Tondreau-Leve

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ALICIA TONDREAU-LEVE,

Petitioner,

v. Case No. 8:25-cv-229-MSS-SPF

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________/

O R D E R

Tondreau-Leve filed a petition for a writ of habeas corpus under 28 U.S.C.

§ 2254 challenging her state court convictions for racketeering, conspiracy to engage

in racketeering, dealing in stolen property, and money laundering. After reviewing the

petition (Doc. 1), the response (Doc. 8), the reply (Doc. 9), and the relevant state court

record, the Court DENIES the petition.

PROCEDURAL HISTORY

A jury found Tondreau-Leve guilty of racketeering, conspiracy to engage in

racketeering, dealing in stolen property, and two counts of money laundering. (Doc.

8-2 at 834–39) The trial judge sentenced Tondreau-Leve to twenty years in prison for

the racketeering conviction, a concurrent twenty years in prison for the racketeering

conspiracy conviction, a consecutive twenty years of probation for the dealing in stolen

property conviction, and a concurrent twenty years of probation for the money

laundering convictions. (Doc. 8-2 at 934–43) Tondreau-Leve appealed, and the state

appellate court affirmed. (Doc. 8-2 at 1007)

Tondreau-Leve filed a motion for post-conviction relief (Doc. 8-2 at 1067–98),

the post-conviction court denied relief (Doc. 8-2 at 1101–05, 1967–68), and the state

appellate court affirmed in part and reversed in part and remanded the case for a ruling

on a claim overlooked by the post-conviction court. (Doc. 8-2 at 2029–30) On remand,

the post-conviction court denied relief (Doc. 8-2 at 2043–44), and the state appellate

court affirmed. (Doc. 8-2 at 2071)

Tondreau-Leve’s federal petition followed. In her federal petition, Tondreau-

Leve asserts that trial counsel deficiently performed by not objecting to the trial judge’s

consideration of her lack of remorse at sentencing. (Doc. 1 at 5)

FACTS1

Evidence at trial proved that Tondreau-Leve purchased baby formula from

persons who obtained the formula from the State of Florida’s Woman, Infants, and

Children program. The WIC program is a federally funded program that provides food

to poverty-stricken families without cost. Also, Tondreau-Leve purchased baby

formula from persons who stole formula from grocery stores. Tondreau-Leve resold

the formula for a profit to buyers who lived in other states.

Tondreau-Leve and her husband advertised the formula on Craigslist through a

business called Formula Mom. An auditor with the WIC program called a telephone

1 This summary of the evidence derives from Tondreau-Leve’s and the State of Florida’s briefs

on direct appeal. (Docs. 8-2 at 955–62, 975–93)

number on an advertisement, spoke with Tondreau-Leve, informed her that she was

unlawfully selling the formula, and asked her to stop. Tondreau-Leve admitted that

she purchased the formula from persons in the WIC program, denied that she was

acting unlawfully, and refused to stop selling the formula.

Tondreau-Leve purchased baby formula from an undercover police officer.

After purchasing small quantities from the officer, Tondreau-Leve purchased three

thousand cans of formula wrapped in six pallets with stickers identifying a grocery

store as the owner of the product. During the sale, Tondreau-Leve removed from a

pallet a sticker that identified the grocery store as the owner of the product and gave

the sticker to her husband. Tondreau-Leve paid $33,000.00 in cash to the undercover

officer for the formula. The retail value of the formula was over $100,000.00.

Tondreau-Leve kept formula that she purchased in a storage unit that was not

air conditioned. She recruited other persons to purchase stolen formula and formula

from the WIC program. She told recruits that she did not want to know how they

obtained the formula. She showed a recruit how to use rubbing alcohol to wipe off an

expiration date on a can of formula. She told several recruits that she purchased

formula from drug addicts who needed money to purchase drugs. She told a recruit

that the recruit should not keep formula in her car because police could seize the

formula and arrest the recruit for possessing the formula.

STANDARDS OF REVIEW

AEDPA

Because Tondreau-Leve filed her federal petition after the enactment of the

Antiterrorism and Effective Death Penalty Act, AEDPA governs her claim. Lindh v.

Murphy, 521 U.S. 320, 327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim —

(1) resulted in a decision that was contrary

to, or involved an unreasonable

application of, clearly established

Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the

facts in light of the evidence presented

in the State court proceeding.

A decision is “contrary to” clearly established federal law “if the state court

arrives at a conclusion opposite to that reached by [the U.S. Supreme Court] on a

question of law or if the state court decides a case differently than [the U.S. Supreme

Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.

362, 413 (2000). A decision involves an unreasonable application of clearly

established federal law “if the state court identifies the correct governing legal

principle from [the U.S. Supreme Court’s] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. Clearly

established federal law refers to the holding of an opinion by the U.S. Supreme Court

at the time of the relevant state court decision. Williams, 529 U.S. at 412.

