Owens v. Secretary, Department of Corrections (Hernando County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GREGORY OWENS,

Petitioner,

v. Case No. 8:24-cv-717-WFJ-NHA

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

Gregory Owens, a Florida prisoner, initiated this action by filing a pro se petition

for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). Respondent filed a response

opposing the petition. (Doc. 7). Although afforded the opportunity, Mr. Owens did not file

a reply. After careful review, the petition is DENIED.

I. Background

Mr. Owens was charged in five separate cases with the following offenses: one

count of driving while license suspended, one count of possession of a firearm by a felon,

three counts of sale of a controlled substance, three counts of possession with intent to sell

a controlled substance, three counts of unlawful use of a two-way communications device,

and three counts of possession of drug paraphernalia. (Doc. 7-1, Exs. 1, 21-24). Mr. Owens

entered an open plea to each charge. (Id., Ex. 4; id., Ex. 9, at 8). The trial court found that

he qualified as a habitual felony offender (“HFO”) and sentenced him to a total term of

thirty years’ imprisonment.1 (Id., Ex. 8, at 56-68). Mr. Owens filed a notice of appeal, but

he ultimately agreed to dismiss the appeal. (Id., Exs. 6-7, 12, 29).

While the appeal was pending, Mr. Owens moved to correct a sentencing error under

Florida Rule of Criminal Procedure 3.800(b). (Id., Ex. 10). He argued that the trial court

improperly sentenced him as an HFO on the three counts of possession with intent to sell

a controlled substance. (Id.) The court granted the motion. (Id., Ex. 11, at 3). It removed

the HFO designation from the three counts and reduced the sentence for each from thirty

to fifteen years. (Id.) Because the other counts were unaffected, Mr. Owens’s total sentence

remained thirty years’ imprisonment.

Next, Mr. Owens sought postconviction relief under Florida Rule of Criminal

Procedure 3.850. (Id., Exs. 13, 17). The postconviction court denied relief, and the

appellate court affirmed without opinion. (Id., Exs. 14, 16, 18, 20). This federal habeas

petition followed. (Doc. 1).

II. Standards of Review

A. AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this

proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

can be granted only if a petitioner is in custody “in violation of the Constitution or laws or

1 Specifically, Mr. Owens was sentenced to concurrent terms of thirty years’ imprisonment for possession

of a firearm by a felon, thirty years’ imprisonment for each count of sale of a controlled substance, thirty

years’ imprisonment for each count of possession with intent to sell a controlled substance, ten years’

imprisonment for driving while license suspended, ten years’ imprisonment for each count of unlawful use

of a two-way communications device, and time served for possession of drug paraphernalia. (Doc. 7-1, Ex.

10, at 1-3). For each offense except possession of drug paraphernalia, Mr. Owens was sentenced as an HFO.

(Id.)

treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal

habeas relief cannot be granted on a claim adjudicated on the merits in state court unless

the state court’s adjudication:

(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.

A decision is “contrary to” clearly established federal law “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.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves

an “unreasonable application” of clearly established federal law “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.

AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.

685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s application

of clearly established federal law is objectively unreasonable, and . . . an unreasonable

application is different from an incorrect one.” Id. at 694; see also Harrington v. Richter,

562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court,

a state prisoner must show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.”).

The appellate court in Mr. Owens’s case affirmed the denial of postconviction relief

without discussion. This decision warrants deference under § 2254(d)(1) because “the

summary nature of a state court’s decision does not lessen the deference that it is due.”

Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). When a state appellate court issues

a silent affirmance, “the federal court should ‘look through’ the unexplained decision to

the last related state-court decision that does provide a relevant rationale” and “presume

that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018).

B. Exhaustion of State Remedies; Procedural Default

A federal habeas petitioner must exhaust his claims in state court before presenting

them in his federal habeas petition. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526

U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act

on his claims before he presents those claims to a federal court in a habeas petition.”). The

exhaustion requirement is satisfied if the petitioner fairly presents his claim in each

appropriate state court and alerts that court to the federal nature of the claim. Picard v.

Connor, 404 U.S. 270, 275-76 (1971).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default which

will bar federal habeas relief, unless either the cause and prejudice or the fundamental

miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th

Cir. 2001). A fundamental miscarriage of justice occurs in an extraordinary case where a

constitutional violation has probably resulted in the conviction of someone who is actually

innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson v. Campbell, 353 F.3d 880,

892 (11th Cir. 2003). To establish cause for a procedural default, a petitioner “must

demonstrate that some objective factor external to the defense impeded the effort to raise

the claim properly in state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999).

