Opinion

Fundora-Martinez v. Secretary Department of Corrections (Duval County)

Court: District Court, M.D. Florida
Filed: Feb 26, 2025
Cited by: 0 cases
Authority: More cited than 34.2%

“Grand theft (both second and third degrees) and petit theft (both first and second degrees) are necessarily 15 lesser included offenses of scheme to defraud.”

How later courts described this case

“Grand theft (both second and third degrees) and petit theft (both first and second degrees) are necessarily 15 lesser included offenses of scheme to defraud.”
vacating the lesser offenses of grand theft and remanding for resentencing on the RICO, organized fraud, and three remaining grand theft convictions
“[T]he accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal . . . .”
holding that “as a general rule, 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”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

REINIER FUNDORA-MARTINEZ,

Petitioner,

v. Case No. 3:21-cv-1058-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

ORDER

I. Status

Petitioner Reinier Fundora-Martinez, an inmate of the Florida penal

system, initiated this action on October 18, 2021,1 by filing a Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1) and a Memorandum

of Law and Fact Supporting the Petition (Memorandum; Doc. 2).2 In the

Petition, Fundora-Martinez challenges a 2017 state court (Duval County,

Florida) judgment of conviction for knowingly participating in an intentional

motor vehicle crash and organized fraud. He raises five grounds for relief. See

Petition at 15-37. Respondents submitted a memorandum in opposition to the

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

Petition. See Response (Doc. 8). They also submitted exhibits. See Docs. 8-1

through 8-17. Fundora-Martinez filed a brief in reply. See Reply (Doc. 9). This

action is ripe for review.

II. Relevant Procedural History

On November 18, 2016, the State of Florida charged Fundora-Martinez

by fourth amended information with knowingly participating in an intentional

motor vehicle crash (counts one through seven), false insurance claims (counts

eight through fourteen), and organized fraud (count fifteen). Doc. 8-1 at 303-

06. Fundora-Martinez proceeded to trial on counts one through four, six

through seven, and fifteen. Doc. 8-3 at 9, 41. On July 27, 2017, at the conclusion

of the trial, the jury found Fundora-Martinez guilty as charged, and the trial

court sentenced him to a fifteen-year term of imprisonment on such counts, to

run concurrently.3 Doc. 8-1 at 339-46, 403-06, 428-31, 455-61, 561.

On direct appeal with the benefit of counsel, Fundora-Martinez filed an

initial brief, arguing the trial court had violated double jeopardy by permitting

his convictions for knowingly participating in an intentional motor vehicle

3 Subsequently, Fundora-Martinez pled guilty to count five and the court

sentenced him to a two-year term of imprisonment to run concurrent with his fifteen-

year sentences. Doc. 8-1 at 376, 432-33, 442, 459-60, 495-504, 572. The State nolle

prossed the charges in counts eight through fourteen. Id. at 495, 561.

crash and organized fraud. Doc. 8-4. The State filed an answer brief. Doc. 8-5.

Fundora-Martinez filed a reply brief. Doc. 8-6. Florida’s First District Court of

Appeal (First DCA) per curiam affirmed Fundora-Martinez’s convictions and

sentences without a written opinion on July 19, 2019, Doc. 8-7, and issued the

mandate on October 25, 2019, Doc. 8-10.

On November 9, 2020, Fundora-Martinez filed a pro se motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Doc. 8-11 at 5-43. In his Rule 3.850 Motion, Fundora-Martinez alleged counsel

was ineffective when, inter alia, he: failed to move for judgment of acquittal on

counts one through seven based on a double jeopardy violation (ground one);

failed to investigate and call exculpatory witness Alex Garcia at trial (ground

three); advised Fundora-Martinez to reject a favorable ten-year probation plea

offer (ground four); advised Fundora-Martinez to reject a favorable five-year

prison plea offer (ground five); advised Fundora-Martinez not to testify in his

own defense at trial (ground six); and committed errors that cumulatively

deprived Fundora-Martinez of a fair trial (ground eight). Id. at 19-39. On

December 18, 2020, the postconviction court summarily denied relief on all

grounds. Id. at 90-102. The First DCA per curiam affirmed the denial of relief

without a written opinion on June 17, 2021, Doc. 8-14, and issued the mandate

on August 27, 2021, Doc. 8-17.

III. One-Year Limitations Period

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

28 U.S.C. § 2244(d).

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 [Fundora-Martinez’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. (internal 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.

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. 12, 18 (2013);

accord Brumfield v. Cain, 576 U.S. 305, 322 n.8 (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.’”