“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court

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

685, 693 (2002). A federal petitioner must show that the state court’s ruling was “so

lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility of fairminded disagreement.” Harrington v.

Richter, 562 U.S. 86, 103 (2011).

Ineffective Assistance of Counsel

Tondreau-Leve asserts ineffective assistance of counsel — a difficult claim to

sustain. Strickland v. Washington, 466 U.S. 668, 687 (1984), explains that a petitioner

must demonstrate both deficient performance and prejudice:

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable.

“There is no reason for a court . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.

“[C]ounsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Strickland,

466 U.S. at 690. “[A] court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690.

“An error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691. To demonstrate prejudice, “the defendant

must show that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Hill, 474

U.S. at 59. A reasonable probability is a “probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable.” Strickland,

466 U.S. at 690–91. A defendant cannot meet his burden by showing that the avenue

chosen by counsel was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21

(11th Cir. 1992).

Because the standards under Strickland and AEDPA are both highly

deferential, “when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S.

at 105. “Given the double deference due, it is a ‘rare case in which an ineffective

assistance of counsel claim that was denied on the merits in state court is found to

merit relief in a federal habeas proceeding.’” Nance v. Warden, Ga. Diag. Prison, 922

F.3d 1298, 1303 (11th Cir. 2019) (citation omitted).

ANALYSIS

Ground One

Tondreau-Leve asserts that trial counsel deficiently performed by not objecting

to the trial judge’s consideration of her lack of remorse during sentencing. (Doc. 1 at

5, 17) The post-conviction court denied the claim as follows (Doc. 8-2 at 1967–68):

Defendant argues that counsel failed to object when the

court considered the Defendant’s lack of remorse during

sentencing. The State responded that the claim was

conclusory and speculative at best. The State pointed out

that the Court used the correct standard during sentencing

. . . . After review of the State’s response, incorporated

herein, the Court agrees.

In the response to Tondreau-Leve’s motion for post-conviction relief, the

prosecutor presented the following argument (Doc. 8-2 at 1228–29) (state court

record citations omitted):

[Tondreau-Leve’s] claim is wholly conclusory; based upon

nothing more than self-serving speculation. [Tondreau-

Leve] has failed to demonstrate either prong under

Strickland; thus, this claim should be denied without the

necessity of an evidentiary hearing.

Prior to imposing [a] sentenc[e], Judge Durden clearly

articulated the correct legal standard for imposing [a]

sentenc[e], stating:

Florida Statutes clearly indicate that the

primary purpose of sentencing is punishment

and other considerations being secondary or

ancillary to that.

Judge Durden goes on to highlight [Tondreau-Leve’s] lack

of concern. During his remarks below, he focuses on the

lack of concern that [Tondreau-Leve] showed for others,

even though he uses the word remorse in the final

sentence.

[Trial judge:] I find it kind of interesting here and

while I empathize with — and I’m

going to speak to both defendants, even

though I’m only addressing Mrs.

[Tondreau-Leve]. But both parents

obviously have great concern for their

family and other family members, as is

understandable, and there’s certainly

nothing wrong with that. Any parent

would have great concern for their

children, for their own parents,

especially if they’re sick and elderly

and getting on in years. But I find it

curious during Ms. [Tondreau-Leve’s]

statement that there wasn’t a single

word about your impact on others

besides yourself, or your own family

members. No concern expressed for

other mothers, for the people that were

wrapped up in your scheme, and the

effect this had on them, for infants who

may have been deprived of formula, for

infants who may have ended up with

tainted formula having been shipped

out of state. Remarkable that there

wasn’t a single word of remorse or

regret for anyone other than yourself

and your immediate family. That

concerned me.

At sentencing, Tondreau-Leve’s sister and son asked the trial judge for

leniency because Tondreau-Leve’s two teenaged sons needed her care. (Doc. 8-2 at

853–64) A director of loss prevention and safety for a grocery store asked the trial

judge to impose the maximum sentence because Tondreau-Leve recruited others to

steal from the grocery store, the grocery store expended significant resources to

investigate the thefts, and the grocery store lost over $1,000,000.00 from the thefts.

(Doc. 8-2 at 868–72) A director of the WIC program asked the trial judge to impose

the maximum sentence because Tondreau-Leve’s crimes prevented infants in

impoverished families from receiving adequate nutrition and because Tondreau-Leve

preyed on impoverished families who needed money. (Doc. 8-2 at 873–78)

At sentencing, Tondreau-Leve requested leniency as follows (Doc. 8-2 at

881–90):

[Tondreau-Leve:] Hi, good afternoon, Judge

Durden.

[Trial judge:] Good afternoon.

[Tondreau-Leve:] Through this whole trial,

I haven’t been able to — you

haven’t been able to see who

I am. Some of the letters that

you have received tell you a little

bit about myself and quite a bit

about who I am, how I was

raised.