A petitioner demonstrates prejudice by showing that “there is at least a reasonable

probability that the result of the proceeding would have been different” absent the

constitutional violation. Henderson, 353 F.3d at 892.

C. Ineffective Assistance of Counsel

Mr. Owens alleges ineffective assistance of trial counsel. Ineffective-assistance-of-

counsel claims are analyzed under the test established in Strickland v. Washington, 466

U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and

resulting prejudice. Id. at 687. Deficient performance is established if, “in light of all the

circumstances, the identified acts or omissions [of counsel] were outside the wide range of

professionally competent assistance.” Id. at 690. However, “counsel is strongly presumed

to have rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id.

Mr. Owens must show that counsel’s alleged error prejudiced the defense because

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside

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

691. To demonstrate prejudice, Mr. Owens must show “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal

habeas review because “[t]he standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at

105 (internal quotation and citations omitted); see also Pooler v. Sec’y, Dep’t of Corr., 702

F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel

claim—which is governed by the deferential Strickland test—through the lens of AEDPA

deference, the resulting standard of review is doubly deferential.”). “The question [on

federal habeas review of an ineffective assistance claim] ‘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) (quoting Schriro v. Landrigan, 550 U.S. 465, 473

(2007)).

III. Discussion

A. Ground One, Sub-Claim A—Failure to Inform Mr. Owens of

Ineligibility for Gain Time and of Mandatory Minimum Sentence

Mr. Owens contends that trial counsel was ineffective for failing to inform him that,

as an HFO, he “would be ineligible for gain time.” (Doc. 1 at 5). He also faults counsel for

not advising him that he would be subject to a mandatory minimum sentence if he were

designated an HFO. (Id.) Furthermore, counsel was allegedly deficient for failing to object

when the trial court neglected to inform Mr. Owens of these matters. (Id.)

The postconviction court reasonably rejected this claim. It began by addressing gain

time. According to the court, “eligibility or ineligibility for gain time is . . . a collateral

consequence of a plea.” (Doc. 7-1, Ex. 14, at 3). “Collateral consequences” include “those

matters not within the sentencing authority of the state trial court.” Padilla v. Kentucky,

559 U.S. 356, 364 (2010). Citing Florida law, the court held that “[c]ounsel cannot be found

deficient for failing to advise a defendant of a collateral consequence of a plea.” (Doc. 7-

1, Ex. 14, at 3). This ruling was neither “contrary to” nor “an unreasonable application” of

“clearly established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).

“‘[C]learly established Federal law’ for purposes of § 2254(d)(1) includes only the

holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” White v. Woodall,

572 U.S. 415, 419 (2014). The Supreme Court has repeatedly cautioned lower courts

against framing its decisions at “a high level of generality.” Nevada v. Jackson, 569 U.S.

505, 512 (2013); see also Brown v. Davenport, 596 U.S. 118, 136 (2022) (noting that

“holdings that speak only at a high level of generality” “cannot supply a ground for relief”

under AEDPA). Accordingly, “it is not ‘an unreasonable application of’ ‘clearly

established Federal law’ for a state court to decline to apply a specific legal rule that has

not been squarely established by [the Supreme] Court.” Knowles v. Mirzayance, 556 U.S.

111, 122 (2009); see also Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1288 (11th

Cir. 2012) (“The Supreme Court has reiterated, time and again, that, in the absence of a

clear answer—that is, a holding by the Supreme Court—about an issue of federal law, we

cannot say that a decision of a state court about that unsettled issue was an unreasonable

application of clearly established federal law.”).

“No clearly established law addresses whether [Mr. Owens’s] counsel rendered

constitutionally deficient performance by failing to properly advise him about his [gain]-

time credits before he pled guilty.” Hernandez v. Grounds, 628 F. App’x 541, 541 (9th Cir.

2016). “Florida law considers gain time to be a collateral consequence of a plea.”

Lagerstrom v. Sec’y, Dep’t of Corr., No. 20-80531-CIV, 2023 WL 2434218, at *8 (S.D.