Titlow, 571 U.S. at 18 (quoting Wood v. Allen, 558 U.S.

290, 301 (2010)).

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

modified). Also, deferential review under § 2254(d) generally is limited to the

record that was before the state court that adjudicated the claim on the merits.

See Cullen v. Pinholster, 563 U.S. 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. 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) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and 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. 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. 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.

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. It is not enough

“to show that the errors had some conceivable effect on

the outcome of the proceeding.” Id. at 693. 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.

Richter, 562 U.S. at 104 (internal citations modified). 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 v. Hall, 592 F.3d 1144,

1163 (11th Cir. 2010). Since both prongs of the two-part Strickland test must

be satisfied to show a Sixth Amendment violation, “a court need not address

the performance prong if the petitioner cannot meet the prejudice prong, and

vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)).

As stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed.” 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 105. 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 (2009) (quotation marks omitted). If there is

“any reasonable argument that counsel satisfied

Strickland’s deferential standard,” then a federal

court may not disturb a state-court decision denying

the claim. Richter, 562 U.S. at 105.

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

citations modified). 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 we 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, Fundora-Martinez alleges his trial counsel was

ineffective when he failed to move for judgment of acquittal as to counts one

through seven based on a double jeopardy violation. Petition at 15. He argues

that knowingly participating in an intentional motor vehicle crash, as alleged

in counts one through seven, is a lesser-included offense of organized fraud, as

alleged in count fifteen, requiring reversal of his convictions on counts one

through seven. Id. at 15-17.

Fundora-Martinez raised this claim as ground one of his Rule 3.850

Motion. Doc. 8-11 at 19-21. In denying relief, the postconviction court stated in

pertinent part:

Here, Defendant avers that knowingly

participating in an intentional motor vehicle crash is

a lesser-included offense of organized fraud. As such,

Defendant contends that the elements of organized

fraud wholly subsume the elements of knowingly

participating in an intentional motor vehicle crash.

Defendant believes that if Defense Counsel had based

his motion for judgment of acquittal on this double

jeopardy argument, the Court would have granted the

motion.

Defendant’s argument fails on the merits

because each offense contains at least one distinct

element. See § 817.234(9), Fla. Stat. (setting forth the

elements for knowingly participating in an intentional

motor vehicle crash); § 817.034, Fla. Stat. (identifying

the elements for organized fraud). And contrary to

what Defendant asserts in his motion, knowingly

participating in an intentional motor vehicle crash is

not a lesser-included offense of organized fraud. See

Fla. Std. Jury Instr. (Crim.) 20.19 (the lesser-included

offenses of organized fraud are grand theft and petit

theft); Cooks v. State, 249 So. 3d 774, 777 (Fla. 1st

DCA 2018).

Because there is no double jeopardy violation in

this case, Defense Counsel did not provide ineffective

assistance when he failed to challenge Defendant’s

convictions on double jeopardy grounds. See Whitted

v. State, 992 So. 2d 352, 353 (Fla. 4th DCA 2008)

(“Counsel was not ineffective for failing to file a motion

sure to be denied.”). Moreover, Defendant already

raised his double jeopardy argument in his direct

appeal. The First DCA affirmed Defendant’s

convictions and sentences.

Id. at 92 (record citations omitted). The First DCA per curiam affirmed the

denial of relief without a written opinion. Doc. 8-14.

To the extent that the First DCA decided the claim on the merits,4 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, Fundora-Martinez is not

entitled to relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Fundora-Martinez’s ineffectiveness claim is without

4 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 125-26.

merit. To prove the offense of knowingly participating in an intentional motor

vehicle crash, the State had to prove Fundora-Martinez “organized, planned or

knowingly participated in an intentional motor vehicle crash or a scheme to

create documentation of a motor vehicle crash that did not occur,” and “[h]e did

so for the purpose of making a motor vehicle tort claim or claim for personal

injury [protection] benefit.” Doc. 8-1 at 354; Doc. 8-3 at 670; Fla. Stat. §

817.234(9). To prove the offense of organized fraud, the State had to

demonstrate that Fundora-Martinez: (1) “engaged in a scheme to defraud,”

meaning “a systematic, ongoing course of conduct with intent to defraud one

or more persons, or with intent to obtain property from one or more persons by

false or fraudulent pretenses, representations, or promises or willful

misrepresentations of a future act”; and (2) thereby obtained property, i.e.,

“anything of value,” either “temporarily or permanently.” Doc. 8-1 at 355; Doc.