Your Honor, I was raised in a

strong Catholic home. My father

was a police officer. My mother

was a stay-at-home mom. You

know, we did — we did family

vacations. You know, I never

got in trouble with the law

before. I was afraid to. My father

was a police officer. I couldn’t

— you know, I knew right from

wrong.

You know, skipping over my

teen years, you know, when

I first met my husband, Alan,

you know, and we got married

— actually, before that my

mother was diagnosed with

breast cancer. You know, I spent

eighteen years caring for her, me

and my father. My sisters, they

lived out of state, but it was

really me and my father. We

took care of her. We were

running into Boston all the time

bringing her to appointments.

I remember having my youngest

son — he arrived five weeks

early. Like, within a week of

delivering him, I was on my

mother’s bed at Beth Israel

Hospital holding her hand

because she had just found a

tumor in her neck, and she had

to get surgery.

You know, it didn’t — you

know, this is the type of person

that I was. You know, I took

care of people. I took care of my

mother. I took care of my

grandmother growing up. I take

care of my father who is here in

court. He’s eighty-six years old.

He’s a snowbird. He comes

down during the winter. He lives

in Treasure Island. I run back

and forth if he needs me. I’m

there for him. You know, he has

pneumonia several times, and

I just run down and make sure

he’s okay.

You know, raising my two boys,

I followed in my mother’s

footsteps. I was a stay-at-home

mom. My husband worked. He

was the breadwinner of the

family. I pride myself on — you

know, I never said I don’t have

any value, because I do have —

I do have value. I always had

value in raising my kids.

You know, you saw my son

come up here. You know, he’s

a junior at Stetson University.

He’s really supposed to be

a sophomore. Why? Because,

you know, he was encouraged to

take all these AP classes in

school, and he was able to skip

over a year of college. So, now

he’s a junior.

Originally, he wanted to go to

Stetson because he wanted to be

a lawyer. He saw [ ] how it was.

He saw how it ran. And he said,

“You know, Mommy, I don’t

really know if I want to be

a lawyer, because I don’t have”

— well, backing up, being in the

mock trial club, when you start

competing, you’re chosen to be

either on the prosecution side or

the defense depending on the

competition you’re at, at which

school.

And you know, he — he was

chosen sometimes as a witness

for the prosecution. He said,

“I don’t know if I can be a

lawyer,” he said, “because you

have to put your heart aside, and

I’m too sensitive. I’m too

sensitive to do that.”

I said, “Well, Tyler, you don’t

have to be a trial attorney. You

know, you can be a corporate

attorney.”

So, he said, “Well, that’s a good

idea.” So, he decided he’s going

to be a finance major with

a track of law. You know, he

went and visited the law school

down in St. Pete, and the

students, you know, told them a

lot about the school, and you

know, what to expect in case

you go into law.

And he said, “You know, they

all said they’re really cut-throat.

They really” — you know, and

I don’t know if this was just his

impression or not, but it sort of

deterred him from going into

law.

And I said, “You know, don’t —

you know, you need to still stay

focused. You know, go with

what your heart says.”

You know, he got these qualities

from me and my husband.

I mean, I have been home with

them for their whole life. I have

instilled — you know, he read —

this is the first time I heard his

letter that he sent to you, and it

makes a parent really proud

when your child actually can

write something that you have

taught them. And you don’t

know if — you don’t know if

you have gotten across to them

all the values that you want

them to be. You know, not just,

you know, a bright student

because, you know, bright is

fine, but you have to have

a heart. You have to have a heart

in life. You can’t, you know, just

be out for me, me, me.

And when I heard him read that

letter, I was, like, wow, he

actually — he got what I was

trying to teach him. He got what

I was trying to teach him.

You know, my other son, he’s

a totally different student —

different person than my son,

Tyler. He’s very focused. You

know, like his brother says, he’s

a musician, wonderful jazz

musician, plays the saxophone.

Again, he’s a 4.0 student. He’s

in the marching band. He’s got

all AP classes.

You know, he’s preparing for

college right now, which is

really difficult. You know, I’ve

brought him on tours of colleges

over the last year before I was

incarcerated. And, you know,

he strives to go to Brown

University. That’s where his

number one school is.

You know, we have all raised

children, but when you can

actually say, you know, the job

that you have done has made

this individual, and you’re

proud of them — and that’s

really something. And I’m

proud. I’m so proud of my kids,

and I would never teach them

wrong.

I didn’t cry when Tyler read his

letter. My husband cried.

I didn’t cry because I have

always been the matriarch of the

family, always the glue, the

strong one. Maybe that’s the

mother’s role when she’s a stay-

at-home mom. My heart was

tearing up inside. You know,

I just wanted to get up and wrap

my arms around him and say,

“It’s okay, Tyler. It’s okay.”

I don’t want to be taken away

from my kids. I still feel —

I thought I would put up a wall

and not let anybody in, get close

to me after all of this. I said, you

know, I can’t trust people out

there. I don’t know who to trust.

