Smith v. Department of Corrections, State of Florida

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No: 23-cv-80657-Middlebrooks/Matthewman

JERMAINE SMITH,

Petitioner, FILED BY SW D.c.

v.

Aug 20, 2024

SECRETARY, DEPARTMENT OF

CORRECTIONS, STATE OF FLORIDA, ALEARLEe ieee or.

5.0. OF FLA. - wes

Respondent

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON PETITIONER’S PETITION UNDER 28 U.S.C. § 2254 FOR WRIT

OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY [DE 7]

THIS CAUSE is before the Undersigned upon Petitioner, Jermaine Smith’s (“Petitioner”)

Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody

(“Petition”) [DE 7].' The matter was referred to the Undersigned United States Magistrate Judge

by the Honorable Donald M. Middlebrooks, United States District Judge. See DE 5. Respondent,

Secretary, Florida Department of Corrections (“the State”), has filed a response to the Petition [DE

12], appendices [DEs 13 and 14], and several transcripts [DE 15]. Petitioner has filed a reply [DE

18]. The Undersigned held an evidentiary hearing on the Petition on August 16, 2024. See DE 38.

Thus, the matter is ripe for review. The Undersigned has reviewed and carefully considered the

Petition, the response, the reply, the appendices and exhibits, the transcripts, the testimony at the

August 16, 2024 evidentiary hearing, and all pertinent portions of the underlying criminal file.

' The Petition was amended, although not titled as such.

I. BACKGROUND

This case originated in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm

Beach County, Florida (case number 50-2017-CF-005182-MB). [DE 13-1 at 5]. Petitioner was

charged with Robbery with a Deadly Weapon and proceeded to trial on that charge. [DE 13-1 at

15, 18–19]. Following a jury trial, on September 27, 2018, the jury found Petitioner guilty of the

lesser included offense of Robbery with a Weapon, finding that, in the course of committing the

offense, Petitioner did not carry a deadly weapon.2 [DE 13-1 at 17]. Thus, that same day, on

September 27, 2018, Petitioner was adjudicated guilty of Robbery with a Weapon. [DE 13-1 at

20]. And on December 7, 2018, the trial court sentenced Petitioner to fifteen (15) years in the

Department of Corrections, with 74 days of credit for time served. [DE 13-1 at 24–25].

Petitioner appealed his Judgment and Sentence, and the Fourth District Court of Appeal

per curiam affirmed his conviction and sentence. See DE 13-1 at 117. Several years later, on March

10, 2021, Petitioner filed an Amended Motion for Post-Conviction Relief,3 arguing that he was

deprived of his right to the effective assistance of counsel based on trial counsel’s failure to advise

him that he would likely be found guilty due to the overwhelming nature of the evidence against

him, and trial counsel’s failure to advise him that acceptance of the State’s plea deal was in his

best interest. [DE 13-1 at 120–35].

Subsequently, on March 24, 2022, the trial court entered an Order Denying [Petitioner’s]

Amended Motion for Postconviction Relief. [DE 13-1 at 141–46]. Specifically, in response to

2 Petitioner was convicted of Robbery with a Weapon, and not Robbery with a Deadly Weapon. This was because the

jury made specific findings that, while Petitioner did not carry a deadly weapon, Petitioner did carry a weapon. [DE

13-1 at 17–18].

3 Petitioner initially filed a Motion for Post-Conviction Relief [DE 13-1 at 119] on February 8, 2021, which he quickly

amended.

2

Defendant’s argument “that the knowledge of the surveillance video at trial, in conjunction with

the DNA evidence, would have changed his decision concerning the plea offer[,]” the trial court

found that the record conclusively refuted Petitioner’s purported lack of knowledge of the

surveillance video, as “the State mentioned the video during the discussion of the plea offer and

colloquy with” Petitioner. [DE 13-1 at 143]. Moreover, during discussion of the plea offer and the

colloquy with Petitioner, Petitioner “was present in the courtroom and, subsequent to the State

mentioning its intention to utilize the surveillance footage and DNA evidence, [Petitioner] rejected

the plea offer in open court.” [DE 13-1 at 144]. And, as to the overwhelming nature of the evidence

against Petitioner, the trial court noted that the State “introduced photographs depicting scenes

captured from the video and the witnesses at trial could not identify [Petitioner] based on the

surveillance video but rather only acknowledged the similarities between [Petitioner] and the

individual in the video.” [DE 13-1 at 144]. Thus, the trial court found that Petitioner failed to prove

prejudice under Strickland v. Washington, 466 U.S. 668 (1984). [DE 13-1 at 144].

The trial court also found that “[t]he record conclusively refute[d Petitioner’s] claim that

[Petitioner] would have accepted the [plea] offer if properly advised[,]” as “[t]he State and

Defense, as officers of the Court, both represented at the beginning of the plea colloquy that

[Petitioner] wanted probation or house arrest.” [DE 13-1 at 145]. Moreover, “[a]fter discussing the

surveillance video, DNA evidence, use of a hammer to break the glass, charges against [Petitioner],

and approximate value of the property stolen, [Petitioner] rejected the plea offer of five (5) years

on the record.” [DE 13-1 at 145]. Indeed, Petitioner “independently confirmed that he understood

his options, had spoken with defense counsel, and rejected the option of a plea offer in deciding to

proceed to trial instead.” [DE 13-1 at 145–46].

3

Petitioner appealed the trial court’s denial of his amended motion for postconviction relief.

