Lundy

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JEROME ANTONIO LUNDY,

Petitioner,

v. Case No. 3:23-cv-134-HES-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

Respondent.

ORDER

I. Status

Petitioner Jerome Antonio Lundy, an inmate of the Florida penal

system, initiated this action through counsel on February 3, 2023, by filing a

Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1).! He is

proceeding on an Amended Petition (Docs. 3, 3-1). In the Amended Petition,

Petitioner challenges a 2011 state court (Duval County, Florida) judgment: of

conviction for attempted first-degree murder, attempted second-degree

murder, and discharging a firearm from a vehicle. He raises one ground for

relief. See Doc. 3-1 at 2-9. Respondents submitted a memorandum in

opposition to the Petition. See Doc. 12. They also submitted exhibits. See

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

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

Docs. 15-1 through 15-16. Petitioner filed a brief in reply. See Doc. 18. This

action is ripe for review.

II. Relevant Procedural History

On September 2, 2011, a jury found Petitioner guilty of attempted first-

degree murder (count one), attempted second-degree murder (count two), and

discharging a firearm from a vehicle (count three). Doc. 15-4 at 2-5. On

September 29, 2011, the circuit court sentenced Petitioner to a term of life

imprisonment, with a twenty-year minimum mandatory, as to count one; a

thirty-year term of imprisonment, with a twenty-year minimum mandatory,

as to count two; and a fifteen-year term of imprisonment as to count three.

Doc. 15-5 at 2-8. The First District Court of Appeal (First DCA) per curiam

affirmed Petitioner’s conviction and sentence on December 28, 2012, Doc. 15-

9 at 2, and it issued the mandate on January 15, 2013, Doc. 15-10 at 2.

On March 28, 2014, Petitioner filed through counsel a motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850,

raising one ground for relief. Doc. 15-11 at 6-21. Following an evidentiary

hearing, the circuit court denied relief on all grounds. Id. at 188-98. On

January 10, 2023, the First DCA per curiam affirmed the denial of relief

without a written opinion, Doc. 15-15 at 2, and on February 3, 2023, it issued

the mandate, Doc. 15-16 at 2.

ITI. 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 [Petitioner's] claim □

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’, 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, 132.

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. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield

v. Cain, 576 US. ---, ---, 185 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (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

USS. at ---, 184 S. Ct. at 15 (quoting Wood v. Allen,

558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d

738 (2010)).

Tharpe v. Warden, 834 F.3d 1328, 1337 (11th Cir. 2016). 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 US.

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) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

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, 104 S.

Ct. 2052. 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, 104

S. Ct. 2052. 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, 104 S. Ct.

2052.

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, 104 S. Ct.

2052. It is not enough “to show that the errors had

some conceivable effect on the outcome of the

proceeding.” Id., at 693, 104 S. Ct. 2052. 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, 1048. Ct. 2052.

Richter, 562 U.S. at 104. 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, 592 F.3d at 1163. 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

1248, 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 ---,

131 S. Ct. at 788. 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, 128, 129S. Ct.

1411, 1420, 173 L.Ed.2d 251 (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 ---,

1318. Ct. at 788.

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

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[iJn 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 (lith 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

In his sole ground for relief, Petitioner alleges that counsel was

ineffective when he failed to “adequately warn [Petitioner] of the sentencing

consequences of a guilty verdict.” Doc. 3-1 at 2. Petitioner asserts that before

trial, counsel conveyed an offer from the State: if Petitioner pled guilty to the

offenses charged, he would receive a sentence of ten years in prison. Id.

Petitioner refused the offer. Id. According to Petitioner, counsel failed to

advise him that if he proceeded to a trial and a jury found him guilty, he

could receive a sentence of life in prison—the statutory maximum penalty for

the offenses as charged in the information. Id. Petitioner claims that he

would have accepted the State’s offer of ten years in prison if counsel had

explained the sentencing consequences of proceeding to a trial. Id.

Petitioner raised a substantially similar claim in his Rule 3.850 motion.