I don’t know who not to trust.

And I have tried that, but that’s

not who I am. My first priority

is to give to people, and I got

hurt by it. I got hurt by a lot of

people. But I don’t want it to

change who I am, and I don’t

want my children to change who

they are.

You know, I still give — you

know, like my husband said,

we’re caregivers of his father.

And I was able to talk to him for

the first time last weekend. He’s

in — he’s in assistive — he’s in a

rehab right now for his broken

hip, and my son went by to see

him. And I called at the same

time, and I was able to talk to

him. It was the first time I had

said hi to him in seven weeks.

And, you know, I apologized.

I felt like I abandoned him. And

he said, “Oh no, you didn’t

abandon me.”

But I want to be there. We

would go and take care of his

needs. Every other day [we]

would be in Melbourne just

taking care of him, bringing him

what he needs there.

You know, like I said, I’m a

giving person. And I ask the

court, you know, if I have to be

punished for what I have been

charged for, I accept that. But

you have the final decision,

Judge Durden. I know you can

give me something that would

allow me to still be at home with

my family. I know you can —

whether it’s house arrest or a

long-term probation, you know,

I can — I can go volunteer

wherever you would like,

Salvation Army, forever if you

want, because — and I would

enjoy doing that.

I don’t feel by locking me up

with hard criminals would be a

service to anybody where

I could give back to the court

more of myself by giving to

more people. So, at this time,

I would really like to plead to the

court to extend leniency towards

me, whether it be house arrest or

probation. I know you’ve done

that before, and I would really

like for you to consider my

position and to keep me with my

family, my sons, so that I can

continue to direct them in the

right direction.

I have my family here. You have

seen my sisters here, both my

sisters, my brother, my father.

They all flew in for me. You

know, this is the core of my

family. This is who we are. We

have these people who are

supporting me, and that’s what

I have done all my life for

everybody else.

You know, I lost my mother to

breast cancer, and three years

after I developed breast cancer.

And I thought I was going to be

taken away from my sons at that

time. They were seven and eight

years old, and I was very scared

that I was going to — I was

going to die. But eleven years

later, I’m here. And we have all

gone through trials and

tribulations, but that’s what

makes us human. Human beings

make errors in judgment, or you

know, just make poor choices

sometimes.

And everybody makes —

everybody deserves second

chances. I had just recovered

from breast cancer, and we were

on vacation in Lake George, and

there was a mountain that we

needed to climb with the boys.

And I struggled. I had just

finished my chemo, and

I struggled. And I couldn’t make

it, and I had them encouraging

me. And I made it, because the

picture at the top of the

mountain was the four of us.

And I had my baseball cap on

because I was bald. And that

was our Christmas card that

year, and I have still it.

And what it teaches me is you’re

going to go through trials in life,

but you can survive, and that’s

what I did. So, again, I plead to

the court, you know, please

consider my request, my

husband’s request. We’re not

bad people. We’re not bad

people at all. I would like to stay

home with my children as long

as I can.

Thank you, Judge.

After hearing argument from the parties, the trial judge sentenced Tondreau-

Leve as follows (Doc. 8-2 at 909–13):

[Trial judge:] Ms. [Tondreau-Leve], I’m going

to sentence you first.

[Trial counsel:] Do you want us to come

forward?

[Trial judge:] Yeah. Why don’t you come up

here.

All right. The defendant stands

before the court having been

convicted of five first-degree

felonies. Each of those is

punishable by thirty years in

state prison, for a total

maximum sentence of one-

hundred-fifty years in Florida

State Prison if the court chose to

run those consecutively.

Her scoresheet — I think it came

out to about twelve and a half

years. That’s a low end of

guidelines, right?

[Trial counsel:] Yes, sir.

[Trial judge:] And with regard to — and

counsel kind of acknowledges

there’s probably less compelling

reasons in her case with regard

to the co-defendant. However,

I have reviewed those reasons,

and I don’t find any of them

applicable in her case. And if

any of them were arguably

applicable, I don’t find that

there’s a sufficient factual basis

that’s been established to apply

one of those with the requisite

degree of proof required by case

law in her case.

Some further observations.

I think there is a concern raised

by some law with a court

seeking to send messages,

whether it’s an argument to a

jury to send a message or

whether it’s an argument at

sentencing. I seem to recall

something fairly recently in that

regard, and I don’t think that’s

the overall purpose or role.

To the extent that somebody

may derive a message, so be it,

but that’s not the purpose of the

court in determining sentencing.

Florida Statutes clearly indicate

that the primary purpose of

sentencing is punishment and

other considerations being

secondary or ancillary to that.

I find it kind of interesting here

— and while I empathize with

— and I’m going to speak to

both defendants even though

I’m only addressing Mrs.