[DE 13-1 at 147]. The Fourth District Court per curiam affirmed the denial of his amended motion

for postconviction relief, with Judge Warner including a written dissent. [DE 13-1 at 204].

Specifically, Judge Warner stated:

I dissent from the affirmance of the trial court’s order summarily denying

appellant’s motion for postconviction relief. In the motion, appellant claimed

ineffective assistance of counsel in failing to apprise him of the overwhelming

strength of the State’s case before he rejected a favorable plea offer. Because the

record does not conclusively refute his allegations, I would reverse for an

evidentiary hearing on the issue.

[DE 13-1 at 204].

Thereafter, Petitioner filed a Motion for Rehearing, Request that the Court Enter a Written

Opinion, and/or Request for Clarification [DE 13-1 at 205–211], which the Fourth DCA also

denied. [DE 13-1 at 212]. Notably, in the Fourth DCA’s denial of the motion, Judge Warner again

dissented and wrote that she would have granted rehearing. [DE 13-1 at 212].

II. PETITION, RESPONSE, AND REPLY

A. Petition & Memorandum [DEs 7, 3]

In the Petition [DE 7] and corresponding Memorandum [DE 3], Petitioner seeks federal

habeas relief, arguing that he was “deprived of his right to the effective assistance of counsel by

his trial counsel’s failure to adequately advise him with respect to the state’s plea offer of 5 years[’]

imprisonment” and that he therefore is “entitled to have his state court Judgment and Sentence

vacated.” [DE 3 at 5].

Specifically, Petitioner argues that his trial counsel performed deficiently. Id. In this regard,

while Petitioner acknowledges that “[h]ow to define the duties and responsibilities of defense

counsel in the plea bargaining process, for purposes of Strickland’s deficient performance prong,

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has not been outlined by the United States Supreme Court,” Petitioner contends the fact that “the

right to effective assistance of counsel encompasses the accused’s right to be informed by his

attorney as to the relative merits of pleading guilty and proceeding to trial, is hardly novel, having

been articulated by the Supreme Court nearly a half-century ago” in Von Moltke v. Gillies, 332

U.S. 708, 721 (1948). Id. (alterations and citation omitted). And on this matter, Petitioner maintains

that:

Here, in his state court proceedings [Petitioner] argued he was deprived of his right

to the effective assistance of counsel by his trial counsel’s failure to discuss with

[Petitioner] the fact a surveillance video from Value Pawn portraying a man who

looked strikingly similar to [Petitioner] smashing the glass case and cutting himself

would be played at trial. Instead, Mr. Walsh simply advised [Petitioner] that five

(5) years imprisonment was too much, that they could obtain a better offer, and,

failing that, they had a solid chance of winning at trial as he could explain away the

DNA evidence. However, had [Petitioner] been properly advised that a surveillance

video from Value Pawn portraying a man who looked strikingly similar to him

smashing the glass case and cutting himself would be played at trial, [Petitioner]

would have accepted the state's offer of five (5) years imprisonment. Furthermore,

had [Petitioner] been properly advised that due to the overwhelming nature of the

evidence against him he would likely be found guilty, and that in all likelihood he

would be sentenced to greater than five (5) years imprisonment, [Petitioner] would

have accepted the state's offer of five (5) years imprisonment.

Id. at 6.

According to Petitioner, the state court’s finding that the record conclusively refuted this

argument “is contrary to and/or constitutes an unreasonable application of clearly established

federal law[.]” Id. Indeed, Petitioner “acknowledges the record is clear that the State informed

[him] of the evidence against him” but argues that “[w]hat is not in the record is whether trial

counsel allowed [him] to view the evidence against him or discussed the evidence against him,

and what it meant to his chances of success at trial[,]” as well as “trial counsel’s advice regarding

the evidence.” Id.

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In fact, Petitioner argues that he stated under oath that trial counsel “did not discuss with

him the fact a surveillance video from Value Pawn portraying a man who looked strikingly similar

to [Petitioner] smashing the glass case and cutting himself would be played at trial” and also stated

under oath that “Mr. Walsh simply advised him that five (5) years imprisonment was too much,

that they could obtain a better offer, and, failing that, they had a solid chance of winning at trial as

he could explain away the DNA evidence.” Id. at 7. Moreover, Petitioner notes that he stated under

oath that “had he been properly advised that a surveillance video from Value Pawn portraying a

man who looked strikingly similar to him smashing the glass case and cutting himself would be

played at trial, he would have accepted the state’s offer of five (5) years imprisonment” and that

“had he been properly advised that due to the overwhelming nature of the evidence against him he

would likely be found guilty, and . . . in all likelihood he would be sentenced to greater than five

(5) years imprisonment, he would have accepted the state’s offer of five (5) years imprisonment.”

Id. Petitioner asserts that these attestations must be accepted by the Court as true. Id.

Petitioner maintains it was unreasonable for trial counsel to advise him that five (5) years’

imprisonment was too much and that they could win at trial, and that trial counsel “performed

deficiently by failing to advise him that the state’s evidence would ensure he would lose at trial,

and, therefore, [that] acceptance of the state’s plea offer of five (5) years imprisonment was in his

best interest.” Id. at 7–8. More specifically, Petitioner argues that his “trial counsel was required

to offer him his informed advice regarding the state’s evidence prior to advising [Petitioner] to

reject the state’s offer, and [that] no reasonable attorney would have failed to advise [Petitioner]

that in light of the overwhelming nature of the state’s case against him, and [the] grave

consequences he faced by rejecting the offer, that acceptance of the offer was in his best interest[.]”