Fla. Feb. 1, 2023) (collecting cases), adopted by 2023 WL 2071473 (S.D. Fla. Feb. 17,

2023). And the Supreme Court has yet to address whether “there may be circumstances

under which advice about a matter deemed collateral violates” the right to effective

assistance of counsel. Chaidez v. United States, 568 U.S. 342, 350 (2013). Without

Supreme Court authority on point, Mr. Owens cannot show that the postconviction court

unreasonably applied federal law by finding that counsel was not required to inform him

of his ineligibility for gain time. See Woodall, 572 U.S. at 426 (“Section 2254(d)(1)

provides a remedy for instances in which a state court unreasonably applies this Court’s

precedent; it does not require state courts to extend that precedent or license federal courts

to treat the failure to do so as error.”); Lagerstrom, 2023 WL 2434218, at *8 (“[N]umerous

courts have rejected habeas petitions arguing that trial counsel rendered ineffective

assistance by failing to explain, predict, or give advice regarding Florida gain time

calculations prior to the entry of a plea.” (collecting cases)).

The postconviction court also rejected Mr. Owens’s argument that counsel failed to

inform him of the “minimum mandatory sentences that would result from his plea.” (Doc.

7-1, Ex. 14, at 3). The court explained that Mr. Owens “was not sentenced to serve any

minimum mandatories.” (Id.) This ruling was correct. Mr. Owens’s claim rests on a

misunderstanding of HFO sentencing. The “HFO provision allows courts to sentence a

defendant who qualifies as an HFO to an extended term of imprisonment.” Foulks v. State,

306 So. 3d 1178, 1185-86 (Fla. 3d DCA 2020) (emphasis in original). Thus, the HFO

statute “increase[s] the maximum sentence that can be imposed,” id., but “it does not

require a mandatory minimum sentence.” Peek v. State, 143 So. 3d 1101, 1102 (Fla. 5th

DCA 2014). For example, a second-degree felony “would normally carry a maximum

sentence of fifteen years’ imprisonment, but the HFO statute sets a maximum sentence at

thirty years’ imprisonment.” Peek, 143 So. 3d at 1101. Because Mr. Owens was not subject

to—and did not receive—a mandatory minimum sentence, counsel was not deficient for

failing to advise him on the matter.2

B. Ground One, Sub-Claim B—Failure to Seek Withdrawal of Plea and

Request Psychiatric Examination

Mr. Owens contends that trial counsel provided ineffective assistance by failing to

“move to withdraw the plea and request a psychiatric examination.” (Doc. 1 at 5). Before

he pled guilty, Mr. Owens underwent a court-ordered psychological evaluation. (Doc. 7-1,

Ex. 3). The evaluation report concluded that, although he had “a history of mental health

2 To the extent that Mr. Owens faults counsel for allowing him to plead guilty while “on medication,” the

Court addresses this issue in connection with Ground One, Sub-Claim B. (Doc. 1 at 5).

difficulty and chronic/severe substance dependence,” Mr. Owens was “competent to stand

trial.” (Id. at 5). According to the report, Mr. Owens “communicated with coherence and

relevance,” and he understood “the concept of legal consequences”—including “what the

pleas of guilty, not guilty, and plea bargaining entail.” (Id. at 3-4). Based on this report, the

court found that Mr. Owens was competent to proceed. (Id., Ex. 2). During the plea hearing,

Mr. Owens acknowledged that he was “on medication,” but he affirmed that he understood

“what [was] going on” during the proceedings. (Id., Ex. 9, at 12-14). Counsel agreed that

Mr. Owens was “competent.” (Id. at 22).

Mr. Owens now contends that counsel should have requested “[a]nother evaluation”

and a “competency hearing” to “determine if he was competent to proceed [during] the

plea hearing.” (Doc. 1 at 6). In support, Mr. Owens asserts that “there was evidence

showing [his] incompetency throughout the proceedings.” (Id.)

Even under de novo review, this claim fails for lack of prejudice. To show prejudice

in this context, Mr. Owens must establish that “if his trial counsel had performed as he

[suggests], there is a reasonable probability that the trial judge would have determined that

[he] was incompetent to [proceed].” Oats v. Singletary, 141 F.3d 1018, 1025 (11th Cir.

1998). The test for determining competence is “whether a criminal defendant [1] has

sufficient present ability to consult with his lawyer with a reasonable degree of rational

understanding and [2] whether he has a rational as well as factual understanding of the

proceedings against him.” Drope v. Missouri, 420 U.S. 162, 171 (1975).