[Tondreau-Leve]. But both

parents obviously have great

concern for their family and

other family members, as is

understandable, and there’s

certainly nothing wrong with

that. Any parent would have

great concern for their children,

for their own parents, especially

if they’re sick and elderly and

getting on in years.

But I find it curious during Mrs.

[Tondreau-Leve’s] statement

that there wasn’t a single word

about your impact on others

besides yourself or your own

family members. No concern

expressed for other mothers, for

the people that were wrapped up

in your scheme and the effect

this had on them, for infants

who may have been deprived of

formula, for infants who may

have ended up with tainted

formula having been shipped

out of state. Remarkable that

there wasn’t a single word of

remorse or regret for anyone

other than yourself and your

immediate family. That

concerned me.

This is a case the scope of which

makes it impossible to

determine restitution.

Restitution isn’t being sought.

Even if it was, it would be

virtually impossible to

determine who is owed what.

The scope and breadth of this

was so great over such a period

of time involving so many

victims that it’s just an

impossibility. One reason for a

downward departure is the need

for restitution. That can’t even

be determined in this case. It

would be an impossibility.

All right. You’re adjudicated

guilty on each of the five

offenses. On Counts One and

Two, racketeering and

conspiracy, you’re sentenced to

twenty years in Florida State

Prison, toward which you’ll

receive credit for all time served.

On Count Three, dealing in

stolen property, [Count] Five,

money laundering, and [Count]

Six, money laundering, you’re

sentenced to twenty years of

probation to run consecutive

with the prison terms and

concurrent one with the other

for a total of twenty plus twenty.

Tondreau-Leve asserts that trial counsel deficiently performed by not objecting

to the trial judge’s consideration of her lack of remorse during sentencing. (Doc. 1

at 5) At the time of Tondreau-Leve’s sentencing, Florida law prohibited a trial judge

from aggravating a sentence because of the defendant’s lack of remorse. Pope v. State,

441 So. 2d 1073, 1078 (Fla. 1983), a capital case, held that “lack of remorse should

have no place in the consideration of aggravating factors,” and that “[a]ny

convincing evidence of remorse may properly be considered in mitigation of the

sentence, but absence of remorse should not be weighed either as an aggravating

factor nor as an enhancement of an aggravating factor.” Also, Holton v. State, 573 So.

2d 284, 292 (Fla. 1990), another capital case, further held that “[a] trial court violates

due process by using a protestation of innocence against a defendant [during both]

the penalty phase [and] the guilt phase under article I, section 9 of the Florida

Constitution.”

The district courts of appeal extended the holdings in Pope and Holton to

non-capital sentencing hearings. See Brown v. State, 27 So. 3d 181, 183 (Fla. 2d DCA

2010); Bracero v. State, 10 So. 3d 664, 665–66 (Fla. 2d DCA 2009). Brown, 27 So. 3d

at 183 (quoting Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004)), explained

that “‘[a]lthough remorse and an admission of guilt may be grounds for mitigation

of sentence, the opposite is not true. Reliance on these impermissible factors violates

the defendant’s due process rights.’”

After Tondreau-Leve’s convictions and sentences became final, the Florida

Supreme Court considered “whether a trial court’s consideration of failure to take

responsibility during a sentencing proceeding necessarily violates a defendant’s due

process rights” and held “when a defendant voluntarily chooses to allocute at a

sentencing hearing, the sentencing court is permitted to consider the defendant's

freely offered statements, including those indicating a failure to accept

responsibility.” Davis v. State, 332 So. 3d 970, 971, 978 (Fla. 2021). The Florida

Supreme Court determined that Pope and Holton do not apply to non-capital

sentencing hearings because a sentencing judge in a non-capital case does not weigh

aggravating circumstances against mitigating circumstances and further determined

that the language in Holton prohibiting the use of “a protestation of innocence against

a defendant” constitutes dicta. Davis, 332 So. 3d at 975–76.

Deficient Performance

Because Strickland requires a judge to evaluate counsel’s conduct at the time

of representation and without the benefit of hindsight, this Court evaluates the

deficient performance prong of Tondreau-Leve’s claim with Florida law that applied

at the time of her sentencing. Strickland, 466 U.S. at 689 (“A fair assessment of

attorney performance requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.”). Rambaran v.

Sec’y, Dep’t Corrs., 821 F.3d 1325 (11th Cir. 2016) (“‘[W]e have held many times that

reasonably effective representation cannot and does not include a [r]equirement to

make arguments based on predictions of how the law may develop.’”) (citation

omitted).

During her allocution at sentencing, Tondreau-Leve asked the trial judge for

leniency so that she could care for her father, her father-in-law, and her children. The

trial judge considered and rejected her request for leniency because in part Tondreau-

Leve failed to consider the impact of her criminal acts on persons other than her

family and failed to show remorse or regret for her criminal acts. Because the trial

judge did not aggravate Tondreau-Leve’s sentence because of her lack of remorse and

instead rejected her request for leniency because of her lack of remorse, an objection

to the trial judge’s consideration of remorse would not have succeeded. Rankin v.

