Hughes

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

STEVEN FRANKLIN HUGHES, JR.,

Petitioner,

v. Case No. 3:22-cv-1421-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

Respondent.

____________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this case by

filing a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. Doc.

1. He is challenging two 2014 state court (Duval County, Florida) judgments of

conviction for aggravated battery and armed robbery, for which he is serving

consecutive sentences of ten and thirty years imprisonment, respectively, after

entering pleas of guilty. Respondent has responded. See Doc. 5; Resp.1

1 Attached to the Response are several exhibits. See Docs. 5-1 to 5-8. The Court

cites the exhibits as “Resp. Ex.” and will document page numbers assigned by the

Court’s electronic docketing system.

Petitioner replied. See Doc. 9. This case is ripe for review.2

II. Governing Legal Principles

A. Standard of Review

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

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,

2 “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.

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. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

habeas action in federal court, a petitioner must exhaust all state court

remedies available for challenging his state conviction. See 28 U.S.C. §

2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners

must give the state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘opportunity to pass upon and correct’ alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[3] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[4] supra, at 84–85, 97 S. Ct.

2497. A state court’s invocation of a procedural rule to

deny a prisoner’s claims precludes federal review of the

claims if, among other requisites, the state procedural

rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and

consistently followed. See, e.g., Walker v. Martin, 562

U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62

(2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612,

617–618, 175 L.Ed.2d 417 (2009). The doctrine barring

procedurally defaulted claims from being heard is not

without exceptions. A prisoner may obtain federal

review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.

See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). For a petitioner to establish cause and prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

3 Coleman v. Thompson, 501 U.S. 722 (1991).

4 Wainwright v. Sykes, 433 U.S. 72 (1977).

953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,

477 U.S. at 488, 106 S. Ct. 2639).[5] Under the prejudice

prong, [a petitioner] must show that “the errors at trial

actually and substantially disadvantaged his defense

so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

477 U.S. at 496, 106 S. Ct. at 2649. “This exception is

exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it

is more likely than not that no reasonable juror would have convicted him’ of

the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

5 Murray v. Carrier, 477 U.S. 478 (1986).

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of 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-n 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. Relevant Procedural History

On March 5, 2014, Petitioner entered open pleas of guilty to aggravated

battery and armed robbery in front of the Honorable Suzanne Bass.6 Resp. Ex.

A at 14-15, 23-24. Before accepting the pleas, Judge Bass conducted a plea

colloquy with Petitioner and then continued the case for sentencing. Id. at 57-

74. During that colloquy, defense counsel and the trial court informed Petitioner

that he was subject to a ten-year minimum mandatory and a maximum fifteen-

year term of incarceration for aggravated battery and a ten-year minimum

mandatory and a maximum term of life incarceration for armed robbery. Id. at

59-60, 61, 62-64. They also advised Petitioner that the minimum mandatory

terms were required to run consecutive. Id. at 60, 64-65. Petitioner confirmed

that no one promised him anything in return for his guilty pleas and that the

sentences imposed would be determined by the trial court. Id. at 65-66.

Petitioner further confirmed he forfeited certain constitutional rights by

entering his pleas. Id. at 67-68.

On June 24, 2014, the Honorable Russell L. Healey conducted Petitioner’s

6 Though the pleas were entered at the same time, the charges were initiated

in separate cases, Case No. 2013-CF-7543 (aggravated battery) and 2013-CF-8147

(armed robbery).

sentencing hearing. Id. at 32-56. At the sentencing hearing, defense counsel and

the state informed the trial court that they agreed to imposing the minimum

mandatory terms to run concurrently. Id. at 35-39. The trial court then

sentenced Petitioner to a ten-year term of incarceration with a ten-year

minimum mandatory on the aggravated battery conviction and a thirty-year

term of incarceration with a ten-year minimum mandatory on the armed

robbery conviction. Id. at 16-22, 25-31, 54. The trial court also ordered the

sentences to run consecutively, but ordered the minimum mandatories to run

concurrently pursuant to the parties’ agreement. Id. at 55.

