Rhodaback v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RALPH CAROL RHODABACK,

Petitioner,

v. Case No. 3:22-cv-455-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Ralph Carol Rhodaback, an inmate of the Florida penal

system, initiated this action by filing a pro se Petition for Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2254. See Doc. 1. He challenges three state court (Duval

County, Florida) judgments of conviction for two counts of burglary of a dwelling

and one count of attempted burglary of a dwelling. He is serving a cumulative

seventy-year term of incarceration as a Prison Releasee Reoffender and a

Habitual Felony Offender. Respondents filed a Response. See Doc. 6 (Resp.).1

The Court provided Petitioner with an opportunity to file a reply (Docs. 4, 9),

1 Attached to the Response are various exhibits (Docs. 6-1 to 6-25). The Court

refers to the exhibits as “Resp. Ex.”

but he did not do so.2 This case is ripe for review.3

II. Governing Legal Principles

A. Standard Under AEDPA

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

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

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

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘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)).

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

decision, if any, that adjudicated the petitioner’s claims on the merits. See

2 In January 2023, Petitioner filed a document indicating he did not receive a

copy of the response. See Doc. 9. As such, the Court directed Respondents to send

Petitioner a copy of the Response and exhibits. Id. Later, Petitioner filed a notice

advising that he had received a copy of the Response exhibits, but he did not receive a

copy of the Response. See Doc. 11. As such, in February 2023, Respondents filed a

notice indicating they mailed another copy of the Response to Petitioner. See Doc. 12.

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

the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,

1318 (11th Cir. 2016) (citing 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) (citation omitted). “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.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is

unaccompanied by an explanation,

the 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. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

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

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’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 ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

Notably, there is no “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.” 466 U.S. at 697.

“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. As such, “[s]urmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Reviewing courts apply a ‘strong presumption’ that counsel’s representation

was ‘within the wide range of reasonable professional assistance.’” Daniel v.

Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Factual and Procedural History

The following summary of the trial proceedings is taken from Petitioner’s

initial brief filed on direct appeal:

By way of three Informations filed in the Circuit Court for

Duval County on December 15, 2015, the State charged [Petitioner]

as follows:

1. Burglary of a dwelling (Case No. 16-2015-CF-

010332[)];

2. Burglary of a dwelling (Case No[]. 16-2015-CF-

010334[)];

3. Attempted Burglary, possession of contraband,

resisting arrest without violence, one count of

attempted burglary of a dwelling and one count

of resisting arrest without violence (Case No[].

16-2015-CF-010333[)].

Resp. Ex. F at 6 (record citations omitted). The trial court then granted the

state’s motion to consolidate the three charges for trial. And later granted

Petitioner’s motion to consolidate for purposes of appeal. Id. The following

evidence was presented at trial:

Monica Denmark. On November 23, 2015, Monica

Denmark lived in a house in Jacksonville with her husband and two

children. On that day she was at home by herself. About 9 a.m., as

she folded some laundry, she heard someone ring her doorbell five

or six times over the course of several minutes. She was upstairs,

and when she looked out a window, she saw a “scraggly older white

male” with a beard ringing the bell. He was wearing a hat and a

dark blue blazer.

Getting no response, the man, whom Denmark identified at

trial as Rhodaback, went to the back of the house. Thinking that

was “kind of weird” she went downstairs and saw him trying to get

into the house by a sliding glass door. Upset, Denmark began

screaming and cussing at him and told him she was going to call

the police, which she did. He fled, and she got into her pickup truck

to follow him. She soon saw him riding a bicycle, but lost him. She

returned home, and by that time the police had shown up. She gave

them a description of the man. After they departed, she left her

home with her husband, who had returned. About an hour later,

she saw Rhodaback a second time near where she lived. He was

talking with two men in a red “Magnum” who were apparently

following him. Eventually they began to chase Rhodaback, and at

some point he ditched the bike and fled into a nearby wooded area.