Mr. Owens fails to establish a reasonable probability that he “would have been

found incompetent” had counsel sought another evaluation or requested a competency

hearing. Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d 464, 480 (11th Cir. 2012). He

presents no evidence that a second evaluation would have led to a finding of incompetence,

nor does he explain how a hearing would have affected the court’s ruling. Moreover,

although he claims his medication “was affecting him,” (Doc. 1 at 6), Mr. Owens offers no

evidence that the medication “caused him to be confused and to lack understanding of the

proceedings under the legal standard of competence.” Sheley v. Singletary, 955 F.2d 1434,

1438 (11th Cir. 1992). Accordingly, Mr. Owens fails to meet his burden of “affirmatively

prov[ing] prejudice” from counsel’s alleged mishandling of the competency issue.3

Strickland, 466 U.S. at 693; see also Cox v. Sec’y, DOC, No. 2:11-cv-439-JES-UAM, 2013

WL 4734065, at *6 (M.D. Fla. Sept. 3, 2013) (no prejudice where petitioner “presented no

evidence that” he “would have been found incompetent to proceed” and “nothing in the

record indicate[d] that [he] was incompetent”).

C. Ground One, Sub-Claim C—Failure to Inform Mr. Owens of Driver’s

License Suspension

During sentencing, the trial court imposed “a mandatory six-month driver’s license

suspension on each one of the drug [counts].” (Doc. 7-1, Ex. 8, at 68). Mr. Owens faults

trial counsel for failing to inform him that his driver’s license would be suspended if he

pled guilty. (Doc. 1 at 6). According to Mr. Owens, he would have “proceeded to trial” had

he known about this penalty. (Doc. 7-1, Ex. 13, at 16).

3 Mr. Owens alleges that counsel “coerced [him] to accept the open plea,” but he offers no evidence to

support that assertion. (Doc. 1 at 5). To the contrary, Mr. Owens affirmed during the plea hearing that

nobody had “coerced [him] to enter [the] plea,” and that counsel was “doing a great job.” (Doc. 7-1, Ex. 9,

at 12, 14). Mr. Owens’s “unsubstantiated allegations in his federal petition fail to overcome the strong

presumption of verity afforded his sworn statements made during the plea colloquy.” Hartley v. Sec’y,

Dep’t of Corr., No. 8:08-cv-854-SDM-TBM, 2012 WL 682744, at *8 (M.D. Fla. Mar. 2, 2012).

The postconviction court reasonably rejected this claim for lack of “prejudice.” (Id.,

Ex. 14, at 5). To show prejudice in the context of a guilty plea, a petitioner must establish

“a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “Courts

should not upset a plea solely because of post hoc assertions from [the petitioner] about

how he would have pleaded but for his attorney’s deficiencies.” Lee v. United States, 582

U.S. 357, 369 (2017). Instead, the petitioner must “convince the court that a decision to

reject [a] plea [] would have been rational under the circumstances.” Diveroli v. United

States, 803 F.3d 1258, 1265 (11th Cir. 2015). Moreover, because AEDPA applies to this

claim, Mr. Owens must show that the postconviction court’s finding of no prejudice “was

so obviously wrong that its error lies beyond any possibility for fairminded disagreement.”

Mungin v. Sec’y, Fla. Dep’t of Corr., 89 F.4th 1308, 1317 (11th Cir. 2024).

Mr. Owens cannot meet this demanding standard. When he pled guilty, he was

forty-six years old. (Doc. 7-1, Ex. 9, at 11). Even without the HFO enhancements, he faced

a statutory maximum sentence of 125 years’ imprisonment. (Id., Ex. 36, at 14). Following

his plea, he received a total sentence of thirty years’ imprisonment. (Id., Ex. 8, at 56-68).

In these circumstances, there is no basis to conclude that counsel’s failure to inform Mr.

Owens about a six-month driver’s license suspension “was a decisive factor in his decision

to plead guilty.” Bethel v. United States, 458 F.3d 711, 719 (7th Cir. 2006). Indeed, the

temporary loss of a driver’s license is not the type of “particularly severe penalty” that

would ordinarily receive great weight in considering a plea. Lee, 582 U.S. at 370. In that

respect, it is unlike “deportation, . . . registration as a sex offender, civil commitment

proceedings, or the loss of a professional license.” Schwartz v. Jones, No. 17-CV-61752,

2019 WL 8060133, at *7 (S.D. Fla. Dec. 18, 2019), adopted by 2020 WL 905234 (S.D.

Fla. Feb. 25, 2020), aff’d, 842 F. App’x 442 (11th Cir. 2021). Mr. Owens’s “mere

allegation that he would have insisted on trial but for his trial counsel’s errors . . . is

ultimately insufficient to entitle him to relief.” United States v. Clingman, 288 F.3d 1183,

1186 (10th Cir. 2002).