6

Id. at 8. Petitioner thus argues that “trial counsel performed deficiently within the meaning of

Strickland regardless of whether [Petitioner] knew of the evidence against him.” Id. at 8.

Next, Petitioner contends that he was overwhelmingly prejudiced by his trial counsel’s

deficient performance. Id. According to Petitioner, he has “met the prejudice prong of Strickland,

as the record demonstrates that he would have accepted the state’s offer of 5 years imprisonment

had he been properly advised in connection with the state’s plea offer[.]” Id. And because his

burden is merely “to demonstrate a probability sufficient to undermine this Court’s confidence in

the outcome of his plea negotiations[,] . . . because this Court cannot say with confidence that the

outcome of [Petitioner’s] plea negotiations would have remained the same had trial counsel

advised [Petitioner] of the overwhelming nature of the evidence against him, and that acceptance

of the state’s plea offer was in his best interest, [Petitioner] has demonstrated prejudice within the

meaning of Strickland.” Id. at 9. Indeed, Petitioner also notes that his sentence “would have been

less severe under the plea offer – 5 years imprisonment – than under the judgment and sentence –

15 years imprisonment – that was entered.” Id.

Accordingly, Petitioner maintains “[i]n order to restore [Petitioner] to the circumstances

that would have existed had there been no constitutional error, this Court should order the Circuit

Court in and for Palm Beach County, Florida, to vacate [Petitioner’s] Judgment and Sentence, and

direct the circuit court to enter a new Judgment and Sentence reflecting a 5 year term of

imprisonment, or, in the alternative, order the circuit court to vacate [Petitioner’s] Judgment and

Sentence, and direct the state to resume good faith plea negotiations with him.” Id. at 10. At the

very least, Petitioner argues he is entitled to an evidentiary hearing. Id. at 11.

7

B. Response [DE 12]

After discussing the evidence and the procedural history of the case, the State concedes

that the Petition “appears to be timely.” [DE 12 at 12]. Moreover, the State concedes that

“Petitioner’s sole claim in the instant [P]etition appears exhausted because the same claim was

raised in the state court in his motion for postconviction relief, resolved on the merits, and

appealed.”

Thereafter, under Strickland, the State first argues that Petitioner’s claim is facially

insufficient. Id. at 21. Specifically, the State notes that Petitioner “perfunctorily asserts that trial

court’s assessment of the evidence was unreasonable by exaggerating the strength of the State’s

evidence as ‘overwhelming[,]’” as “[i]n Florida, DNA located at the scene of an offense is not

always conclusive evidence of involvement in a crime.” Id. And, “no witness identified

Petitioner in the video recording.” Id. at 22. Indeed, “the surveillance video had limited probative

value in identifying Petitioner in only depicting a person ‘similar’ to Petitioner.” Id. at 24.

Because Petitioner’s analysis of the evidence as “overwhelming” is exaggerative, the State

argues that “Petitioner’s assertions ultimately amount to mere conclusory dissatisfaction with trial

counsel’s assessment, which cannot form the basis of an ineffectiveness claim.” Id. at 25–26. The

State argues it was therefore “entirely reasonable for defense counsel to advise Petitioner to reject

the plea based on the strength of the State’s evidence and their settled strategy to ‘explain away’

the DNA evidence.” Id. at 26.

Next, under Strickland, the State argues that Petitioner cannot demonstrate prejudice. Id.

at 26. This is because “[t]he state court record clearly refutes Petitioner’s claim of prejudice, as . .

. a hearing prior to jury selection reveals that Petitioner was given an opportunity to accept the plea

8

offer of five years while highlighting that the State had blood evidence and a surveillance video[.]”

Id. at 27. Moreover, “both the State and defense counsel indicated Petitioner was only interested

in probation or house arrest.” Id. And, Petitioner maintained that he had a chance to talk with

trial counsel and decided to go to trial during his colloquy. Id. at 28–29. As summarized by the

State:

Here, not only was Petitioner aware of the offer, counsel advised him not to take it,

and when the offer was again discussed on the record, the State and the trial court

specifically cited the DNA and video evidence before Petitioner again rejected the

offer. (H 4, 13-16). The state court record conclusively shows that, at the time,

Petitioner would not accept anything other than probation or house arrest. (H

13). Petitioner’s current claim amounts to nothing more than an after the fact desire

to have accepted the plea. See (DE#3 8-9).

Petitioner’s after the fact aspiration that he should have accepted the offer is

insufficient to support a claim of prejudice. Diaz, 930 F.2d at 835; Cook, 189

Fed. Appx. at 931. This is the epitome of hindsight coloring an ineffectiveness

claim. See Strickland, 466 U.S. at 689.

Id. at 31.

And finally, as to Petitioner’s request for an evidentiary hearing, according to the State,

“an evidentiary hearing is unwarranted.” Id. at 32–34.

C. Reply [DE 18]

In reply, Petitioner argues that the State’s arguments are “devoid of merit[.]” [DE 18 at 1].