[Officer Chad Harris testified that Denmark] called the

police again, who returned, and they put out an alert or BOLO for

him, which included that he was carrying a black backpack. Soon

they saw the defendant, and [Officer Harris] told him to stop. He

did not, but fled. [Officer Harris] gave chase and soon had run him

to the ground. He was exhausted. When arrested, he told [Officer

Harris], “I’m glad it’s over, I’m tired of breaking into people’s houses

for a living.” He also did not have a backpack. Searching him,

[Officer Harris] found a “ball mass” of mainly women’s jewelry in

one of his pockets.

Later [Officer Harris] learned of another burglary, this one at

the home of Wendy Sikes. When shown the jewelry taken from

Rhodaback, she identified some of it as hers.

Lorine Higginbotham. Lorine Higginbotham lived within

a mile of Denmark, and on the morning of November 23, 2015 she

had left home about 6:30 or 7 a.m., locking the front door. She

returned about noon, very tired, and went to a room to rest. She got

up after a few minutes and then realized her home had been

ransacked because “everything was turned upside down, scattered

all over the bed, all over the floor.” She left her home, called her

daughter, who called the police. Some medications, camera

equipment, pendants, money,[ ] and jewelry had been taken and

were later taken from Rhodaback.[]

An intruder had gotten into Higginbotham’s home through a

window, which had been broken.

Wendy Sikes. On November 23, 2015, Wendy Sikes lived in

a two story house with her 15 year old son and fiancé, which was

within a mile or so of where Denmark and Higginbotham lived. She

left about 6:30 with her fiancé while her son stayed home asleep

with headphones on to block noises from trains as they rumbled

near his home.

She returned home about 3:45 that afternoon and was met by

her son who said the glass door to the patio had been broken. She

went upstairs and noticed that her bedroom had been ransacked[.]

Everything was a mess. Wedding rings were missing as well as

other jewelry. The police were called and they showed her jewelry

they had taken from Rhodaback. Some of it was hers.

Wesley Sikes, [Wendy Sikes’s] 15 year old son woke up about

11 a.m. and quickly noticed the broken glass, and thought that their

dog had broken a window. The first he learned of any burglary was

when his mother began yelling when she went into her bedroom.

[Detective Vernon Richardson testified that] [w]hen

arrested[,] Rhodaback had some jewelry and medications on him,

the medication belonging to Ms. Higginbotham. She, along with Ms.

Denmark, identified other items taken from the defendant as

theirs. Denmark also identified him as the burglar when presented

with a photo spread by the police.

The defendant did not have a backpack when he was

arrested, but about a week later [Detective Richardson] returned to

the woods the defendant had been seen running into on November

23. After a search he found a pack matching the one Rhodaback had

been seen wearing[.] It was less than two miles from Denmark’s

house. It had money, jewelry, and a “lot of stuff.”

. . . .

[Petitioner] was found guilty as charged on all counts, with

the jury specifically finding as to the burglaries that the

structure[s] he entered w[ere] [] dwelling[s].

The defendant filed a motion for new trial, which the court

denied. It adjudicated him guilty of all the offenses and also found

him to be a[] habitual felony offender and Prison Release[e]

Reoffender. It then sentenced him as follows:

1. Burglary (Case No. 16-2015-CF-010332): 30 years in

prison as a[] Habitual Felony Offender and Prison

Release[e] Reoffender with a minimum mandatory

sentence of 15 years;

2. Burglary (Case No. 16-2015-CF-10334): 30 years in

prison as a[] Habitual Felony Offender and Prison

Release[e] Reoffender with a minimum mandatory

sentence of 15 years.

3. Attempted Burglary and resisting arrest (Case no.

16-2015-CF-010333): 10 years in prison for the

attempted burglary with a concurrent sentence of 290

days in jail for resisting arrest. The court also found the

defendant to be a[] Habitual Felony Offender.

Resp. Ex. F at 7-10 (record citations and paragraph enumeration omitted).