Doc. 15-11 at 9-16. The circuit court held an evidentiary hearing, during

which Petitioner called the following witnesses: his father, Ernest Lundy;

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defense attorney Matthew Lufrano; and himself. The State called Petitioner's

trial counsel, Christopher Blaisdell, and former assistant state attorney

Jeffrey Moody.

Ernest Lundy testified that Mr. Blaisdell told him that the State had

extended a ten-year plea offer to Petitioner. Doc. 15-11 at 331. According to

Ernest Lundy, Mr. Blaisdell never informed him of the maximum sentence

for the charges against Petitioner. Id.

Mr. Lufrano was an assistant public defender when he represented

Petitioner; however, he had only minimal involvement with the case. Id. at

360-61.

Petitioner testified that before jury selection, Mr. Blaisdell told him

that the State had made a ten-year plea offer. Id. at 339. According to

Petitioner, Mr. Blaisdell stated that the plea offer was “mighty low for the

charges.” Id. at 340. Petitioner then asked Mr. Blaisdell if there was “a good

chance that we can win at trial,” and Mr. Blaisdell responded in the

affirmative. Id. Petitioner testified that Mr. Blaisdell never informed him of

the maximum sentence or minimum mandatory sentence for the charges

against him. Id. at 340-41.

Mr. Blaisdell testified that he was an assistant public defender when

he represented Petitioner. Id. at 368. Routinely, when Mr. Blaisdell began

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representing a client, he would discuss with them the nature of the offense,

general allegations, and maximum sentence. Id. at 371. He also would have

discussed any plea offers from the State with a client, and while discussing

such an offer, he would have referenced the maximum sentence for the

charges. Id. at 373.

Although Mr. Blaisdell did not have an independent recollection of his

discussions with Petitioner, Mr. Blaisdell, as part of his routine practice,

would have informed Petitioner that the maximum sentence for attempted

first-degree murder was life in prison. Id. at 372. Mr. Blaisdell testified that

if the State had made a plea offer, he would have noted it in the public

defender file. Id. at 378. However, the public defender file did not include

such a notation. Id.

Mr. Moody similarly testified that if he had conveyed a plea offer, he

would have noted it in the State’s file. Id. at 401. However, the file did not

contain such a notation. Id. at 402. Moreover, for Mr. Moody to have extended

a plea offer in this case, he would have needed to request permission from his

supervising attorney to waive the minimum mandatory sentence. Id. at

402-03. Mr. Moody testified that the State file did not show he requested

permission from his supervisor, and such a waiver would be rare. Id. at

404-05.

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The circuit court denied relief, stating in pertinent part:

First, this Court does not find the testimony of

Ernest Lundy to be credible. His testimony that trial

counsel told him his son was facing 10 years in prison

caused this Court to have grave doubts about his

memory and recollection of his conversation with

trial counsel. Moreover, he has a powerful incentive

to help his son. The Court does not find Mr. Earnest

Lundy’s testimony that trial counsel told him the

State made a 10 year plea offer to be credible.

Second, this Court does not find the

Defendant's testimony credible. The Court

specifically rejects the Defendant’s testimony that

trial counsel came to him on the day of jury selection

and told him the State made a 10 year offer. The

Court also finds the Defendant’s testimony incredible

that he had no idea what he was facing if convicted.

The Defendant was charged with two counts of

attempted murder: one count of attempted murder in

the first degree and one count of attempted murder in

the second degree. The State charged in the

Information that the Defendant actually possessed

and discharged a firearm. Moreover, the Defendant’s

testimony, at the evidentiary hearing, that he asked

no questions when counsel came to him on the day of

jury selection with the State’s “low” 10 year plea offer

is simply not believable.

Finally, based on the testimony at the

evidentiary hearing, this Court finds that the State

did not make a 10 year plea offer on the day of jury

selection or, indeed, ever. The Court finds the

testimony of Mr. Blaisdell and Mr. Moody to be

credible as to this point. Trial counsel cannot be

ineffective for misadvising the Defendant about the

State’s plea offer when no plea offer was ever made.

[F'N4]

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Because the Court has found no deficient

performance, there is no need for this Court to

address Strickland’s prejudice prong. But even if the

Court were required to do so, the Defendant’s claim

would fail. Because the Court has found the State did

not make a 10 year offer, the Defendant cannot

satisfy all of the Alcorn[?] factors.