After sentencing, Petitioner filed a pro se motion to withdraw his pleas

under Florida Rule of Criminal Procedure 3.170(l), asserting his pleas were

involuntary because: (1) trial counsel promised Petitioner that he would receive

concurrent sentences not exceeding the minimum mandatories; (2) trial counsel

told him the trial court agreed to sentence Petitioner to no more than fifteen

years on each conviction; (3) the trial court erred in failing to determine whether

Petitioner had any plea offers or whether he was promised anything for his

pleas; and (4) the trial court should have known that Petitioner could not fully

understand or comprehend the laws due to his lack of education. Id. at 4-7. The

trial court summarily denied the motion. Id. at 9-13. Petitioner, with help from

appellate counsel, then sought a direct appeal. Id. at 76-77. He filed an initial

brief arguing the trial court erred in summarily denying the motion to withdraw

his pleas without first appointing conflict-free counsel. Resp. Ex. B. The state

filed an answer brief. Resp. Ex. C. The First District Court of Appeal per curiam

affirmed the trial court’s decision without a written opinion. Resp. Ex. D.

On January 11, 2013, Petitioner filed a motion for postconviction relief

under Florida Rule of Criminal Procedure 3.850. Resp. Ex. E at 5-14, 20-27. In

his Rule 3.850 motion, Petitioner raised four grounds, arguing: (1) counsel was

ineffective for failing to file a motion to dismiss; (2) counsel was ineffective for

failing to file a motion to suppress Petitioner’s confession; (3) counsel was

ineffective for coercing Petitioner to enter guilty pleas, rendering the pleas

involuntary; and (4) counsel was ineffective for misadvising him on the legal

aspects of Petitioner’s case, rendering his pleas involuntary. Id. After

conducting an evidentiary hearing on ground four, the trial court denied the

Rule 3.850 motion. Id. at 28-36. Petitioner appealed. Id. at 110-11. With the

help of appellate counsel, Petitioner filed an initial brief arguing only that the

trial court erred in summarily denying ground three of the Rule 3.850 motion.

Resp. Ex. F. The state filed an answer brief. Resp. Ex. G. The First DCA per

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

H.

III. The Petition

A. Ground One

Petitioner argues his pleas were involuntary. Doc. 1 at 6-14. Specifically,

Petitioner suggests the trial court, at sentencing, failed to ascertain whether

his pleas were still knowingly and voluntarily entered after defense counsel and

the state informed the trial court of an agreement to run the minimum

mandatories concurrently after Petitioner originally made open pleas to the

trial court. Id. at 10-11.7

Respondent states that Petitioner raised the “general” allegations of this

Ground in ground three of his Rule 3.850 motion but argues this claim is

unexhausted because, “Petitioner has expanded on his original claim now

contending that counsel should have objected because the court failed to conduct

another plea colloquy because the discussions between the state and the defense

transformed the open plea before the court to a negotiated plea agreement.”

Resp. at 14.

However, in his Petition, Petitioner does not expand his claim to suggest

7 In his Reply, Petitioner seems to make a new argument not raised in his

Petition – that the trial court violated his due process rights because the sentencing

judge did not comply with Florida Rule of Criminal Procedure 3.700. Doc. 9 at 2. As

Petitioner improperly raised the argument for the first time in his Reply the Court

does not address this argument. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338,

1342 (11th Cir. 2005) (“As we repeatedly have admonished, ‘[a]rguments raised for the

first time in a reply brief are not properly before a reviewing court.’” (citing United

States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir. 1994))).

trial counsel was deficient for failing to object, but instead continues to center

the claim on the voluntariness of his pleas due to the sentencing court’s failure

to engage in another plea colloquy.8 As such, the Court finds Petitioner

exhausted this claim within ground three of his Rule 3.850 motion. Resp. Ex. E

at 10-11, 24. The trial court denied this ground, stating:

Defendant alleges counsel was ineffective for

failing to apply the law, exert every skill, and act

diligently for Defendant. First, Defendant contends

counsel coerced him by telling Defendant that if he

entered an open plea of guilty, the State would “run

the two minimum/mandatory sentences concurrent.”

According to Defendant, counsel told him this with the

knowledge that this would be an illegal sentence.

First, no court has determined that Defendant’s

sentence is illegal. Second, section 775.087(2)(d)

“contemplates two distinct imprisonment terms: a

term imposed for a qualifying felony . . . and a term

imposed for a non-qualifying felony.[”] Williams v.

State, 186 So. 3d 989, 992 (Fla. 2016). According to

Williams:

The last sentence of paragraph (2)(d)

further delineates the manner in which

these distinct imprisonment terms are to

be served in relation to one another.