IV. The Petition

a. Ground One

Petitioner argues that his original trial counsel, Kevin Jenkins, was

ineffective for withdrawing his pretrial “Suggestion of Mental Incompetence to

Proceed” motion. Doc. 1 at 7-9. According to Petitioner, upon receipt of that

motion, the trial court granted trial counsel’s request for Petitioner to undergo

an expert evaluation; but, for some unknown reason, counsel withdrew the

motion before the evaluation was conducted. Id. at 8.

Petitioner raised this claim with the state court in his Florida Rule of

Criminal Procedure 3.850 motion. Resp. Ex. L at 10. Upon receipt, the trial

court found this claim insufficiently pled and directed Petitioner to amend his

Rule 3.850 motion. Id. at 33-35. Petitioner again raised this argument in his

amended Rule 3.850 motion. Id. at 51-53. The trial court summarily denied the

claim as follows:

In these Grounds, Defendant suggests the trial court erred by

failing to hold a competency hearing within twenty days of its order

appointing the expert to evaluate him and counsel was ineffective

for withdrawing Defendant’s suggestion of mental incompetence as

well as for failing to ensure the trial court held the competency

hearing within twenty days.

Initially, this Court [notes that] claims of trial court error are

not cognizable in a Rule 3.850 motion. Swanson v. State, 984 So. 2d

629, 629 (Fla. 1st DCA 2008) (citing Hodges v. State, 885 So. 2d 338,

366 (Fla. 2004)). Accordingly, to the extent this claim rests on that

basis, the ground is not cognizable.

Moreover, this Court finds the claim to be insufficiently pled

as a ground of ineffective assistance of counsel. Defendant fails to

allege sufficient prejudice as required by Strickland and fails to

allege that he was indeed incompetent as required by Luckey v.

State, 979 So. 2d 353, 354 (Fla. 5th DCA 2008). As this Court has

already granted Defendant the opportunity to amend this claim,

this Court is not required to give Defendant any additional

opportunity. Fla. R. Crim. P. 3.850(f)(3); Spera v. State, 971 So. 2d

754, 761 (Fla. 2007) (holding “the trial court abuses its discretion

when it fails to allow the defendant at least one opportunity to

amend the motion.”) (emphasis added).

Resp. Ex. L at 72-73. Petitioner appealed, and the First District Court of Appeal

per curiam affirmed the trial court’s denial without a written opinion. Resp. Ex.

O.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. In applying that

deference, the Court defers to the state court’s finding that even assuming

deficient performance, Petitioner fails to establish prejudice. Under the

prejudice prong here, Petitioner must show “there was a reasonable probability

that he would have received a competency hearing and been found incompetent

had counsel requested the hearing.” Lawrence v. Sec’y, Fla. Dep’t of Corr., 700

F.3d 464, 477 (11th Cir. 2012). Under this standard, the prejudice prong of the

ineffective assistance claim demands the same showing as that under a

substantive competency claim. Notably, Petitioner must demonstrate he was

actually incompetent at the time of trial. Id. Petitioner fails to make that

showing.

Here, the record shows that during a pretrial hearing, trial counsel

advised the trial court that he was withdrawing the suggestion of incompetence

and requested a continuance to complete depositions. Resp. Ex. B at 199-200.

During that pretrial hearing, Petitioner addressed the trial court and advised

that he had no objection to trial counsel’s request for a continuance and

explained that he understood that the continuance would waive his speedy trial

rights. Id. at 198. Petitioner did not object to trial counsel’s decision to withdraw

the suggestion of incompetency and nothing in the record reflects Petitioner was

substantively incompetent at that time. Indeed, Petitioner points to no evidence

suggesting otherwise and he fails to even allege that he was actually

incompetent to stand trial. To that end, upon thorough review of the record and

the applicable law, the Court concludes that the state court’s decision to deny

Petitioner’s claim was neither contrary to nor an unreasonable application of

Strickland, and it is not based on an unreasonable determination of the facts in

light of the evidence presented to the state court. Ground One is denied.

b. Ground Two

Petitioner alleges that his second trial attorney, Kathryn B. Fuller, was

ineffective for failing to file a motion for new trial based on the trial court’s

failure to hold the required competency hearing before trial under Florida Rule

of Criminal Procedure 3.210(b). Doc. 1 at 11-12.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

L at 53-57. The trial court summarily denied the claim as follows:

Defendant alleges counsel was ineffective for failing to file a

motion for new trial based on the trial court never holding a

competency hearing.

