy and his failure to do so at that time would have estopped him “from later

arguing a position contrary to statements made in open court or in writing.” See Simmons v.

State, 611 So.2d 1250, 1253 (Fla. 2d DCA 1992); Resta v. State, 698 So.2d 378, 379 (Fla. 3d

DCA 1997).

Petitioner has not established that conflict-free counsel’s failure to file an amended

motion to withdraw Petitioner’s no-contest plea was deficient. Given Petitioner’s sworn

answers made during the change of plea hearing and his certification on the

Acknowledgment and Waiver of Rights form, no reasonable attorney would have pursued a

motion to withdraw Petitioner’s no-contest plea. Conflict-free counsel could not have been

ineffective in failing to file an amended motion with no merit.

In considering whether counsel’s performance was deficient, the inquiry focuses on

“whether counsel’s assistance was reasonable considering all the circumstances.” Strickland,

466 U.S. at 688. Here, conflict-free counsel’s performance has not been shown to have been

deficient. Nor has Petitioner demonstrated prejudice from conflict-free counsel’s

performance. To satisfy the prejudice prong of Strickland, Petitioner must show that the state

court would have granted a motion to withdraw his plea. As discussed, Petitioner presents

no factual or legal support to demonstrate that he would have prevailed on such a motion

and the record conclusively establishes that such a motion would have been denied. Absent

a demonstration of prejudice, Petitioner cannot prevail on this claim of ineffective assistance

of counsel. See Strickland, 466 U.S. at 697. Consequently, Petitioner fails to meet his burden

of proving that the state court’s denial of this claim was an unreasonable application of

controlling Supreme Court precedent or based on an unreasonable determination of the facts.

Ground One therefore warrants no relief.

Accordingly:

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

Court shall enter judgment against Petitioner and close this case.

2. This Court should grant an application for a Certificate of Appealability (COA) only

if Petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). He cannot make this showing. Accordingly, a COA is DENIED. And because

Petitioner is not entitled to a COA, he may not proceed on appeal in forma pauperis.

ORDERED in Tampa, Florida on October 29, 2024.

Chak tries Ochudtandx: A gl well

Charlene Edwards Honeywell

United States District Judge

Copies to: Petitioner, pro se

Counsel of Record

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