Specifically, it expressly mandates only

that a qualifying felony sentence run

“consecutively to” any sentence imposed

8 The Court does note the inconsistency of Petitioner’s allegations. In his Rule

3.850 motion he alleged that his plea was involuntary because counsel “coerced” him

to plea by informing him the minimum mandatory sentences would run concurrently

if he pled. But in his Petition, Petitioner now states his plea was involuntary because

there was no such agreement prior to the entrance of his pleas, and because it arose

after his plea, the sentencing judge should have conducted a second plea colloquy to

ensure his voluntariness. Nevertheless, due to the similarities of these underlying

allegations, the Court finds this claim exhausted.

for a non-qualifying felony. Nothing in

paragraph (2)(d)’s plain language also

requires, as the State posits, a qualifying

felony sentence to run consecutively to

another qualifying felony sentence.

Id. (emphasis added).

Defendant’s claim is unfounded because

Aggravated Battery and Armed Robbery are

qualifying offenses. See 775.087(2)(a), Fla. Stat.

(2013). As such, according to Williams, there is

nothing in the statute that requires the Court to

impose consecutive minimum mandatory sentences in

Defendant’s cases.

Next, Defendant maintains his plea was

involuntary because he entered his plea in front of one

judge and another judge presided over his sentencing.9

Defendant states counsel coerced him by stating the

judge to whom Defendant pleaded guilty “is known to

be more lenient . . . .” According to Defendant, the

sentencing judge improperly failed to ensure

Defendant’s plea was voluntary. “Before accepting a

plea of guilty or nolo contendere, the trial judge shall

determine that the plea is voluntarily entered . . . .”

Fla. R. Crim. P. 3.172(a) (emphasis added).

Here, Defendant directs his complaint at what

the sentencing judge did not do. The original judge

properly questioned Defendant when Defendant

entered his plea and found the plea to be voluntarily

entered. There is no authority to support Defendant’s

contention that the sentencing judge should have done

a colloquy to determine whether Defendant’s guilty

plea was voluntary. Defendant ha[d] already entered

his plea by that time. Consequently, there was no

reason for counsel to object. Defendant is not entitled

9 The sentencing judge rotated into this division according to standard Fourth

Circuit procedures.

to relief on Ground Three.

Resp. Ex. E at 32-33 (record citations omitted, footnote in original but

renumbered herein). The First DCA per curiam affirmed the trial court’s denial

without a written opinion (Resp. Ex. M).

The Court thus addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications. “A reviewing

federal court may set aside a state court guilty plea only for failure to satisfy

due process: ‘If a defendant understands the charges against him, understands

the consequences of a guilty plea, and voluntarily chooses to plead guilty,

without being coerced to do so, the guilty plea . . . will be upheld on federal

review.’” Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir. 1991) (quoting Frank

v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980)). As the trial court noted, the

trial judge who accepted Petitioner’s pleas conducted a colloquy to ensure his

pleas were knowingly and voluntarily entered, and there is no legal reason to

require the sentencing judge to perform a second colloquy. Indeed, a review of

the plea colloquy demonstrates Petitioner’s voluntariness and knowledge of the

consequences of his pleas. See Resp. Ex. A at 57-74. Considering this record

evidence, the Court finds that the state court’s decision to deny Petitioner’s

claim was neither contrary to nor an unreasonable application of federal law,

and it was not based on an unreasonable determination of the facts given the

evidence presented to the state court. See 28 U.S.C. § 2254(d). Ground One is

denied.

B. Ground Two

Petitioner asserts that the trial court erred in failing to appoint him

conflict-free counsel to represent him during its consideration of his pro se

motion to withdraw plea; thus, violating his right to counsel under the Sixth

and Fourteenth Amendments. Doc. 1 at 15-20.

As previously stated, Petitioner filed post-sentencing motion to withdraw

his pleas. Resp. Ex. A at 4-7. The trial court summarily denied the motion,

finding his allegations were conclusively refuted by the record. Resp. Ex. A at

9-13. Petitioner, with help from appellate counsel, raised this issue on direct

appeal. Resp. Ex. B. And the First DCA per curiam denied this claim and

affirmed his convictions and sentences without a written opinion. Resp. Ex. D.

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

the Court addresses the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts considering the evidence

presented in the state court proceedings. Thus, Petitioner is not entitled to

relief based on this claim.

To the extent that the state court’s adjudication of the claim is not entitled

to deference, Petitioner’s claim is still without merit. In Florida, a trial court is

not required to appoint conflict-free counsel in Rule 3.170(l) proceedings unless

an adversarial relationship exists, and an evidentiary hearing is required.