A competency hearing is mandatory if there are reasonable

grounds to suggest a defendant is not competent to proceed with

trial. Brooks v. State, 180 So. 3d 1094, 1095 (Fla. 1st DCA 2015).

However, “the trial court must independently determine that there

are reasonable grounds to question the defendant’s competency

before the obligation to hold a competency hearing arises.” Walker

v. State, 237 So. 3d 1162, 1164 (Fla. 1st DCA 2018) (citing Rodgers

v. State, 3 So. 3d 1127, 1132 (Fla. 2009)). A trial judge is not

obligated to accept a defense attorney’s representations regarding

the competency of a defendant but should consider them alongside

all other relevant circumstances. Id. (citation omitted).

Here, counsel withdrew his suggestion of incompetence under

a month after he filed it. No other suggestion was ever filed by

counsel. Instead, while making argument at sentencing, counsel

stated: “[Defendant], as you have observed, is a very nice man, very

respectful, was easy to work with, other than the negotiations, that

I understood.” This comment indicates that counsel was able to

work with Defendant throughout the case and that Defendant

presented himself appropriately in court. Thus, unless the judge

saw independent signs of incompetence, which Defendant does not

allege, the court was not required to hold a competency hearing.

Accordingly, any such argument in the motion for new trial would

have been properly denied, and counsel cannot be deemed

ineffective for failing to raise that argument. Defendant is,

therefore, not entitled to relief on this basis.

While not the same claim, this Court notes that in

Defendant’s Original Motion he alleged the trial court erred in

denying trial counsel’s motions for judgment of acquittal and

motion for new trial because the verdict was contrary to the weight

of the evidence and contrary to the law. Defendant abandoned this

allegation within his Amended Motion. However, in an abundance

of caution this Court addresses the allegation.

Again, allegations of trial court error are not cognizable in the

instant Motion. Moreover, a defendant further cannot challenge the

sufficiency of the evidence against him in such a motion. See Betts

v. State, 792 So. 2d 589, 590 (Fla. 1st DCA 2001) (“To the extent

that the allegations challenged the factual basis and sufficiency of

the evidence, such claims cannot be raised in a Rule 3.850 motion,

especially where (as occurred in the instant case) a direct appeal

was taken.”) (citation omitted). Accordingly, Defendant is not

entitled to relief on this basis.

Resp. Ex. L at 73-74. Petitioner appealed, and the First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. O.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. In applying that

deference, the Court again defers to the state court’s finding that nothing in the

record suggests that either trial counsel or the trial court knew or witnessed

signs of incompetency such that they had to request or hold a competency

hearing. Indeed, following jury selection, the trial court conducted a colloquy

with Petitioner, during which Petitioner made clear he was satisfied with his

attorney’s performance so far and advised he had nothing to address with the

court at that time. Resp. Ex. D at 169. Following the state’s case, the trial court

conducted another colloquy with Petitioner about whether he wished to testify

on his own behalf. Id. at 343. During the exchange, Petitioner coherently

responded to the trial court’s questions, advised that he made the decision to

not testify, explained that he was aware of his seven prior felony convictions,

and that he had enough time to consult with his attorney about his case and

that her performance was satisfactory. Id. at 347. Further, at his sentencing

hearing, trial counsel stated, “as you have observed, [Petitioner] is a very nice

man, very respectful, [and] was easy to work with . . . .” Resp. Ex. A at 199. She

also asserted that he participated in plea negotiations and displayed an

understanding of the sentence he faced. Id. Thus, the record shows Petitioner

could assist in his defense, understood the proceedings, and was competent to

stand trial. He cannot show the requisite prejudice under Strickland. And thus,

upon thorough review of the record and the applicable law, the Court concludes

that the state court’s decision to deny Petitioner’s claim was neither contrary to

nor an unreasonable application of federal law, and it is not based on an

unreasonable determination of the facts in light of the evidence presented to

the state court. Ground Two is denied.