8-3 at 670-71; Fla. Stat. §§ 817.034(3)(b)-(c), (4)(a). Further, when the two

elements of organized fraud are satisfied, the jury must also determine the

aggregate value of the property obtained, which in this case was determined to

be over $50,000. Doc. 8-1 at 355; Doc. 8-3 at 672; Fla. Stat. § 817.034(4)(a)(1).

Fundora-Martinez does not seem to dispute that the two offenses are

separate, see Memorandum at 5; Reply at 5; see also Doc. 8-4, as he admits

that organized fraud requires additional elements, namely, that there is “a

systematic, ongoing course of conduct with intent to defraud . . . or with intent

to obtain property,” and that property actually is obtained as a result of the

scheme. Fla. Stat. § 817.034(4)(a); Pizzo v. State, 945 So. 2d 1203, 1207 (Fla.

2006) (citing Cherry v. State, 592 So. 2d 292, 295 (Fla. 2d DCA 1991)). As such,

“separate convictions for these two offenses are authorized unless the offenses

fit within one of the three exceptions in section 775.021(4)(b).” Valdes v. State,

3 So. 3d 1067, 1071 (Fla. 2009). Fundora-Martinez argues the third exception

in section 775.021(4)(b) applies, specifically, that the offense of knowingly

participating in an intentional motor vehicle crash is a lesser-included offense

the statutory elements of which are subsumed by the offense of organized

fraud.

However, as the postconviction court observed, knowingly participating

in an intentional motor vehicle crash is not a lesser-included offense of

organized fraud. See Fla. Std. Jury. Instr. (Crim.) 20.19 (Organized Fraud).

The lesser-included offenses of organized fraud are grand theft and petit theft.

See id.; Pizzo, 945 So. 2d at 1207 (finding that “grand theft is a lesser offense

of organized fraud”); Cooks, 249 So. 3d at 777 (“Grand theft (both second and

third degrees) and petit theft (both first and second degrees) are necessarily

lesser included offenses of scheme to defraud.”); see also Doc. 8-3 at 673-76

(instructing the jury that “[t]he lesser crime[] indicated in the definition of

organized fraud is theft” and listing the two elements of theft).5

Accordingly, counsel was not deficient for failing to move for judgment of

acquittal based on the alleged double jeopardy violation. See Diaz v. Sec’y for

the Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005) (holding counsel cannot

be ineffective for failing to raise a meritless argument). However, assuming

arguendo deficient performance by counsel, Fundora-Martinez has not shown

any resulting prejudice. Even if the trial court would have vacated Fundora-

Martinez’s sentences on the second-degree felonies in counts one through

seven,6 there is no reasonable probability that his sentence on the first-degree

5 In his Reply, Fundora-Martinez concedes that the lesser-included offenses of

organized fraud are grand theft and petit theft, but argues, for the first time, that

knowingly participating in an intentional motor vehicle crash is a lesser-included

offense of grand theft. See Reply at 5-6. To the extent Fundora-Martinez attempts to

raise new claims in his Reply, such claims are not properly before the Court. See Rule

2(c), Rules Governing Section 2254 Cases (“The petition must: (1) specify all the

grounds for relief available to the petitioner . . . .”); Herring v. Sec’y, Dep’t of Corr.,

397 F.3d 1338, 1342 (11th Cir. 2005) (“As we repeatedly have admonished,

‘[a]rguments raised for the first time in a reply brief are not properly before a

reviewing court.’”) (collecting cases); see also Timson v. Sampson, 518 F.3d 870, 874

(11th Cir. 2008) (per curiam) (finding that a pro se litigant abandoned an issue that

was not raised in his initial brief as the court does “not address arguments raised for

the first time in a pro se litigant’s reply brief”). In any event, Fundora-Martinez’s

argument seems to be misplaced because he was not convicted of grand theft.

6 When double jeopardy challenges are successful, it appears the proper course

is to vacate the sentence on the lesser-included offense. See Cooks, 249 So. 3d at 777

felony in count fifteen would have been more favorable. The first-degree felony

conviction in count fifteen, which was based on a finding that Fundora-

Martinez obtained property in the aggregate amount of $50,000 or more, is

punishable by a term of imprisonment not exceeding thirty years as provided

in Florida Statute section 775.082 and a fine not exceeding $10,000 as provided

in section 775.083(1)(b). See Fla. Stat. § 817.034(4)(a)(1); Doc. 8-1 at 458-60,

470. Also, if the trial court would have proceeded to impose the original

sentence as to count fifteen, it carried the same fifteen-year term of

imprisonment as the concurrent sentences on counts one through seven. As

such, Fundora-Martinez has not shown a reasonable probability that the

outcome of the proceedings would have been more favorable to him. Having

failed to show either deficient performance or resulting prejudice, his

ineffectiveness claim fails. Therefore, Ground One is denied.