First, Petitioner argues that the State’s argument that Petitioner’s “blood being inside the smashed

jewelry counter along with a surveillance video of a person that looks exactly like him smashing

the jewelry counter is not overwhelming evidence is ludicrous.” Id. at 1–2. To this end, “[c]ommon

sense says if a video depicts a person smashing a jewelry counter that looks exactly like the person

whose blood is found inside of the smashed jewelry counter then that person that left the blood is

the one who smashed the counter, and took the jewelry.” Id. at 2. And, “[a]s no reasonable attorney

9

would have failed to advise [Petitioner] that in light of the overwhelming evidence against him

acceptance of the state’s offer of five (5) years imprisonment was in his best interest trial counsel

performed deficiently within the meaning of Strickland.” Id. But even assuming the evidence was

only “compelling,” Petitioner asserts no reasonable attorney would have failed to advise Petitioner

of the “compelling” evidence against him. Id.

Second, Petitioner argues that the fact he was aware of the blood evidence and surveillance

video proves nothing, as “there is nothing in the record demonstrating [Petitioner] knew the blood

would be linked to him, and there is no evidence [Petitioner] reviewed the surveillance video.” Id.

And, because there was no evidentiary hearing below, “this Court must accept [Petitioner’s]

assertion that trial counsel gave no advice as to what the blood evidence and surveillance video

meant to his chances at trial.” Id. This Court “must also accept as fact, [Petitioner’s] assertion that

had trial counsel made him aware that this evidence would virtually ensure he would be convicted

and sentenced to more than five (5) years imprisonment that he would have accepted the state’s

plea offer of five (5) years imprisonment, that the state would not have withdrawn the offer, that

the court would have accepted the offer, and he would be serving less time under the plea

agreement than he is currently serving.” Id. at 2–3. Thus, Petitioner argues he has been

“overwhelmingly prejudiced.” Id. at 3.

Third, Petitioner asserts that the State “relies on off the cuff remarks from the state and

defense in an attempt to prove [Petitioner] would not have accepted the state’s offer had he been

properly advised.” Id. After noting that the State and defense counsel were not testifying under

oath, Petitioner argues that his assertion under oath that “had trial counsel properly advised him to

10

accept the plea offer, he would have accepted the state’s offer” is not refuted by the record and

must be accepted as fact.

Thus, Petitioner again maintains that, “because the record reflects that [Petitioner] suffered

prejudice from his trial counsel’s deficient performance, he was deprived of his right to the

effective assistance of counsel, and, as such, [Petitioner’s] Judgment and Sentence should be

vacated, and the circuit court in and for Palm Beach County should be directed to impose a new

Judgment and Sentence reflecting a 5 year term of imprisonment.” Id. at 4. Alternatively, Petitioner

argues that “this Court should hold an evidentiary hearing to resolve [Petitioner’s] claim as the

record is not sufficient to deny [Petitioner’s] claim, and [Petitioner] attempted to develop the

record in state court but was prevented from doing so through no fault of his own.” Id.

III. PETITIONER’S ENTITLEMENT TO AN EVIDENTIARY HEARING

On July 12, 2024, after having carefully reviewed the Petition and all corresponding

documents, the Undersigned entered an Order Setting Evidentiary Hearing [DE 19], finding that

an evidentiary hearing was necessary in the case. [DE 19 at 1]. The State then filed a Motion for

Reconsideration of Order Granting Evidentiary Hearing [DE 21], which the Undersigned denied.

See DE 25.

The Undersigned incorporates the Order Denying Motion for Reconsideration of Order

Granting Evidentiary Hearing [DE 25] as part of this Report and Recommendation. That Order

Denying Reconsideration includes the reasons the Undersigned determined that an evidentiary

hearing was necessary in this case. See DE 25. Importantly, however, the Undersigned noted that,

“[b]y holding an evidentiary hearing, the Court is by no means stating that Petitioner is entitled to

any relief under 28 U.S.C. § 2254(d). The Court simply wants to develop a full and complete

11

record.” [DE 25 at 10]. Consequently, the case remained set for an evidentiary hearing on August

16, 2024. See DEs 25, 26, 28. And, the evidentiary hearing did proceed on August 16, 2024.

IV. THE AUGUST 16, 2024 EVIDENTIARY HEARING

At the beginning of the August 16, 2024 evidentiary hearing, the State yet again objected

to the Court holding an evidentiary hearing, citing to Landers v. Warden, Att. Gen. of Ala., 776

F.3d 1288 (11th Cir. 2015), and Dean v. Warden, No. 19-15112-E, 2020 WL 3551715 (11th Cir.

Mar. 24, 2020). In this regard, the State reiterated its position that “before a habeas petitioner may

be entitled to a federal evidentiary hearing on a claim that has been adjudicated by the state court,

he must demonstrate a clearly established federal-law error or an unreasonable determination of

fact on the part of the state court, based solely on the state court record.” Landers, 776 F.3d at

1295.

The State’s position appeared to be that, because this Court did not make a finding that

Petitioner demonstrated a clearly established federal-law error or an unreasonable determination

of fact on the part of the state court, an evidentiary hearing was improper. Indeed, the State noted

that, in setting the August 16, 2024 evidentiary hearing, the Court “clarifie[d] that it [wa]s not

deciding whether Petitioner’s claim ha[d] any merit by merely holding an evidentiary hearing.”

[DE 25 at 9]. However, despite the State’s reliance on this language and upon the Court’s omission

of an explicit finding that Petitioner demonstrated clearly established federal-law error or an

unreasonable determination of fact on the part of the state court, the Court did not hold an

evidentiary hearing on a whim. The Court felt it was necessary to hear the testimony of the relevant

witnesses to the plea discussions, which included the Petitioner, his attorney, and the prosecutor.