D. Ground One, Sub-Claim D—Failure to Object to “Misstatement of

Law”

Mr. Owens faults trial counsel for failing to object to the trial court’s alleged

“misstatement of law” during both the plea hearing and sentencing. (Doc. 1 at 7).

According to Mr. Owens, the court “operated under the [mistaken] assumption” that HFO

sentencing is “mandatory” rather than “discretionary.” (Id.) In support, he points to the

following excerpt from the plea hearing: “[T]he Court has to consider whether or not [Mr.

Owens] qualified as an HFO. The statute is quite clear that I shall sentence him as an HFO

unless I find sufficient basis not to sentence him as an HFO, which just takes him out from

under on the HFO.” (Doc. 7-1, Ex. 9, at 4; see also Doc. 7-1, Ex. 13, at 17). Mr. Owens

also cites the following statement from sentencing: “At this time, the Court determines that

[Mr. Owens] meets the criteria for imposing such a sanction [i.e., HFO status]. Based on

that, the Court must sentence the defendant as a habitual felony offender unless the Court

makes separate findings that he should not be sentenced as such.” (Id., Ex. 8, at 60-61; see

also id., Ex. 13, at 17).

As the postconviction court explained, the trial court “did not misstate the law and

counsel had no basis to object.” (Id., Ex. 14, at 6). As noted above, the “HFO provision

allows courts to sentence a defendant who qualifies as an HFO to an extended term of

imprisonment.” Foulks, 306 So. 3d at 1185-86 (emphasis omitted). In other words, the

HFO statute “increase[s] the maximum sentence that can be imposed.” Peek, 143 So. 3d at

1102. “If the defendant is found to qualify for HFO sentencing, the trial court must sentence

the defendant as a habitual felony offender”—that is, as an offender subject to an increased

statutory maximum—“unless the court finds that such sentence is not necessary for the

protection of the public.” State v. McMahon, 94 So. 3d 468, 476 (Fla. 2012). The court in

Mr. Owens’s case correctly described (and followed) this procedure. Therefore, the

postconviction court reasonably concluded that counsel was not deficient for failing to raise

Mr. Owens’s meritless objection.4 See Freeman v. Atty. Gen., 536 F.3d 1225, 1233 (11th

Cir. 2008) (noting that “[a] lawyer cannot be deficient for failing to raise a meritless

claim”).

E. Ground One, Sub-Claim E—Allowing Mr. Owens to Accept “Illegal

Sentences”

Mr. Owens argues that trial counsel was ineffective for “allowing [him] to accept

an illegal sentence for the three [drug possession charges] that were found later to not

[qualify for] HFO [sentencing].” (Doc. 1 at 7). As noted above, the trial court sentenced

Mr. Owens as an HFO to thirty years’ imprisonment for three counts of possession with

4 There is no indication that the trial court mistakenly believed the HFO statute required it to impose

mandatory minimum sentences.

intent to sell a controlled substance. (Doc. 7-1, Ex. 10, at 2-3). Without the HFO

designation, the statutory maximum for each possession count would have been fifteen

years’ imprisonment. President v. State, 82 So. 3d 889, 890 (Fla. 4th DCA 2011). While

his direct appeal was pending, Mr. Owens filed a motion to correct sentencing error,

arguing that he was improperly sentenced as an HFO on the three possession counts. (Doc.

7-1, Ex. 10). The court granted the motion, removed the HFO designation from the three

counts, and reduced the sentence for each from thirty to fifteen years. (Id., Ex. 11, at 3).

Despite this reduction, Mr. Owens’s total sentence remained thirty years’ imprisonment.

Specifically, he would continue to serve concurrent terms of thirty years’ imprisonment for

sale of a controlled substance,5 thirty years’ imprisonment for possession of a firearm by a

felon, ten years’ imprisonment for driving while license suspended, and ten years’

imprisonment for unlawful use of a two-way communications device. (Id., Ex. 10, at 1-3).