B. Ground Two

In Ground Two, Fundora-Martinez contends his trial counsel was

ineffective when he advised him “to reject two favorable plea offers by

(vacating the sentence on the scheme to defraud offense and remanding for

preparation of a corrected scoresheet, entry of a corrected judgment, and

resentencing); Cherry, 592 So. 2d at 295 (vacating the lesser offenses of grand theft

and remanding for resentencing on the RICO, organized fraud, and three remaining

grand theft convictions).

promising a win at trial.” Petition at 18. Fundora-Martinez raised this claim

as grounds four and five of his Rule 3.850 Motion. Doc. 8-11 at 27-31. In

denying relief, the postconviction court stated as follows:

In Ground Four, Defendant claims that Defense

Counsel erroneously advised him to reject an alleged

plea offer from the State that would have allowed

Defendant to receive a ten-year term of probation

rather than prison time. And in Ground Five,

Defendant claims that Defense Counsel erroneously

advised him to reject a plea offer from the State that

would have allowed Defendant to receive a five-year

prison sentence. The record conclusively refutes

Defendant’s claims.

The first on-the-record discussion of plea

negotiations occurred on July 29, 2016. At that time,

both the State and the Defense agreed that no plea

offer existed. At the final pre-trial conference, the

Court conducted a thorough inquiry into the status

and history of any plea offers in the case. The State

acknowledged that it discussed the possibility of

Defendant pleading guilty in exchange for a five-year

prison sentence followed by a term of probation. The

State indicated that the five-years-plus-probation

discussions were not a formal offer because Defendant

had rejected the State’s previous formal offers.

Defense Counsel stated that his client was not

inclined to accept the five-years-plus-probation

sentence. Defense Counsel reported that Defendant

would agree to a two-year prison sentence (i.e., a

sentence that would require no additional time in

confinement because of Defendant’s jail credit), but

that the State had rejected that offer. Defense Counsel

affirmed that he had discussed the applicable

sentencing guidelines with his client and that his

client understood that each of the State’s plea offers

would allow him to serve fewer years in prison than

what the guidelines provided. Defense Counsel

expressed that Defendant did not want to plead guilty

because Defendant “is a very firm believer in the

justice system.” Defendant had told Defense Counsel

that he had not experienced the rights of the American

judicial system – such as the right to a presumption of

innocence and the right to make the State prove its

case beyond a reasonable doubt – in his previous

country and that he wanted to take advantage of those

rights in this case. The Court expressly noted that it

was possible the jury would ultimately find Defendant

guilty at trial.

The Court conducted a sworn colloquy with

Defendant. Defendant told the Court, “Thank you very

much for the opportunity to take this case to trial.

Thank you.” Defendant confirmed that he had offered

to plead guilty in exchange for a time-served sentence

(followed by probation), but that the State had rejected

his offer. In making this confirmation, Defendant

again volunteered that he believed in the American

judicial system. He expressed that he did not want to

serve prison time because he desired to be with his

family, which included two sick children. Defendant

further acknowledged the State was willing to resolve

his case for a five-year prison sentence (with

Defendant receiving more than two years of jail credit)

followed by a term of probation. Defendant agreed

that, in the absence of a downward departure, the

Court could not sentence him to fewer than fourteen

years in prison if the jury found Defendant guilty at

trial. After the sworn colloquy, the State informed the

Court that it would not engage in any more plea

negotiations and the parties agreed the case would

proceed to trial.

Thus, the record shows the State was not

amenable to any plea agreement that did not require

Defendant to serve prison time (such as the probation-

only sentence Defendant alleges in Ground Four).

Furthermore, the record reflects that Defendant would

not agree to any offer that required prison time (such

as the five-year offer Defendant cites in Ground Five)

because he believed in the American judicial system,

maintained he was innocent of the charged offenses,

and anticipated that he would prevail at trial.

Defendant took this position after the Court apprised

him of the potential consequences he faced if he took

his case to trial and lost. The record shows Defendant’s

rejection of any offer that called for prison time beyond

what his jail credit would cover was not born out of any

misadvice from his lawyer, but was instead rooted in

(1) his desire to avoid prison time and to remain with

his family and (2) his innate confidence that, in light

of his constitutional rights, he would prevail at trial.