c. Ground Three

Petitioner contends that his second trial counsel, Fuller, was ineffective

for misadvising Petitioner regarding the consequences of rejecting the state’s

twenty-year plea offer. Doc. 1 at 14-16. According to Petitioner, counsel

erroneously told Petitioner that if he chose to go to trial, the maximum sentence

he faced for all three convictions would be thirty-years, and she failed to

adequately advise Petitioner that in actuality, he faced a maximum prison term

of seventy-years.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

L at 60. The trial court summarily denied the claim as follows:

Defendant avers counsel was ineffective for failing to advise

Defendant of the maximum sentences he faced. Specifically,

Defendant asserts counsel informed him he was subject to thirty

years at trial and never told him he could receive seventy years

total between the three case numbers. Defendant alleges the State

made an offer of twenty years with a fifteen year minimum

mandatory, which counsel advised Defendant to accept, but that he

rejected because she did not correctly advise him of his maximum

possible sentence.

To establish prejudice for this type of claim, it is necessary to

show a reasonable probability that the end result of the criminal

process would have been more favorable by reason of a plea to a

lesser charge or a sentence of less prison time. Alcorn v. State, 121

So. 3d 419, 430 (Fla. 2013). Specifically, the defendant 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 defendant 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.

Id.

At sentencing, counsel indicated that while the State had

offered twenty years, Defendant was not willing to accept a plea for

fifteen or twenty years and was specifically not willing to accept

anything more than ten years because he did not believe he would

live that long. Counsel stated he advised Defendant that based on

the facts of the case he should negotiate with the State, but “he

continued to say he does not want to be one of those people who dies

in prison.” This Court finds if Defendant was unwilling to accept

anything more than ten years because he did not believe he would

live for those ten years, then it is incredible to believe he would have

accepted twenty years based on a possibility that he could serve

longer than that, for which he would also not believe he would live

through. Accordingly, this Court finds Defendant cannot establish

prejudice for this claim and is not entitled to relief.

Resp. Ex. At 76-77 (record citations omitted). Petitioner appealed, and the First

DCA per curiam affirmed the trial court’s denial without a written opinion.

Resp. Ex. O.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. In doing so, the

Court defers to the state court’s conclusion that Petitioner has failed to satisfy

the purviews of Strickland. In the context of a rejected plea offer, the prejudice

prong requires the movant to show “a reasonable probability that but for

counsel’s ineffectiveness: (1) ‘the plea offer would have been presented to the

court (i.e., that the defendant would have accepted the plea and the prosecution

would not have withdrawn it in light of intervening circumstances)’; (2) ‘the

court would have accepted its terms’; and (3) ‘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.’” Osley v. United States, 751 F.3d 1214,

1222 (11th Cir. 2014) (quoting Lafler v. Cooper, 566 U.S. 156, 164 (2012)). But

“after the fact testimony concerning [the movant’s] desire to plead, without

more, is insufficient to establish that but for counsel’s alleged advice or inaction,

he would have accepted the plea offer.” Diaz v. United States, 930 F.2d 832, 835

(11th Cir. 1991).

Here, the record shows Petitioner voluntarily rejected the state’s twenty-

year plea offer and fully understood the consequences of that rejection. Indeed,

at sentencing, trial counsel advised the trial court that once she began

representing Petitioner, she tried to negotiate a plea with the state and

explained that Petitioner was seeking a ten-year term of incarceration. Resp.