Flemming v. State, 204 So. 3d 950, 952 (Fla. 1st DCA 2016). Accordingly, if the

record conclusively refutes the allegations raised in the Rule 3.170(l) motion,

then a trial court need not appoint conflict-free counsel. Therefore, because the

trial court found that the record conclusively refuted Petitioner’s motion, it did

not err in failing to appoint Petitioner conflict-free counsel. Ground Two is

denied.

C. Ground Three

Petitioner argues his trial attorney was ineffective for failing to advise

him that he could move to withdraw his plea prior to sentencing. Doc. 1 at 21-

23. Specifically, Petitioner asserts that he entered his pleas before Judge Bass

“who was known to be a lenient sentencing judge” and whom counsel informed

him would not impose a sentence greater than the two consecutive minimum

mandatory sentences. Id. at 22. Petitioner states that when he learned the case

had been transferred to a different judge for sentencing, Petitioner expressed

concern but trial counsel incorrectly informed him there was no recourse since

the plea had already been entered. Id. at 22-23. Petitioner suggests he would

have withdrawn his plea, and “could have successfully negotiated with the

[s]tate for a favorable plea deal” or go to trial and either be acquitted or

convicted of a lesser included offense. Petitioner acknowledges he did not raise

this ground with the state court but asks that the Court overlook the procedural

bar under the purviews of Martinez v. Ryan, 566 U.S. 1 (2012).

Under Martinez, Petitioner must demonstrate more than the general

assertion that the trial court did not appoint counsel in the initial-review

collateral proceeding. 566 U.S. at 14. Petitioner must “also demonstrate that

the underlying ineffective-assistance-of-trial-counsel claim is a substantial one,

which is to say that the prisoner must demonstrate that the claim has some

merit.” Id. (citations omitted); see also Lambrix v. Sec’y Fla. Dept. of Corr., 851

F.3d 1158, 1164 (11th Cir. 2017). Conversely, a claim is “insubstantial” if “it

does not have any merit or . . . is wholly without factual support.” Id. at 16. For

the reasons that follow, the Court finds that even if Petitioner demonstrates

that his lack of postconviction counsel caused his procedural default, he cannot

demonstrate that his underlying ineffective assistance of counsel claim is

substantial to overcome his lack of exhaustion under Martinez.

Under Florida law, prior to sentencing, “[t]he court may in its discretion,

and shall on good cause . . . permit a plea of guilty or no contest to be

withdrawn.” Fla. R. Crim. P. 3.170(f). Good cause to withdraw a plea exists

under Florida law whenever “the plea is infected by misapprehension, undue

persuasion, ignorance, or was entered by one not competent to know its

consequence or that it was otherwise involuntary, or that the ends of justice

would be served by withdrawal of such plea.” Johnson v. State, 947 So. 2d 1208,

1210 (Fla. 5th DCA 2007) (quotation marks and citation omitted).

Here, assuming arguendo that trial counsel did in fact misadvise

Petitioner that there was no recourse after a new judge was assigned to his case

for sentencing and never informed him of the option to withdraw his plea before

sentencing, Petitioner cannot show prejudice. Petitioner’s assertions that he

believed he would have a more lenient sentence from the judge who accepted

his pleas does not show “good cause” which would require a judge to grant a

Rule 3.170(f) motion. Additionally, even if such a motion was filed and granted,

Petitioner’s assertions that he “could have successfully negotiated with the

[s]tate for a favorable plea deal” or go to trial and either be acquitted or

convicted of a lesser included offense are wholly speculative and cannot warrant

relief. It is difficult to show prejudice beyond mere speculation as to any

potential plea deal where, as here, “plea negotiations never advanced to any

level of specificity.” Cook v. United States, 613 F. App’x 860, 866 (11th Cir.

2015);10 see also Osley v. United States, 751 F.3d 1214, 1225 (11th Cir. 2014)

10 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. Gov’t Emps. Ins. Co., 30 F.4th 1055, 1060–61 (11th

(“The lack of definition in the plea offer makes it substantially harder to

determine it likely that a plea acceptable to [the defendant] would have been

entered without the prosecution canceling it or the trial court refusing to accept

it.” (quoting Merzbacher v. Shearin, 706 F.3d 356, 370 (4th Cir. 2013) (brackets

and emphasis removed))). Moreover, Petitioner’s assertion that he,

alternatively, would have been acquitted or convicted of a lesser included

offense is pure speculation and conjecture. Indeed, at the evidentiary hearing

on Petitioner’s Rule 3.850 motion, trial counsel testified that he reviewed the

evidence in Petitioner’s case, found the evidence (including Petitioner’s DNA

being found inside of the ATM that was broken and money stolen from at the

robbery) highly incriminating, and “considered any sentence less than life to be

a victory for [Petitioner].” Resp. Ex. E at 125-26, 130-31, 136-37. As such,

Petitioner has failed to satisfy the requirements of Martinez, and this Ground

is unexhausted and procedurally defaulted. Likewise, Petitioner fails to allege

actual innocence or a manifest injustice. Ground Three is due to be denied.