Thus, the record conclusively refutes the

allegations contained in Grounds Four and Five of

Defendant’s motion. See Bishop v. State, 219 So. 3d 83,

84 (Fla. 4th DCA 2017) (per curiam); Kelley v. State,

109 So. 3d 811, 812-13 (Fla. 1st DCA 2013); Henry v.

State, 920 So. 2d 1245, 1246 (Fla. 5th DCA 2006). As

such, the Court denies Grounds Four and Five.

Id. at 95-97 (record citations omitted; other citations modified). The First DCA

per curiam affirmed the denial of relief without a written opinion. Doc. 8-14.

To the extent that the First 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, Fundora-Martinez is not

entitled to relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Fundora-Martinez’s ineffectiveness claim is without

merit because the record refutes it. For example, at the February 3, 2016

pretrial conference,7 when the trial court inquired about any offers made by

the State, the State responded that “there was an offer of seven years, but it

expired a while ago,” and while there had been “some discussions about

resolving” the case, the parties were “too far apart.” Doc. 8-2 at 21-22. Further,

in a July 21, 2016 letter sent to the trial judge, Fundora-Martinez stated he

declined the State’s offer of a four-year term of imprisonment “not thinking it

[was] proper” and, instead, made a counteroffer of eighteen months, which the

State declined. Doc. 8-1 at 240.

7 It appears the postconviction court was actually referring to the February 3,

2016, pretrial conference when it mistakenly cited the date of July 29, 2016.

Then, at the July 19, 2017 final pretrial conference, after the trial court

advised Fundora-Martinez that counts one through six each carried a

sentencing range of two to fifteen years in prison and count fifteen was

punishable by up to thirty years in prison, the following exchange took place:

THE COURT: Mr. Licandro, is there currently a

State offer?

MR. LICANDRO: Your Honor, we had discussed

last week about Mr. Fundora potentially pleading to

five years followed by probation. That was what I

explained to Mr. Goodwin was not a formal offer

because . . . there had been several rejections of

previous offers. But I basically said to Mr. Goodwin, if

you could get Mr. Fundora to do five years followed by

probation, the State would probably agree to that,

which is less than what the guidelines are.

But that -- any reciprocation has never been

communicated to me from Mr. Fundora.

THE COURT: But basically that’s not actually a

State offer, but it is an invitation to the defense to

make that offer --

MR. LICANDRO: Right.

THE COURT: -- and you would certainly

consider it.

MR. LICANDRO: Correct.

THE COURT: That has been discussed with

your client?

MR. GOODWIN: Yes, Your Honor, I did discuss

that with my client and he was disinclined to make

that particular offer.

There was a previous defense offer tendered of

two years followed by an indeterminate term of

probation that we discussed, but that was not accepted

by the State.

THE COURT: Okay.

MR. GOODWIN: Your Honor, I’m just double

checking my math, but it looks like I calculated Mr.

Fundora’s guidelines to be 168 months in prison,

which equates to exactly 14 years.

So the offer that has been conveyed to him or the

one that I most recently said I would entertain was

considerably less than what his guidelines called for.

And all the other previous offers in this case, which he

rejected, had been less as well.

. . . .

THE COURT: . . . . Sir, did you have a chance to

meet with your client about what the guidelines are?

MR. GOODWIN: Yes, Your Honor.

I explained the guidelines. I told him that after

trial should he be convicted on all counts, that the

minimum sentence he would be looking at would be --

the minimum guidelines, 14 years.

I explained that to him. I also explained to him

about the offer of the five years with some --

THE COURT: Or the invitation for the offer.

MR. GOODWIN: The invitation for the offer,

yes, Your Honor. I explained that to him.

Mr. Martinez was very clear to me that he, much

like many other people who have immigrated to the

United States, is a very firm believer in the justice

system, the judicial system of the United States. He

understands that the State has the burden of proof

and that he is not guilty until proven [guilty]. . . .

And presumed innocent until --

THE COURT: If and when a jury says otherwise,

which might happen. It might not.

MR. GOODWIN: Exactly. And he has indicated

that . . . he has not had the privilege of those rights in

the past. He does have those rights now and wishes to

exercise them.

THE COURT: Absolutely. . . .

So to the defendant, sir, do you understand that

you have a constitutional right to a jury trial which is

a right that is going to be protected in this courtroom?

Do you understand that, sir?

THE DEFENDANT: Yes. Thank you very much

for the opportunity to take this to trial. Thank you.