12

In agreement with 4th DCA Judge Warner’s urging of an evidentiary hearing in state court,

the Undersigned determined that the record should be complete and clear so this Court could make

a proper determination and avoid any potential of a miscarriage of justice. An evidentiary hearing

was necessary to achieve that goal. And, under the unique and specific facts of this case, the Court

set the evidentiary hearing because, in part, the Court implicitly found that Petitioner’s claim

arguably demonstrated an unreasonable determination of fact on the part of the state court through

its failure to hold an evidentiary hearing that was very clearly not refuted by the record. The

Undersigned intended to make this implicit finding explicit in any subsequent Report and

Recommendation after the evidentiary hearing. The Court’s holding of an evidentiary hearing in

this case is also discretionary, and the Court determined to exercise its discretion to hold an

evidentiary hearing. While the State repeatedly objected to an evidentiary hearing, the State’s

objections were unfounded. Further, the State should also be concerned whether or not justice is

done in a case, rather than formalistically objecting to such a hearing in knee-jerk fashion.

In any event, through the testimony elicited at the hearing, and despite the State’s

unfounded, vociferous, and repeated objections to the evidentiary hearing taking place in the first

instance, the evidentiary hearing actually aided the State’s position and helped crystallize the

Undersigned’s determination that the Petition must be DENIED in its entirety. After hearing from

the witnesses at the evidentiary hearing, the Court is quite firm in its determination that Petitioner

is not entitled to any relief on his Petition.

13

Specifically, during the August 16, 2024 evidentiary hearing, the Court heard from three

witnesses: 1) Petitioner Jermaine Smith; 2) former Assistant State Attorney Luisa Berti, Esq.; and

3) trial counsel Michael Dennis Walsh. Their testimony is briefly summarized as follows:4

A. Petitioner

Petitioner’s trial counsel was Michael Walsh, who was privately retained. Prior to trial,

Petitioner was offered a five-year plea deal. However, Mr. Walsh informed Petitioner that he could

get Petitioner something better or that Petitioner should proceed to trial. Petitioner therefore

rejected the five-year plea deal offer because Mr. Walsh told Petitioner that he would be able to

“explain away” the DNA evidence. In fact, when Petitioner asked Mr. Walsh if he should take the

five-year plea deal, Mr. Walsh said no.

Petitioner proceeded to trial without taking the plea. At trial, while Petitioner knew of the

existence of DNA evidence and a surveillance video generally, Petitioner had never seen the

surveillance video footage. During trial, Prosecutor Luisa Berti, Esq. started utilizing this footage,

comparing Petitioner’s appearance to the individual in the surveillance video, including the fact

that Petitioner was wearing two earrings in his left ear at the time of trial, and that the individual

in the surveillance footage had two earrings in his left ear. Had Petitioner seen the surveillance

video footage, he would not have gone to trial, and would definitely not have gone to trial with

two earrings in his ear. In Petitioner’s mind, Mr. Walsh did not even review the surveillance

footage.

Petitioner regrets not taking the five-year plea deal. After Petitioner was found guilty and

proceeded to sentencing, Petitioner asked for probation or house arrest. Petitioner was unaware he

4 No transcript of the hearing is available at this time.

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could ask for a five-year sentence and his trial counsel did not tell him what to ask for at sentencing.

Thus, when the sentencing Judge informed Petitioner that he could sentence Petitioner anywhere

from probation to thirty years in prison, Petitioner asked for probation or house arrest.

B. Luisa Berti, Esq.

Ms. Berti is currently an Assistant United States Attorney for the Middle District of

Pennsylvania. She previously worked as an Assistant State Attorney in Palm Beach County, having

been the prosecutor of record in Petitioner’s state court case. Ms. Berti tried a significant number

of felony cases and tended to remember cases that proceeded to trial.

In this regard, Ms. Berti recalled offering a five-year plea deal to Destiny Fulwood, Esq.,

an Assistant Public Defender who represented Petitioner before Petitioner retained Mr. Walsh, and

Ms. Berti recalled Petitioner rejecting that plea deal offer. However, Ms. Berti had no recollection

of offering Mr. Walsh the same plea deal after he took over Petitioner’s case. Moreover, Ms. Berti

did not remember specifically when she revoked the five-year plea deal offer to Petitioner but

knew that it was revoked prior to the start of trial. Ms. Berti did, however, remember Petitioner’s

counsel (whether it was Ms. Fulwood or Mr. Walsh) asking for a non-incarcerative plea deal, and

Ms. Berti stated that Petitioner seemed wedded to the idea of not serving any type of incarcerative

sentence.

Ms. Berti believed the case against Petitioner was good. However, she did not believe it

was the strongest case she had ever worked on. Thus, the five-year plea deal offer to Ms. Fulwood

was reflective of the possibility that the State could lose at trial. According to Ms. Berti, if

Petitioner had accepted the plea deal, she would have honored it, but she would not have offered

the plea deal after preparing for trial.

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C. Michael Dennis Walsh

Mr. Walsh currently lives in Hawaii, and is suspended from the practice of law in Florida

for matters unconnected to his representation of Petitioner in the underlying criminal case.

Previously, Mr. Walsh had a Florida law practice and represented Petitioner both prior to trial, and

during trial. Mr. Walsh has significant experience with criminal cases and has represented over

1000 criminal defendants throughout his career.