State, 174 So. 3d 1092, 1097 (Fla. 4th DCA 2015) (“Consideration of remorse is,

however, appropriate if it occurs during a court’s consideration of whether or not to

mitigate a sentence.”) (citing Shelton v. State, 59 So. 3d 248, 250 (Fla. 4th DCA

2011)).

Also, under Florida law, a trial judge may impose a sentence up to the

statutory maximum. § 921.002(1)(g), Fla. Stat. (“The trial court judge may impose a

sentence up to and including the statutory maximum for any offense . . . .”).2 A trial

judge may not impose a sentence below the lowest permissible sentence under the

2 When enacting the current Criminal Punishment Code, the Florida legislature

abolished an upward departure. Davis v. State, 268 So. 3d 958, 965 (Fla. 1st DCA 2019)

(“After the Criminal Punishment Code’s enactment, our sentencing statutes no longer

‘contemplate upward departure sentences, because generally the statutory maximum

sentence is the highest possible sentence for any crime.’”) (citation omitted).

Criminal Punishment Code unless a defendant demonstrates a valid reason for a

downward departure. § 921.0024(2), Fla. Stat. At sentencing, the trial judge

determined that the statutory maximum sentence was 150 years in prison and the

lowest permissible sentence was twelve and a half years in prison. (Doc. 8-2 at 910)

Trial counsel argued that the trial judge should depart downward from the

lowest permissible sentence because the crimes lacked sophistication, the criminal

activity was not widespread, and the sale of formula was only a small portion of the

company’s total business (Doc. 8-2 at 895–98) (bolding added):

[Trial counsel:] Judge, there’s a couple of factors that

I believe Mr. Leve, in particular,

qualif[ies] for in terms of mitigation.

I have to respectfully disagree with the

Publix representative. I don’t think

there was anything sophisticated about

this. It’s nothing more than placing an

ad and paying people money to sell a

product. I also disagree that even the

evidence supported that any of these

people were solicited to [sell].

I think what the evidence shows is a

lack of oversight by my client, Alicia

[Tondreau-Leve]. And with Alan

Leve, as I stated to the jury, nothing

more than doing what he felt was his

responsibilities as a husband. To that

extent, he was operating under her

direction, and his actions are isolated

in terms of their scope and were done

in a very unsophisticated manner.

I understand where both of them score

in the sentencing guidelines. We raised

a number of issues that we intend to go

forward with [on] appeal. I have

prepared appeal paperwork for the end

of this, and my office will be

electronically filing it. I think I brought

courtesy copies of those filings for the

Court. I found that I only had Alan’s,

but they’re identical in nature.

I would ask the Court to consider a

below the guidelines sentence for

both of them, but more particularly

Alan. He scores, I believe,

approximately twenty-one months.

I think he would be a good candidate

for community control followed by a

term of probation. That would allow

him to continue to take care of the

family obligations.

I understand the mitigating factors in

terms of the jury verdict on Alicia

[Tondreau-Leve] are not the same as

Alan and that there are far fewer

grounds for the Court for a downward

departure in that situation. But I would

ask for nothing more than a guidelines

sentence for her.

Neither of my clients had a criminal

history at all in terms of this.

I understand the arguments that are

made, that by — or due to the fact that

they were offering and, more

particularly Formula Mom as a

company was offering, to purchase

[and] that people took advantage of

that.

But I do find it somewhat interesting in

terms of this particular case that the

individuals who actually committed

the thefts and sold to the people [ ] are

being characterized as low-level

offen[ders] in terms of [ ] suffer[ing]

insignificant penalties for actually

causing the loss and causing the risk in

terms of that.

In terms of the overall business, in

terms of the evidence that was

presented in this case, what was

presented in terms of criminal activity

and proving to be criminal activity

based on the total numbers that we’re

talking about, was a relatively small

portion of the business. The argument

is that all of it must have been equally

bad without any proof to support that,

and I believe that the Court needs to

make a decision based on the evidence

that was presented in terms of the

impact of that and then look at that.

The State, while it was a long trial, had

the opportunity to try and

demonstrate, if they could, that it was

more widespread than the people they

actually brought in who confessed to

stealing and selling. No evidence of

that nature was presented. There was a

lot of argument made that those must

have been equally bad, but the

evidence does not necessarily support

that.

So, again, I would ask the Court to give

consideration to my clients’ lack of

criminal history, in particular Mr.

Leve’s role in this, and the mitigating

factors that apply to him and sentence

accordingly.