. . . .

THE COURT: Okay. So you understand, sir,

what I heard from your lawyer is that you made the

State an offer of two years followed by some probation,

which the State rejected. You’re aware of that, sir?

THE DEFENDANT: Yes. I believe in the system

of the United States.

. . . .

THE COURT: . . . . So you made an offer of two

years followed by probation that was rejected by the

State, and you’re aware of that, correct?

THE DEFENDANT: Yes. 28 months and some

probation, which I will do because I have two sick

children.

. . . .

MR. GOODWIN: Well, Your Honor, the offer

was time served and I think he has got 28 months.

. . . .

THE COURT: If you increase that offer to five

years with credit for the time you’ve served, which is

currently . . . 2.3 years, in or about, . . . the State would

accept that offer with some probation to follow and the

case would be over with. Do you understand that?

THE DEFENDANT: Yes.

. . . . I would prefer to have a little more

probation but being allowed to go home. I don’t mind

the probation, but I would be with my family. That is

what I wish.

. . . .

MR. LICANDRO: Your Honor, just based on Mr.

Martinez’s rejection of the State’s latest efforts to

resolve this case, the State will no longer be

negotiating with Mr. Fundora-Martinez at all and his

only option at that point would be to plead to the Court

or just go to trial.

Doc. 8-1 at 471-77, 482-83.

Based on the foregoing, Fundora-Martinez has failed to carry his burden

of showing that it was counsel’s deficient performance that caused him to reject

the State’s plea offers. Indeed, the record demonstrates that counsel fulfilled

his responsibility to provide his client with the information necessary to make

an informed decision and it was Fundora-Martinez’s ultimate, conscious

decision to proceed to trial. See Missouri v. Frye, 566 U.S. 134, 145 (2012)

(holding that “as a general rule, 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”); Jones v. Barnes, 463 U.S. 745, 751 (1983)

(recognizing that “the accused has the ultimate authority to make certain

fundamental decisions regarding the case, as to whether to plead guilty, waive

a jury, testify in his or her own behalf, or take an appeal”).8 Therefore, Ground

Two is denied.

8 The Court notes that Fundora-Martinez was represented by several different

attorneys during the pretrial and trial proceedings, as follows: (1) William L. Roelke,

Jr., between March 8, 2015 and February 3, 2016; (2) Belkis Plata between February

17, 2016 and July 29, 2016; (3) Octavius A. Holliday, Jr. between August 1, 2016 and

December 30, 2016; and (4) C. Darold Goodwin from December 30, 2016 through the

sentencing. See Doc. 8-1 at 64, 176-78, 201, 247, 249, 314-16; Doc. 8-2 at 22, 40, 48-

49. While Fundora-Martinez argues that attorney Holliday’s advice “to reject the two

State plea offers was patently unreasonable,” Petition at 19, there is no record of such

offers made by the State during attorney Holliday’s representation. However, even

assuming these plea offers existed, there is no reasonable probability that Fundora-

Martinez would have accepted them, considering his desire to avoid prison time

(whereas at least one of the alleged plea offers included a five-year term of

C. Ground Three

In Ground Three, Fundora-Martinez alleges his trial counsel was

ineffective “for failing to investigate and call exculpatory witness Alex Garcia

at trial.” Petition at 23. He raised this claim as ground three of his Rule 3.850

Motion. Doc. 8-11 at 24-27. In denying relief, the postconviction court stated in

pertinent part:

At the close of the State’s case, the Court

conducted a sworn colloquy with Defendant. During

that colloquy, Defendant swore there were no

additional witnesses he wished to call or additional

evidence he wished to present. It is impossible to

reconcile the allegations Defendant makes in Ground

Three of his motion with the sworn assertions he made

to the Court. And Defendant may not obtain

postconviction relief through contradicting his sworn

statements to the Court. See Kelley, 109 So. 3d at 812-

13 (“A rule 3.850 motion cannot be used to go behind

representations the defendant made to the trial court,

and the court may summarily deny post-conviction

claims that are refuted by such representations.”);

Henry, 920 So. 2d at 1246 (“Defendants are bound by

the statements made by them under oath . . . .”).

Accordingly, the Court denies Ground Three of

Defendant’s motion.

Id. at 94 (record citations omitted; other citations modified). The First DCA per

curiam affirmed the denial of relief without a written opinion. Doc. 8-14.

imprisonment), his prior rejection of an alleged four-year-imprisonment offer, and his

unmistakable desire to proceed to trial.