Mr. Owens now contends that if counsel had “done her due diligence in finding [the

HFO] error” before he pled guilty, he “wouldn’t have accepted the plea” and would have

“[taken] his chances at trial.” (Doc. 1 at 7). The postconviction court reasonably concluded

that Mr. Owens was not “prejudiced” by this error. (Doc. 7-1, Ex. 14, at 7). Mr. Owens

was forty-six years old when the plea hearing took place. (Id., Ex. 9, at 11). Even without

the HFO enhancements, he was subject to a statutory maximum sentence of 125 years’

5 Under Florida law, “sale . . . of a controlled substance and possession with intent to sell that same substance

[are] separate offenses.” Garcia v. State, 552 So. 2d 1177, 1177 (Fla. 2d DCA 1989). HFO sentencing does

not apply to “possession with intent to sell.” Grene v. State, 702 So. 2d 510, 510 (Fla. 3d DCA 1996). But

the HFO statute does apply to the separate offense of sale of a controlled substance. See Moore v. State,

748 So. 2d 1094, 1095 (Fla. 3d DCA 2000) (“[T]he habitual offender statute does not prohibit

habitualization where the offense at conviction is sale of a controlled substance.”). Thus, the court lawfully

imposed the HFO-enhanced sentence of thirty years’ imprisonment for sale of a controlled substance.

imprisonment. (Id., Ex. 36, at 14). Mr. Owens thus faced the possibility of spending the

rest of his life in prison. Crucially, that possibility existed even if his maximum exposure

on each possession count was fifteen rather than thirty years. Because the statutory

maximum amounted to life in prison regardless of the HFO error, there is no basis to

conclude that the overstatement of Mr. Owens’s maximum exposure “was a decisive factor

in his decision to plead guilty.” Bethel, 458 F.3d at 719. Therefore, the postconviction court

reasonably found no prejudice.6 See Day v. Menard, No. 2:15-cv-234-CR-JMC, 2016 WL

6998629, at *7 (D. Vt. Sept. 27, 2016) (no prejudice from failure to seek dismissal of

assault charges before guilty plea because “even if [those] charges were dismissed . . . ,

[petitioner] still would have been facing multiple felony charges with a potential maximum

sentence of life as an habitual offender”), adopted by 2016 WL 7015709 (D. Vt. Nov. 30,

2016).

F. Ground One, Sub-Claim F—Failure to Inform Mr. Owens of “Viable

Defense”

Mr. Owens faults trial counsel for failing to inform him that he had a “viable

defense” to the “drug charges.” (Doc. 1 at 7). The charging documents alleged that Mr.

Owens possessed and sold fentanyl. (Doc. 7-1, Exs. 22-24). According to Mr. Owens, he

“did not know that the drugs he sold and possessed were fentanyl.” (Id., Ex. 13, at 24).

6 Respondent contends that Sub-Claims E, F, G, and I of Ground One are untimely. (Doc. 7 at 4). The Court

need not reach that issue because the claims fail on the merits. See Trussell v. Bowersox, 447 F.3d 588, 590

(8th Cir. 2006) (“[B]ecause neither the statute of limitations nor procedural default constitutes a

jurisdictional bar to our review, we shall, in the interest of judicial economy, proceed to the merits of [the]

petition.” (citation omitted)).

Instead, he thought they were heroin. (Id. at 26-27). Mr. Owens contends that his “lack of

knowledge” could have supplied an “affirmative defense” to the charges. (Id. at 26).

The postconviction court rejected this claim, finding no “deficiency on behalf of

counsel.” (Id., Ex. 14, at 7). It noted that both fentanyl and heroin “are controlled

substances, and [Mr. Owens] had the requisite knowledge that he was in possession of a

controlled substance.” (Id. at 7-8). According to the court, “[t]he fact that [Mr. Owens]

allege[d] that he was mistaken regarding the type of drug [did] not negate his knowledge

and intent to possess and sell a controlled substance.” (Id. at 8). Thus, “because this would

not have been a defense to the charges, [Mr. Owens] fail[ed] to establish that counsel was

deficient in failing to advise him of the” proposed defense. (Id.)

This ruling was reasonable. “[A]lthough the issue of ineffective assistance . . . is one

of constitutional dimension,” a federal court “must defer to the state’s construction of its

own law when the validity of the [ineffective assistance] claim . . . turns on state law.”

Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017). Such deference is required

here. The postconviction court held that, as a matter of Florida law, Mr. Owens’s alleged

lack of knowledge “would not have been a defense to the charges.” (Doc. 7-1, Ex. 14, at

8). Thus, the postconviction court “already has told us how the issue[] would have been

resolved under Florida state law had [counsel] done what [Mr. Owens] argues [she] should

have done.” Herring v. Sec’y. Dep’t of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005).