Mr. Walsh remembered representing Petitioner, stating that he represented around 12–15

other individuals around that same timeframe. Mr. Walsh could not recall the State making a plea

deal offer that Petitioner was willing to accept, as Petitioner was unwilling to accept any jail time.

According to Mr. Walsh, a seven-year plea deal may have been offered to Petitioner (though it

could have been five years), but Petitioner “flatly” rejected the plea deal offer and made it clear

that he was unwilling to accept incarceration and was in fact unwilling to propose a plea deal

counter-offer.

Mr. Walsh discussed the risk of Petitioner going to trial and noted that he considered the

trial judge—Circuit Court Judge John S. Kastrenakes—the toughest sentencing Judge. Indeed, Mr.

Walsh recalled Judge Kastrenakes sentencing Petitioner to fifteen years, the maximum sentence

that he remembered Petitioner facing. Further, Mr. Walsh attested that he discussed the evidence

in the case with Petitioner prior to trial, including the DNA and surveillance video. While Mr.

Walsh did not recall if Petitioner—who was out on bond pending trial—personally reviewed the

surveillance video, Mr. Walsh stated that it was his practice to make copies of all discovery for

clients and that he always provided his clients with all discovery and the opportunity to review it.

Mr. Walsh testified that he provided all the discovery including the surveillance video to Petitioner

16

prior to trial and met with Petitioner in his office to discuss the case and the discovery. Further,

Mr. Walsh recalled suggesting that Petitioner get a defense expert for the DNA evidence, but he

stated that Petitioner told him that he did not have the money to do so; and, Petitioner did not

qualify for indigent status to obtain an expert at State expense.

Notably, Mr. Walsh’s troubles with the Florida Bar have occurred over the last two-and-a-

half years, well after Petitioner’s trial. Specifically, while Mr. Walsh noted the official reason for

his suspension was failing to appear at certain hearings and failing to properly keep his clients

apprised of their cases, he previously had a cocaine addiction that ultimately led to the conduct

underlying his suspension.5 Mr. Walsh had also taken a medical leave before, around 2012.

However, Mr. Walsh clarified that he did not use cocaine at the time of Petitioner’s trial, and he

testified as to his ongoing efforts to get reinstated with the Florida Bar.

Mr. Walsh believed the State had a very strong case against Petitioner. He believed Ms.

Berti would have honored any plea deal made to Petitioner.

D. Credibility Determinations

After observing the demeanor of the witnesses and hearing their testimony, the

Undersigned finds both Mr. Walsh and Ms. Berti to be very credible witnesses. Specifically, the

Court finds credible Mr. Walsh’s testimony that he made all the discovery available to Petitioner

prior to trial, that he fully discussed the case and the evidence with Petitioner, and that Petitioner

would not agree to any plea offer that involved any jail or prison time. Additionally, the Court

5 Mr. Walsh, to his credit, was very forthcoming during the evidentiary hearing and he readily acknowledged his prior

addiction and faults. While Mr. Patti, counsel for the State, objected to the introduction of such testimony, Mr. Walsh

was very open with his addiction and wanted to ensure that the testimony was elicited so that Petitioner received a fair

hearing. The Court agrees with Mr. Walsh on this point. The Undersigned has considered Mr. Walsh’s openness and

candor as part of the Court’s credibility determination.

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finds credible Ms. Berti’s testimony and finds it supportive of this Court’s finding that Petitioner

never would have accepted any plea offer that involved jail or prison time. The Court credits her

testimony in making its findings in this case.

As to Petitioner Jermaine Smith, the Court does not find his testimony to be credible, as it

is quite clear to the Undersigned that Petitioner was seeking to avoid any type of prison or jail

sentence whatsoever during the plea negotiations and is now attempting to re-write the history of

his case. That is, after hearing from the witnesses and assessing their credibility, the Undersigned

finds that Petitioner adamantly refused to accept any plea that would result in any jail or prison

time. Petitioner would only accept probation or house arrest, and that option was never offered to

Petitioner. Further, the Court is quite concerned about the portion of Petitioner’s testimony where

he stated, in effect, that the person in the surveillance video wore two earrings in his ear, and that

had Petitioner viewed the video in advance, he would not have worn the two earrings in his ear at

trial. This testimony raises the specter that Petitioner would be willing to alter his appearance in

an effort to avoid damaging evidence at trial.

V. RELEVANT LAW

Pursuant to 28 U.S.C. § 2254(d), an individual in state custody is entitled to federal habeas

corpus relief only on the ground that he is in custody in violation of the United States Constitution

or laws or treaties of the United States. To obtain habeas corpus relief from a federal court, a

prisoner must demonstrate that the state court’s ruling on 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

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proceeding. 28 U.S.C. § 2254(d)(1)-(2); see also Williams v. Taylor, 529 U.S. 362, 405–06 (2000);

Fugate v. Head, 261 F.3d 1206, 1215–16 (11th Cir. 2001).

“A state-court decision is contrary to this Court’s clearly established precedents if it applies

a rule that contradicts the governing law set forth in this Court’s cases, or if it confronts a set of

facts that is materially indistinguishable from a decision of this Court but reaches a different

result.” Brown v. Payton, 544 U.S. 133, 141 (2005); Williams, 529 U.S. at 405–06. “A state-court

decision involves an unreasonable application of this Court’s clearly established precedents if the

state court applies such precedents to the facts in an objectively unreasonable manner.” Id. In the

context of habeas petitions, “clearly established Federal law” refers to the holdings of the Supreme

Court’s decisions as of the time of the relevant state court decision. Hall v. Head, 310 F.3d 683,

690 (11th Cir. 2002) (citing Williams, 529 U.S. at 412). Federal courts are required to presume the

correctness of the state court’s factual findings unless the petitioner overcomes them by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1); Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.