D. Ground Four

Petitioner contends his trial counsel was ineffective for failing to file a

motion to dismiss based on Florida’s Stand Your Ground statute. Doc. 1 at 20.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. E at 8-9, 22-23.

Cir. 2022); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions

are not considered binding precedent, but they may be cited as persuasive authority.”).

The trial court denied relief, stating:

Defendant claims counsel was ineffective for failing to

file a motion to dismiss in light of his allegation that he

had a “Stand Your Ground” defense in his Aggravated

Battery case based on justifiable use of force.

Furthermore, Defendant asserts “had defense counsel

filed the motion to dismiss the [Aggravated Battery

case], there would be no [Armed Robbery case].”11

When a defendant claims immunity pursuant to

776.032, Florida Statutes, the trial court must conduct

a pretrial evidentiary hearing at which the defendant

must demonstrate by a preponderance of the evidence

that he or she is immunized from prosecution. Dennis

v. State, 51 So. 3d 456, 462-63 (Fla. 2010). It is not

enough for the court to deny a motion to dismiss based

on section 776.032 because there are disputed facts.

Section 776.013, Florida Statutes (2013)[,] sets out

when a person protecting his or her home is justified to

use deadly force. A person is not presumed to “have

held a reasonable fear of imminent period of death or

great bodily harm to himself or another” when “[t]he

person against whom defensive force is used has the

right to be in . . . the dwelling, residence, or vehicle . . .

.” § 776.013(2)(a), Fla. Stat. (2013).

According to Defendant’s Arrest and Booking Report

for Aggravated Battery in Case No. 7543, the victim

told police Defendant and another suspect approached

the victim while he was in the driveway of a residence

where Defendant lived. The victim explained that he

was helping a friend remove personal belongings from

that residence where she lived. The victim told the

officers the other suspect approached the victim with a

hammer and pulled the victim out of his vehicle, and

Defendant aimed a shotgun at him, telling the victim

11 Defendant incorrectly designates Case No. 7543 as “Count I” and Case No.

8147 as “Court II.”

he was going to shoot him. Defendant and the other

suspect “fought with [the victim] outside the vehicle

and around the front yard with [the other suspect]

continually striking [the victim] on his head and body

with the hammer.” Defendant “also hit the victim in the

lower back several times with the butt of the shotgun .

. . .” Defendant suffered only a laceration to his finger

and neck pain.

Defendant maintains his attack on the victim was

justified. Defendant describes the events in the Motion.

[D]efendant pulled into his driveway of his

residence and found the so-called victim .

. . loading stolen property into his vehicle,

property that belonged to defendant and

was in his place of residence. Where [the

victim] had unlawfully entered [and]

removed said property. Defendant’s

property could be clearly seen in the back

of [the victim’s] vehicle.

Defendant’s presentation of facts does not justify his

use of deadly force against the victim. Defendant could

not reasonably believe he was in “imminent fear of

death or great bodily harm” when he was the aggressor

and the victim took no steps to harm Defendant. Given

Defendant’s account of the facts, he is unable to show a

meaningful factual dispute.

On March 29, 2017, the Court conducted an evidentiary

hearing on Ground Four of the instant Motion. At the

hearing, however, Defendant questioned his trial

counsel, Philip A. Bavington, about counsel’s decision

not to pursue a Stand Your Ground defense. According

to Bavington, after reviewing the facts and the

depositions, it was clear to him a Stand Your Ground

defense was not appropriate.

At an evidentiary hearing, a defendant has the burden

to prove a claim of ineffective assistance of counsel.

Pennington v. State, 34 So. 3d 151, 154 (Fla. 1st DCA

2010). Once the defendant presents evidence to support

his claim, the state must present contradictory

evidence. Id. at 154-55. Then, “it is within the province

of the trier of fact to assess the credibility of witnesses,

and upon the testimony found by it to be worthy of

belief and reject such testimony found by it to be

untrue.” Bussell v. State, 66 So. 3d 1059, 1062 (Fla. 1st

DCA 2011). The Court finds Bavington’s testimony

more credible than Defendant’s allegations and

testimony. Defendant is not entitled to relief on Ground

One.