That determination is binding on federal habeas review. See Pietri v. Fla. Dep’t of Corr.,

641 F.3d 1276, 1284 (11th Cir. 2011) (state court ruling that proposed defense “was not

cognizable under Florida law” was “binding on federal court[]” reviewing Strickland

claim); Melendez v. Sec’y, Dep’t of Corr., No. 8:19-cv-1905-MSS-TGW, 2022 WL

2904872, at *14 (M.D. Fla. July 22, 2022) (“Whether [petitioner] could have asserted a

viable prescription defense in a pretrial motion or at trial is an issue of state law, and a state

court’s determination of state law receives deference in federal court.”).

Because the postconviction court “authoritatively decided as a matter of [Florida]

law” that the proposed defense would have failed, the remainder of the analysis is

straightforward. Calhoun v. Warden, Baldwin State Prison, 92 F.4th 1338, 1351 (11th Cir.

2024). Counsel “is not constitutionally ineffective for failing to advise [her client] about a

meritless defense.” Ragland v. Sec’y, DOC, No. 2:16-cv-457-JES-MRM, 2019 WL

4600399, at *8 (M.D. Fla. Sept. 23, 2019). Therefore, the postconviction court reasonably

concluded that counsel was not deficient for failing to pursue Mr. Owens’s meritless

argument.

G. Ground One, Sub-Claim G—Mistaken Sentencing Prediction

Mr. Owens alleges that counsel “was ineffective for misadvising him that he would

receive ten years at sentencing.” (Doc. 1 at 8). The postconviction court rejected this claim

for lack of “prejudice.” (Doc. 7-1, Ex. 14, at 8). It noted that, during the plea hearing, Mr.

Owens “was asked whether he understood that by entering an open plea there was no

promise or guarantee as to the outcome of the case.” (Id.) Mr. Owens “confirmed he

understood.” (Id.) Moreover, Mr. Owens “was advised of the maximum sentence that he

could receive.” (Id.) Thus, in the court’s view, “regardless of whether counsel misadvised

[Mr. Owens] that he would get a ten-year sentence, the plea colloquy clearly establishe[d]

that [he] understood that there was no guarantee as to the sentence if he chose to enter a

plea.” (Id.) Despite this warning, Mr. Owens “chose to continue with his plea.” (Id.)

Therefore, the court held that he could not show prejudice from counsel’s alleged

misconduct. (Id.)

The rejection of this claim was reasonable. When counsel mistakenly promises a

certain sentencing outcome, a petitioner cannot show prejudice if he was advised during

the plea hearing of “the consequences of the plea agreement, range of punishment, and

sentencing contingencies.” United States v. Wilson, 245 F. App’x 10, 12 (11th Cir. 2007);

see also United States v. Carson, 32 F.4th 615, 622 (6th Cir. 2022) (“When an attorney

erroneously promises a certain sentencing outcome, a defendant cannot show prejudice if

he was accurately advised during the plea colloquy.”). During the plea hearing, the trial

court (1) informed Mr. Owens of the maximum sentence for each count, (2) confirmed that

he understood “there [were] no promises or guarantees as to what the sentence outcome

may be,” and (3) explained the other consequences of pleading guilty. (Doc. 7-1, Ex. 9, at

11-18). Thus, “[t]o the extent [counsel] may have expressly or implicitly promised a

guaranteed sentence or [to] the extent [Mr. Owens] perceived [her] advice about the

expected sentence’s length as such, the change of plea colloquy cured any such false

impression.” Inchierchiere v. Fla. Dep’t of Corr., No. 17-14260-CIV, 2019 WL 11718812,

at *15 (S.D. Fla. Apr. 2, 2019), adopted by 2019 WL 11718809 (S.D. Fla. May 31, 2019).

H. Ground One, Sub-Claim H—Cumulative Error

Mr. Owens contends that counsel’s alleged misconduct amounted to “cumulative

error.” (Doc. 1 at 8). “Under the cumulative error doctrine, a sufficient agglomeration of

otherwise harmless or nonreversible errors can warrant reversal if their aggregate effect is

to deprive the defendant of a fair trial.” Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d

1273, 1284 (11th Cir. 2014). A cumulative error claim “must fail,” however, where none

of the “individual claims of error” has “any merit.” Morris v. Sec’y, Dep’t of Corr., 677

F.3d 1117, 1132 (11th Cir. 2012). Here, each individual claim of ineffective assistance

lacks merit. Thus, Mr. Owens’s cumulative error claim necessarily fails.