2001).

The Supreme Court repeatedly has held that “[t]he petitioner carries the burden of proof”

and that the § 2254(d)(1) standard is a high hurdle to overcome. See Bobby v. Dixon, 565 U.S. 23,

24 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102–03 (2011)); Cullen v. Pinholster, 563

U.S. 170, 180 (2011). State court decisions must be given a strong presumption of deference even

when the state court adjudicates a petitioner’s claim summarily. See Harrington, 562 U.S. at 96–

100; Gill v. Mecusker, 633 F.3d 1272, 1288 (11th Cir. 2011).

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VI. ANALYSIS

As an initial matter, there is no dispute that Petitioner is in custody or that the Petition is

timely under 28 U.S.C. § 2254(d)(1). See DE 12 at 12. As the same issue raised in the Petition was

raised in the amended postconviction motion and the appeal of the denial of the amended

postconviction motion, the issue is therefore exhausted. Therefore, the Court can proceed directly

to the merits of the Petition.

The AEPDA, however, rather strictly limits the Court’s review of “any claim that was

adjudicated on the merits in State court proceedings[.]” 28 U.S.C. § 2254(d). This Court must

determine only whether the state court’s decision “involved an unreasonable application of[ ]

clearly established federal law” or “was based on an unreasonable determination of the facts[.]”

Id. Here, the last state court to adjudicate Petitioner’s claim on the merits was the Fourth District

Court of Appeal, which issued an unwritten opinion summarily affirming the state court (albeit

with a written dissent). The Court is therefore required to perform a “‘look-through’ [of] the

unexplained decision to the last related state-court decision that does provide a relevant rationale.”

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). In this case, on March 24, 2022, the state court

denied the amended postconviction motion. [DE 13-1 at 141–46]. Therefore, this Court must

review the reasonableness of that state court order.

Petitioner’s claim is based on his allegations that his counsel performed deficiently. “In

Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court established a two-prong

test for evaluating claims of ineffective assistance of counsel. Under the ‘performance’ prong, the

defendant must show that counsel’s performance ‘fell below an objective standard of

reasonableness.’” King v. U.S., 250 F. App'x. 930, 932 (11th Cir. 2007) (citing Strickland, 466

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U.S. at 688). “Under the ‘prejudice’ prong, the defendant must show that counsel’s deficient

performance actually prejudiced the defendant and that, “but for the attorney’s error, the outcome

of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 694). The burden

of persuasion is on a petitioner to prove, by a preponderance of competent evidence, that counsel’s

performance was unreasonable. See Strickland, 466 U.S. at 688. The petitioner must establish that

particular and identified acts or omissions of counsel “were outside the wide range of

professionally competent assistance.” Chandler v. United States, 218 F.3d 1305, 1313, 1314 (11th

Cir. 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987); see also Strickland, 466 U.S. at

686 (stating that petitioner must show “counsel’s representation fell below an objective standard

of reasonableness”, which means that counsel’s performance was unreasonable “under prevailing

professional norms. . . considering all of the circumstances”).

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting

for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is

all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude

that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689. When

assessing a lawyer’s performance, “[c]ourts must indulge the strong presumption that counsel’s

performance was reasonable and that counsel made all significant decisions in the exercise of

reasonable professional judgment.” Chandler, 218 F.3d at 1314 (11th Cir. 2000). When assessing

ineffective assistance of counsel claims, the court’s role is not to “grade a lawyer’s performance;

instead, [the court] determine[s] only whether a lawyer’s performance was within the wide range

of professionally competent assistance.” Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1322

(11th Cir. 2002) (quoting Strickland, 466 U.S. at 690) (internal quotation marks omitted).

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“Intensive scrutiny and second-guessing of attorney performance are not permitted.” Spaziano v.

Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994).

If a petitioner’s claim of ineffectiveness turns on whether counsel should have raised issues

of state law, § 2254(d) requires that the federal court defer to the state court’s decision regarding

its own laws. See Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (superseded by

statute on other grounds). It is “a fundamental principle [that] state courts are the final arbiters of

state law, and federal habeas courts should not second-guess them on such matters.” See Herring

v. Sec’y, Dept. of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005) (quoting Agan v. Vaughn, 119

F.3d 1538, 1549 (11th Cir. 1997)).

Further, in the context of a plea deal in particular, “defense counsel has the duty to

communicate formal offers from the prosecution to accept a plea on terms and conditions that may

be favorable to the accused.” Missouri v. Frye, 566 U.S. 134, 145 (2012). Indeed,

[t]hough the standard for counsel's performance is not determined solely by

reference to codified standards of professional practice, these standards can be

important guides. The American Bar Association recommends defense counsel

“promptly communicate and explain to the defendant all plea offers made by the

prosecuting attorney,” ABA Standards for Criminal Justice, Pleas of Guilty 14–

3.2(a) (3d ed. 1999), and this standard has been adopted by numerous state and

federal courts over the last 30 years.