[FN4] The Defendant did not claim he ever

made a plea offer. This Court acknowledges that both

Mr. Blaisdell and Mr. Mboody’s_ independent

recollection was affected by the passage of time but

this Court finds that routine practice in annotating

their files with significant events, like a 10 year plea

offer, bolsters their testimony from their independent .

recollection. The fact that both counsel testified that

plea offers, if made, would have been noted in the file

coupled with their testimony that neither the State’s

nor Defendant’s file had any notation about a 10 year

plea offer was part and parcel of this Court’s analysis

of this claim.

Doc. 15-11 at 196-97. The First DCA per curiam affirmed the circuit court’s

order without a written opinion. Doc. 15-15 at 2.

To the extent that the First DCA decided this claim on the merits,’ the

Court applies 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

2 Alcorn v. State, 121 So. 3d 419 (Fla. 2013).

3 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.

14

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, Petitioner is not entitled to relief on the basis of this

claim.

Nevertheless, even if the First DCA’s adjudication of this claim is not

entitled to deference, it is without merit. In federal habeas proceedings, “a

determination of a factual issue made by a State court shall be presumed to

be correct.” 28 U.S.C. § 2254(e)(1). A petitioner has “the burden of rebutting

the presumption of correctness by clear and convincing evidence.” Id. In

reviewing claims of ineffective assistance of counsel where counsel does not

have specific memories otherwise, courts may rely on an attorney's

representation that his conduct at the time was in conformance with his

general practice or habit. Dasher v. Att'y Gen., 574 F.3d 1310, 1314 (11th Cir.

2009).

The Court finds Petitioner has failed to provide any evidence to meet

his burden of overcoming the presumption of correctness as to the circuit

court’s factual finding that counsel’s testimony was credible. As such, the

Court presumes counsel’s testimony is credible. 28 U.S.C. § 2254(e)(1).

Further, although counsel did not have an independent recollection of the

case, he detailed his general practice of noting plea offers in his file and

15

informing clients of any plea offers, as well as the maximum sentence for the

offenses charged. Accordingly, counsel’s testimony that his conversations

with Petitioner would have conformed with his general practice is sufficient

to refute Petitioner’s claim of deficient performance. See Dasher, 574 F.3d at

1314.

Insofar as Petitioner argues that “he still received ineffective assistance

of counsel when his counsel failed to advise him of the extremely likely

sentencing consequences of proceeding to trial [because] [] had he been so

advised, he would have insisted on negotiating a plea with the State,” he is

still not entitled to relief. Doc. 18 at 2. Vague, conclusory, speculative, or

unsupported claims cannot establish an ineffective assistance of counsel

claim. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991). More than

mere conceivability is required to establish prejudice; indeed, the likelihood of

a different result must be substantial, not just conceivable. Jenkins v.

Comm., Ala. Dep’t of Corr., 963 F.8d 1248, 1264 (11th Cir. 2020). The Court

finds this claim is conclusory and speculative because Petitioner merely

alleges, without support, that the State would have offered a plea deal, the

trial court would have approved the deal, and Petitioner would have accepted

it. Accordingly, Petitioner is not entitled to federal habeas relief on this claim.

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VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Petitioner seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. 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-Fl, 537 U.S. at 335-36 (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)).

Where a district court has rejected a petitioner’s constitutional claims

on the merits, the petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong. See Slack, 529 U.S. at 484. However, when the district court has

rejected a claim on procedural grounds, the petitioner must show that “jurists

of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.

17

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

of appealability.

Therefore, it is now ORDERED:

1. The Amended Petition (Doc. 3) is DENIED, and this action is

DISMISSED WITH PREJUDICE.

2. The Clerk shall enter judgment denying the Amended Petition,

and dismissing this case with prejudice.

3. If Petitioner appeals the denial of the Amended Petition, the

Court denies a certificate of appealability. Because the 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.

A. The Clerk is directed to close this case and terminate any

pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 254 day of

January, 2026.

VEY. HLESINGER

United States District Judge

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Jax-9 1/15

c Counsel of record □

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