Id. at 29-31 (footnote in original but renumbered and record citations omitted).

While Petitioner, with help from counsel, filed an appeal following the

trial court’s denial of his Rule 3.850 motion, his counseled initial brief only

contesting the trial court’s summary denial of ground three of his motion,

asserting no arguments regarding the trial court’s denial of this claim. See

Resp. Ex. F. Florida Rule of Appellate Procedure 9.141 requires a petitioner to

file an appellate brief if he received an evidentiary hearing on one or more

claims. Fla. R. App. P. 9.141(b)(3)(C) (requiring the filing of an initial brief after

the grant or denial of a Rule 3.850 motion if an evidentiary hearing was held on

one or more claims). If a specific issue is not included in the required appellate

brief, that issue is considered abandoned on appeal. Atwater v. Crosby, 451 F.3d

799, 809-10 (11th Cir. 2006) (“Pursuant to state procedural rules, abandonment

of an issue results from submission of a brief without argument thereon in an

appeal of an order denying relief after an evidentiary hearing.” (citing Shere v.

State, 742 So. 2d 215, 217 n.6 (Fla. 1999)); see also Cortes v. Gladish, 216 F.

App’x. 897, 899-900 (11th Cir. 2007) (recognizing that if the petitioner “received

an evidentiary hearing, his failure to address issues in his appellate brief would

constitute a waiver”).

Here, since Petitioner received an evidentiary hearing on his Rule 3.850

motion, his appellate brief needed to address each claim he wanted the

appellate court to review. Petitioner did not brief this claim, electing to brief

only the issues raised in ground three of his Rule 3.850 motion. Petitioner’s

failure to fully brief this issue constituted a waiver of the allegations here. Thus,

Petitioner has failed to exhaust this claim. See O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999) (“[S]tate prisoners must give the state courts one full

opportunity to resolve any constitutional issues by invoking one complete round

of the State’s established appellate review process.”); see also Nieves v. Sec’y,

Fla. Dep’t of Corr., 770 F. App’x 520, 521 (11th Cir. 2019) (“In

Florida, exhaustion usually requires not only the filing of a [Rule] 3.850 motion,

but an appeal from its denial.”) (quoting Leonard v. Wainwright, 601 F.2d 807,

808 (5th Cir. 1979)); LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1260-

61 (11th Cir. 2005) (“We also conclude that the defendant failed to

properly exhaust this issue when he failed to raise it . . . in his appeal of the

State 3.850 Court’s decision.”).

In his Reply, Petitioner states his counsel’s failure to raise this issue in

the postconviction appeal is “cause” to excuse the bar under Martinez. But the

limited exception in Martinez applies only “where (1) a state requires a prisoner

to raise ineffective-trial-counsel claims at an initial-review collateral

proceeding; (2) the prisoner failed properly to raise ineffective-trial-counsel

claims in his state initial-review collateral proceedings; (3) the prisoner did not

have collateral counsel or his counsel was ineffective; and (4) failing to excuse

the prisoner’s procedural default would cause the prisoner to lose a ‘substantial’

ineffective-trial-counsel claim.” Lambrix v. Sec’y, Dep’t of Corr., 756 F.3d 1246,

1260 (11th Cir. 2014) (emphasis added). Importantly, Martinez “does not

concern attorney errors in other kinds of proceedings, including appeals from

initial-review collateral proceedings . . . .” Id. (citation omitted). Here,

Petitioner’s claim is defaulted because although he raised the claim in his pro

se Rule 3.850 Motion, his counsel did not raise the claim in his 3.850 appeal.

And “the Supreme Court has explicitly held that attorney errors made in

appeals from initial-review collateral proceedings do not constitute cause

excusing a procedural default.” Baker v. Dep’t of Corr., Sec’y, 634 F. App’x 689,

694 (11th Cir. 2015). Thus, Martinez does not apply. Likewise, Petitioner does

not otherwise argue other forms of cause and prejudice from the procedural

default, nor does he assert that a fundamental miscarriage of justice will result

if this claim is not addressed on the merits. Thus, this claim is unexhausted and

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 the dismissal of this case, the Court denies a

certificate of appealability.!2. 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.

DONE AND ORDERED at Jacksonville, Florida, this 30th day of

January, 2026.

& Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

12 The Court should issue a certificate of appealability only if a 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)). Upon due consideration,

the Court will deny a certificate of appealability.

27

JaxP-12

C: Steven Franklin Hughes, Jr., #J52421

Counsel of record