Id. at 145. To establish prejudice, Petitioner must “allege and prove a reasonable probability,

defined as a probability sufficient to undermine confidence in the outcome, that (1) he or she would

have accepted the offer had counsel advised the [Petitioner] correctly, (2) the prosecutor would

not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction

or sentence, or both, under the offer’s terms would have been less severe than under the judgment

and sentence that in fact were imposed.” Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013).

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Here, much of the Petition was based on Petitioner’s claim of ineffective assistance of

counsel not being conclusively refuted by the record. However now, with the benefit of a full and

complete evidentiary hearing, the Undersigned finds that Petitioner’s claim of ineffective

assistance of counsel is conclusively refuted by the record. Specifically, as discussed above, the

Undersigned finds Mr. Walsh and Ms. Berti to be quite credible (though their memories were at

times understandably faulty due to the passage of time), and also finds Petitioner to not be credible.

In this regard, the Undersigned finds that—even assuming the five-year plea deal offer

remained open to Mr. Walsh and, through extension, Petitioner—Mr. Walsh did not perform

deficiently in his representation of Petitioner. It was Mr. Walsh’s practice to provide all discovery

to his clients, and Mr. Walsh attested that he provided the surveillance footage to Petitioner and

that Petitioner knew of all the evidence against him. Indeed, the Undersigned notes Mr. Walsh’s

testimony that Petitioner was out on bond pretrial, which would have made it even easier for

Petitioner to obtain and view the evidence against him. Petitioner was able to visit Mr. Walsh in

his office and obtain and review all the discovery. The Undersigned finds that Mr. Walsh’s

representation was not ineffective; in fact, it was effective, competent, and proper. Mr. Walsh did

his best with a strong State case and a client who refused to accept any plea involving jail or prison

time. It is clear to this Court that Petitioner now regrets not taking the five-year plea offered to him

as, after he lost at trial, the 15-year sentence was much higher than that which had been offered to

him pretrial.

Further, Petitioner cannot establish prejudice under Strickland. To this end, Mr. Walsh and

Ms. Berti were adamant that Petitioner rejected all plea offers and that Petitioner was not looking

for any sort of incarcerative sentence, testimony which this Court credits. And as noted by the

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State, at sentencing, Petitioner remained focused on receiving probation or house arrest rather than

any sort of incarceration. It is clear to the Undersigned that Petitioner was laser focused on

avoiding any jail or prison sentence. Because of this, Petitioner would have, and did, reject any

sentence involving incarceration. His claims and testimony now are without merit.

Thus, following an evidentiary hearing, the Undersigned finds that Petitioner has not

established a reasonable probability that he would have accepted any purported five-year plea deal

offer. See Alcorn, 121 So. 3d at 430. Petitioner has not established prejudice.

Accordingly, Petitioner is unable to demonstrate either deficiency or prejudice under

Strickland, and his ineffective assistance claim based upon trial counsel’s purported failure to

properly communicate the details and impact of a five-year plea deal is without merit. Therefore,

Petitioner necessarily cannot establish that the state court’s ruling: 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 (which this Court has expanded upon pursuant to an evidentiary hearing that was

necessary in this case). See 28 U.S.C. § 2254(d)(1)-(2).

Thus, with the benefit of a full evidentiary hearing and a complete record—which the Court

notes actually helps the State’s argument and conclusively dispels of Petitioner’s argument—the

Undersigned finds and RECOMMENDS that Petitioner’s Petition [DE 7] be DENIED.

VII. CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 2254 Rule 11(a) provides that “[t]he district

court must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant,” and if a certificate is issued “the court must state the specific issue or issues that satisfy

the showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed,

even if the court issues a certificate of appealability. Rule 11(b) to the Rules Governing § 2254

Proceedings.

After a careful review of the record, the Court finds that Petitioner is not entitled to a

certificate of appealability. “A certificate of appealability may [be] issued[d] . . . only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To merit a certificate of appealability, Petitioner must show that reasonable jurists

would find debatable both (1) the merits of the underlying claims and (2) the procedural issues she

seeks to raise. Slack v. McDaniel, 529 U.S. 473, 478 (2000); see also Eagle v. Linahan, 279 F.3d

926, 935 (11th Cir. 2001). Because the claim raised in the Petition is clearly without merit

following the evidence elicited during the August 16, 2024 evidentiary hearing, Petitioner cannot

satisfy the Slack test. Upon consideration of the record as a whole, the District Judge should deny

a certificate of appealability.

VIII. RECOMMENDATION TO THE DISTRICT JUDGE

A very careful review of the entire record establishes that Petitioner’s claim is meritless

and due to be denied for the reasons stated above. The Petition fails to establish any grounds for

relief. Accordingly, the undersigned United States Magistrate Judge RECOMMENDS that the

United States District Judge DENY Petitioner’s Petition [DE 7] and DENY a Certificate of

Appealability.

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NOTICE OF RIGHT TO OBJECT

The parties shall have fourteen (14) days from the date of being served with a copy of this

Report and Recommendation within which to file written objections, if any, with United States

District Judge Donald M. Middlebrooks. Failure to file objections timely shall bar the parties from

a de novo determination by the District Judge of an issue covered in the Report and

Recommendation and shall bar the parties from attacking on appeal unobjected-to factual and legal

conclusions contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas vy.

Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir.

R. 3-1.

RESPECTFULLY SUBMITTED in Chambers at West Palm Beach in the Southern

District of Florida, this 19th day of August 2024.

United States Magistrate Judge

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