A trial judge may depart downward if a defendant demonstrates that “[t]he

offense was committed in an unsophisticated manner and was an isolated incident

for which the defendant has shown remorse.” § 921.0026(2)(j), Fla. Stat. Because

trial counsel argued that the lack of sophistication and the isolated nature of the

crimes justified a downward departure, the trial judge also appropriately considered

under Section 921.0026(j), whether Tondreau-Leve and her husband showed

remorse for their actions. Geske v. State, 378 So. 3d 1199, 1207 (Fla. 2d DCA 2024)

(“This is not a case where the trial court equated Geske’s exercise of his constitutional

rights with a lack of remorse. . . . Rather, it is evident that in determining whether

Geske was entitled to a downward departure under Section 921.0026(2)(j), the trial

court properly considered whether Geske had shown remorse or accepted

responsibility, a necessary requirement for that statutory ground.”).

Because an objection to the trial judge’s consideration of remorse would not

have succeeded, Tondreau-Leve failed to demonstrate deficient performance under

Strickland. Pinkney v. Sec’y, Dep’t Corrs., 876 F.3d 1290, 1297 (11th Cir. 2017)

(“[A]n attorney will not be held to have performed deficiently for failing to perform

a futile act, one that would not have gotten his client any relief.”).

Prejudice

At the time of Tondreau-Leve’s sentencing, opinions by district courts of

appeal prohibited a trial judge from considering lack of remorse at sentencing. After

Tondreau-Leve’s convictions and sentences became final, Davis, 332 So. 3d at 978,

held that a trial judge may consider a defendant’s lack of remorse if the defendant

voluntarily allocutes at sentencing.

Guzman v. Sec’y, Dep’t Corrs., 73 F.4th 1251, 1255–56 (11th Cir. 2023), explains

that, if a change in state law occurs after a defendant’s conviction and sentence

becomes final, prejudice under Strickland for a claim that turns on state law is

measured against the new state law:

In Lockhart v. Fretwell, the Supreme Court faced the same

atypical issue animating this appeal: a change in the law.

There, as here, the petitioner claimed that his counsel was

ineffective for failing to make an objection (at trial rather

than on appeal). Fretwell, 506 U.S. at 367. And there, as

here, by the time the district court decided his federal

habeas case, the legal basis for the objection no longer

existed because the necessary precedent had been

overruled. Id. at 367–68. Relying on the older law, the

district court granted habeas relief (and the appellate court

affirmed) because the omitted objection would have

succeeded had it been made at the time of trial. Id.

The Supreme Court reversed, holding that a Strickland

prejudice analysis “focusing solely on mere outcome

determination, without attention to whether the result of

the proceeding was fundamentally unfair or unreliable, is

defective.” Id. at 369. Put another way, even if a defendant

can show “a reasonable probability of a different result”

without counsel’s error, that is not always the end of the

matter under Strickland. See id. at 369–70. “The essence of

an ineffective-assistance claim is that counsel’s

unprofessional errors so upset the adversarial balance

between defense and prosecution that the trial was

rendered unfair and the verdict rendered suspect.” Id. at

369 (quoting Kimmelman v. Morrison, 477 U.S. 365, 374,

(1986)). Thus, Strickland prejudice also requires that the

result of a defendant’s proceeding be “unfair or

unreliable.” Id.

In refining the prejudice analysis in this way, the Court

emphasized that it was “neither unfair nor unreliable” to

evaluate the result of an earlier proceeding through the lens

of current law. Id. at 371. More specifically, no prejudice

exists “if the ineffectiveness of counsel does not deprive the

defendant of any substantive or procedural right to which

the law entitles him” — present tense. Id. at 372 (emphasis

added). So, unless the defendant would be entitled to

habeas relief under current state law, there is no prejudice.

In Guzman, 73 F.4th at 1254, the petitioner asserted that appellate counsel

deficiently performed by not arguing on direct appeal that the trial judge erred by

failing to instruct the jury on excusable homicide. At the time of Guzman’s direct

appeal, an opinion by the Florida Supreme Court required reversal of his convictions

and a new trial. Guzman, 73 F.4th at 1254 (citing State v. Lucas, 645 So. 2d 425 (Fla.

1994)). However, while Guzman’s federal habeas petition was pending, a new

opinion by the Florida Supreme Court held that reversal was not required. Guzman,

73 F.4th at 1254–55 (citing Knight v. State, 286 So. 3d 147 (Fla. 2019)). Measuring

prejudice under Strickland against the new opinion by the Florida Supreme Court,

Guzman, 73 F.4th at 1256, held that the petitioner failed to demonstrate prejudice.

Davis, 332 So. 3d at 978, holds that “when a defendant voluntarily chooses to

allocute at a sentencing hearing, the sentencing court is permitted to consider the

defendant’s freely offered statements, including those indicating a failure to accept

responsibility.” The opinion clarifies that “[l]ack of remorse and failure to take

responsibility ordinarily are simply different ways of characterizing the same attitude

manifested by a defendant.” Davis, 332 So. 3d at 974 n.2. The opinion distinguishes

Holton because a judge at a non-capital sentencing does not weigh aggravating

circumstances and mitigating and determines that “Holton’s broad, unqualified

statement that using a protestation of innocence against a defendant violates due

process . . . constitutes dicta that [the court] expressly disapprove[d].” Davis, 332 So.