Ex. C at 212. According to counsel, because of Petitioner’s Prison Releasee

Reoffender status, the state was unwilling to accept a term of incarceration less

than twenty-years. Id. Petitioner, however, rejected the state’s offer and advised

that he was not willing to accept a twenty-year sentence because he did not

believe he would live that long. Id. Counsel also explained that when Petitioner

rejected that offer, he was aware of his PRR and HFO status and the maximum

sentence he faced. Id. at 214. As such, upon thorough review of the record and

the applicable law, Petitioner fails to demonstrate that but for counsel’s alleged

error, he would have accepted the state’s offer and not proceeded to trial. The

Court finds that the state court’s decision to deny Petitioner’s claim was neither

contrary to nor an unreasonable application of Strickland, and it is not based

on an unreasonable determination of the facts given the evidence presented to

the state court. Ground Three is denied.

d. Ground Four

Petitioner contends that both his trial attorneys were ineffective for

failing to conduct a DNA test of the backpack that law enforcement recovered

days after Petitioner’s arrest and negate the state’s position that the backpack

belonged to Petitioner. Doc. 1 at 18.

Petitioner raised this claim in his amended Rule 3.850 motion. Resp. Ex.

L at 61-62. The trial court summarily denied the claim as follows:

Defendant alleges counsel was ineffective for failing to have

the backpack police recovered from the woods tested for DNA to

prove it was not Defendant’s backpack. Defendant states he never

possessed that backpack or the burglary items contained inside of

it.

At trial, the State presented the testimony of Monica

Denmark (“Denmark”), who identified Defendant as the man who

attempted to break into her back, patio door after she did not

answer the door when he rung that for a few minutes. Denmark

testified that she saw Defendant when he was trying to get into her

house and a little bit later just outside of her neighborhood, and

that each time, he had a dark backpack on. While Defendant did

not have on a backpack when arrested, the lead detective went back

and searched the area near where Defendant was arrested and

found a backpack matching the description, which contained items

from one of the victims. Items stolen from this victim’s residence

were also found on Defendant’s person when he was arrested.

Accordingly, there was plenty of evidence to link Defendant to the

backpack had [it] not come back with any DNA from Defendant.

Moreover, counsel attempted to discredit the backpack evidence in

other ways by highlighting the backpack was not found on

Defendant when he was arrested [and] was not found by police until

a week after Defendant’s arrest. Additionally, as evidence against

Defendant for these crimes, the arresting officer testified that while

taking Defendant into custody, Defendant stated, “I’m glad it’s over.

I’m tired of breaking into people’s houses for a living.” Considering

the evidence against Defendant, this Court finds no reasonable

probability the result of the proceeding would have been different

even if counsel had hired a DNA expert who could testify that the

backpack, which had been outside for a week after Defendant’s

arrest before being retrieved, did not have Defendant’s DNA on it.

This Court, therefore, finds counsel was not ineffective in this

respect and denies this Ground.

Resp. Ex. L at 77-78 (record citations omitted). Petitioner appealed, and the

First DCA per curiam affirmed the trial court’s denial without a written

opinion. Resp. Ex. O.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. In doing so, the

Court heeds the state court’s finding that Petitioner failed to demonstrate

prejudice. Indeed, considering the eyewitness testimony, evidence of

Petitioner’s own statements to law enforcement, and the items found on

Petitioner’s person at the time of arrest, Petitioner cannot show that but for

trial counsel’s alleged error, the outcome of the proceedings would have been

different. Upon thorough review of the record and the applicable law, the Court

concludes that the state court’s decision to deny Petitioner’s claim was neither

contrary to nor an unreasonable application of Strickland, and it is not based

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

to the state court. Ground Four is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED

WITH PREJUDICE.

2. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

3. If Petitioner appeals this denial, the Court denies a certificate of

appealability. Because this Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this 18th day of

August, 2025.

Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

Jax-7

C: Ralph Carol Rhodaback, #278478

Counsel of record

4 The Court should issue a certificate of appealability only if the Petitioner

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

2253(c)(2). To make this substantial showing, Petitioner “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Here, after consideration of the record as a whole, the Court will deny a certificate of

appealability.

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