I. Ground One, Sub-Claim I—Failure to Hold Resentencing Hearing with

Mr. Owens Present

As noted above, while the direct appeal was pending, the trial court corrected a

sentencing error at Mr. Owens’s request. (Doc. 7-1, Ex. 11). Specifically, the court found

that Mr. Owens had been improperly sentenced as an HFO on the three counts of possession

with intent to sell a controlled substance. (Id. at 2). The court removed the HFO designation

from the three counts and reduced the sentence for each from thirty to fifteen years’

imprisonment. (Id. at 3). Because the remaining counts were unaffected, however, Mr.

Owens’s total sentence remained thirty years’ imprisonment. Mr. Owens now contends

that the court violated his constitutional rights by correcting the sentencing error “without

conducting a sentencing hearing [in Mr. Owens’s presence].” (Doc. 1 at 8).

Even under de novo review, this claim fails. “[A] correction of an illegal sentence

does not constitute a resentencing requiring the presence of the defendant, so long as the

modification does not make the sentence more onerous.” United States v. Jackson, 923

F.2d 1494, 1497 (11th Cir. 1991). Here, the court did not “impose a more onerous total

sentence than the original sentence.” United States v. Reynolds, No. 23-11405, 2023 WL

6475434, at *1 (11th Cir. Oct. 5, 2023). Instead, it “imposed the same total sentence” of

thirty years’ imprisonment. Id. Thus, Mr. Owens was not entitled to a resentencing hearing.

See United States v. Malol, 315 F. App’x 205, 208 (11th Cir. 2008) (“[Defendant] does not

need to be present at resentencing because the modification does not make the sentence

more onerous.”).

J. Ground Two—Failure to Hold Competency Hearing

Lastly, Mr. Owens contends that the trial court violated his right to due process by

failing to hold a competency hearing. (Doc. 1 at 10). Respondent correctly contends that

this claim is procedurally defaulted. (Doc. 7 at 6-7). Mr. Owens raised his due process

claim in a successive Rule 3.850 motion. (Doc. 7-1, Ex. 17, at 2-3). The postconviction

court held that the claim was “not cognizable under Rule 3.850” because it should have

been raised on direct appeal. (Id., Ex. 18, at 2; see also Watts v. State, 82 So. 3d 1215, 1216

n.1 (Fla. 2d DCA 2012) (“These two claims alleged that the trial court erred by failing to

have [defendant] examined by at least three mental health experts and by failing to hold a

competency hearing. Because these claims consist of allegations of trial court error, they

are procedurally barred [under Rule 3.850].”)).

Because “the procedural requirements of Florida’s Rule 3.850 constitute

independent and adequate state grounds,” Ground Two is procedurally defaulted. LeCroy

v. Sec’y, Fla. Dep’t Corr., 421 F.3d 1237, 1260 n.25 (11th Cir. 2005). To overcome the

default, Mr. Owens must show either cause and prejudice or a miscarriage of justice. See

Mincey v. Head, 206 F.3d 1106, 1135 (11th Cir. 2000) (“It is well-settled that federal

habeas courts may not consider claims that have been defaulted in state court . . . unless

the petitioner can show ‘cause’ for the default and resulting ‘prejudice,’ or ‘a fundamental

miscarriage of justice.’”). Mr. Owens fails to make the required showing. Thus, Ground

Two is barred from federal habeas review.

IV. Conclusion

Accordingly, the Court ORDERS:

1. Mr. Owens’s petition (Doc. 1) is DENIED.

2. The CLERK is directed to enter judgment against Mr. Owens and to CLOSE this

case.

3. Mr. Owens is not entitled to a certificate of appealability. A prisoner seeking a writ

of habeas corpus has no absolute entitlement to appeal a district court’s denial of his

petition. 28 U.S.C. § 2253(c)(1). “A certificate of appealability may issue . . . only

if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To obtain a certificate of appealability, Mr. Owens

must show that reasonable jurists would find debatable both the merits of the

underlying claims and the procedural issues he seeks to raise. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Mr. Owens has not made the requisite

showing. Because Mr. Owens is not entitled to a certificate of appealability, he is

not entitled to appeal in forma pauperis.

DONE AND ORDERED in Tampa, Florida, on April 10, 2025.

wn ey

UNITED STATES DISTRICT JUDGE

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