3d at 975.

The opinion explains that, because a defendant who allocates at sentencing

waives her right to remain silent, a trial judge does not violate a defendant’s rights

by considering the statements voluntarily made when imposing a sentence. Davis,

332 So. 3d at 977. The opinion further explains that, because Florida law permits a

trial judge to impose any sentence up to the statutory maximum sentence, and

because due process gives a judge broad discretion to consider different types of

evidence at sentencing, a judge may consider whether a defendant takes

responsibility for her criminal conduct. Davis, 332 So. 3d at 977 (quoting Williams v.

New York, 337 U.S. 241, 246 (1949)). Also, relying on United States v. Grayson, 438

U.S. 41, 44 (1978), the opinion concluded that a judge is “entitled to consider

testimony that indicated the defendant’s unwillingness to accept the truth and to take

responsibility for his own conduct.” Davis, 332 So. 3d at 978. See also State v. Burns,

339 So. 3d 965, 967 (Fla. 2022) (“[U]nder Grayson, a judge may evaluate whether a

defendant’s in-court statements contained falsehoods and, if so, assess that fact along

with all of the other sentencing considerations.”) (quoting Grayson, 438 U.S. at 55).

Davis, 332 So. 3d at 977, cites United States v. Stanley, 739 F.3d 633 (11th Cir.

2014), to support the holding. The Eleventh Circuit held that “[d]uring sentencing, a

court ‘may not weigh the exercise of [Fifth Amendment] rights against the

defendant[,]’ [b]ut a court may take into account a defendant’s freely offered

statements indicating a lack of remorse.” Stanley, 739 F.3d at 652 (citations omitted).

The Eleventh Circuit explained that “[j]ust as a jury weighs a defendant’s testimony

once he waives his Fifth Amendment privilege at trial, a judge may consider a

defendant’s freely offered allocution regarding remorse during sentencing.” Stanley,

739 F.3d at 652.

The defendant in Stanley “chose to allocute at his sentencing hearing without

pressure from the court,” repeatedly denied any wrongdoing, and refused to accept

responsibility by describing himself as not the type of person who commits fraud.

Stanley, 739 F.3d at 652. At sentencing, when considering factors under 18 U.S.C.

§ 3553(a), the trial judge noted that the defendant insisted that he had not committed

wrongdoing and was not repentant. Stanley, 739 F.3d at 644. The Eleventh Circuit

rejected a Fifth Amendment claim based on the right against self-incrimination

because the defendant “freely chose to profess his innocence at length during his

allocution, [and] [t]he district court in no way conditioned his sentence on his

decision to exercise his constitutional rights.” Stanley, 739 F.3d at 653.

Tondreau-Leve voluntarily spoke during her allocution at sentencing, waived

her right against self-incrimination and requested leniency to care for her family. She

pleaded with the trial judge for a sentence that permitted her to remain home with

her children and her elderly father-in-law. (Doc. 8-2 at 887–90) She downplayed her

criminal conduct by describing herself as not a “bad person,” by describing the

criminal conduct as simply a “poor choice,” and by lamenting that she was “hurt by

a lot of people” and that she no longer knew “who to trust.” (Doc. 8-2 at 887,

889–90) She minimized that the jury had found her guilty of serious crimes by

insisting: “If I have to be punished for what I have been charged for, I accept that.”

(Doc. 8-2 at 888) (bolding added)

The trial judge found that she failed to consider the impact of her criminal acts

on other persons and showed a general lack of remorse. The trial judge did not

condition Tondreau-Leve’s sentence on her decision to exercise her constitutional

right against self-incrimination. Because under these circumstances, Davis, 332 So.

3d at 978, authorizes a judge to consider Tondreau-Leve’s failure to accept

responsibility at sentencing, Tondreau-Leve fails to demonstrate prejudice under

Strickland. Consequently, the post-conviction court did not unreasonably deny the

claim. Guzman, 73 F.4th at 1255-56 (citing Fretwell, 506 U.S. at 372).

Ground One is DENIED.

Accordingly, Tondreau-Leve’s petition (Doc. 1) for a writ of habeas corpus is

DENIED. The Clerk is DIRECTED to enter a judgment against Tondreau-Leve and

to CLOSE this case.

DENIAL OF CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED IN FORMA PAUPERIS

Because Tondreau-Leve neither makes a substantial showing of the denial of

a constitutional right nor demonstrates that reasonable jurists would find debatable

both the merits of the underlying claims and the procedural issues that he seeks to

raise, a certificate of appealability and leave to appeal in forma pauperis are DENIED.

28 U.S.C. § 2253(c)(2). Slack v. McDaniel, 529 U.S. 473, 478 (2000).

DONE AND ORDERED in Tampa, Florida on February 9, 2026.