The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MICHAEL JOSEPH NILIO,
Petitioner,
v. Case No. 3:19-cv-445-BJD-SJH
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
_______________________________________
ORDER
I. Status
Petitioner, Michael Joseph Nilio, is proceeding pro se on an amended
petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 5; Am. Pet.). He
challenges a 2017 state court (Duval County, Florida) judgment of conviction
for possession of a firearm by a convicted felon, aggravated assault, and false
imprisonment. See Am. Pet. at 1. Petitioner asserts five grounds for relief. Id.
at 5–12. He elaborates on each ground through a supporting memorandum
(Doc. 6; Pet. Mem.). Respondents filed a response (Doc. 20; Resp.) with exhibits
(Docs. 20-1 to 20-13; Ex(s). 1 to 13). Petitioner filed a reply (Doc. 23; Reply), in
which he requests that the Court set this case for an evidentiary hearing so he
can demonstrate his trial counsel was ineffective for inducing an involuntary
plea. See Reply at 3. Upon review, no evidentiary proceedings are warranted
in this Court.1
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. Ledford v. Warden,
Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016)
(explaining AEDPA deference), abrogation in part on other grounds recognized
by Smith v. Comm’r, 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)).
1 “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.
2
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.
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. Harrington v.
Richter, 562 U.S. 86, 100 (2011). When the state court’s adjudication on the
merits is unaccompanied by an explanation,
the federal court should “look through” the unexplained decision
to the last related state-court decision that does provide a relevant
rationale. It should then presume that the unexplained decision
adopted the same reasoning. But the State may rebut the
presumption by showing that the unexplained affirmance relied or
most likely did rely on different grounds than the lower state
court’s decision, such as alternative grounds for affirmance that
were briefed or argued to the state supreme court or obvious in the
record it reviewed.
Wilson v. Sellers, 584 U.S. 122, 125–26 (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),
3
(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. (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) (parallel
citations omitted).
“AEDPA erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.” Burt v. Titlow, 571 U.S.
12, 19 (2013). “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 v. Warden, 834 F.3d 1323, 1337–38 (11th Cir.
4
2016) (explaining in detail the parameters “for limited federal review” of state
court decisions under § 2254(d)(1) and (d)(2)). 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 § 2254(d). 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. 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”).
B. Exhaustion and Procedural Default
There are prerequisites to federal habeas review. Before bringing a
federal habeas action under § 2254, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. 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
5
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 (1995) (per curiam) (quoting Picard v. Connor,
404 U.S. 270, 275 (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, 513 U.S. at 365–66;
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (parallel citations omitted).
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, 501 U.S. at 747–48;
Wainwright v. Sykes, 433 U.S. 72, 84–85 (1977). A state court’s
6
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, 131 S. Ct. 1120,
1127–28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617–18 (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.
Martinez v. Ryan, 566 U.S. 1, 9–10 (2012) (parallel citations omitted). 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, 953 F.2d 1252, 1258 (11th Cir. 1992) (quoting [Murray
v.] Carrier, 477 U.S. [478,] 488 [(1986)]). 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).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (parallel citation omitted).
7
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. “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 (parallel citation omitted). “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. 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.
8
C. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense counsel’s
performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); 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.
The two-part Strickland test applies to challenges to the validity of guilty
pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,
58 (1985); see also Lynch v. Sec’y Fla. Dep’t of Corr., 776 F.3d 1209, 1218 (11th
Cir. 2015). When a petitioner pled guilty, to establish prejudice, he “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 (footnote omitted); see also Lynch, 776 F.3d at 1218.
9
There is no “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 1243, 1248 (11th Cir. 2000)). As stated in Strickland, “[i]f it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which . . . will often be so, that course should be followed.” 466 U.S.
at 697.
Further, “[t]he 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) (internal
quotation marks omitted). In other words, “[i]n 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 [federal courts] are
considering whether to grant federal habeas relief from a state court’s
decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
If there is “any reasonable argument that counsel satisfied Strickland’s
deferential standard,” then a federal court may not disturb a state-court
10
decision denying the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting
Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,
371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s
representation was ‘within the wide range of reasonable professional
assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th
Cir. 2016) (quoting Strickland, 466 U.S. at 689).
III. Analysis
In his amended petition and supporting memorandum, Petitioner
primarily argues that his plea was involuntarily induced because he was not
clearly advised of the terms or “direct consequences” of his guilty plea, he was
incompetent to proceed, and he was denied “conflict-free counsel.” See Am. Pet.
at 5–12; see also generally Pet. Mem. As set forth in the plea agreement, the
specific terms of Petitioner’s negotiated sentence were as follows: in exchange
for a guilty plea on three counts as charged by information, Petitioner would
be sentenced to a total of twelve years of incarceration; a three-year minimum
mandatory applied to count one; the sentence would be followed by two years
of probation; and the State Attorney would not object to running his sentences
concurrent with the sentence to be imposed in his pending Nassau County
11
violation of probation cases.2 See Ex. 4 at 2. The plea agreement was signed by
Petitioner and his attorney on May 10, 2017. Id. at 15.
At the plea hearing, Petitioner’s counsel advised the trial court that, as
per the agreement, the State Attorney agreed “to have no objection to . . . th[e]
sentence running concurrent with the sentence that’s going to be imposed . . .
in Nassau County.” Id. at 6. The trial court sentenced Petitioner in accordance
with the negotiated plea agreement and, after stating the sentence on the
record, asked if that was “everything on the sentence.” Id. at 12. Petitioner’s
counsel stated, “And also the State does not have an objection to this sentence
running concurrent with any sentence [Petitioner] receives in the . . . Nassau
County violation of probation case.” Id. The State clarified that the non-
objection was made “with the understanding that the State ha[d] made no
promises regarding the Nassau County cases.” Id. at 13.
On May 10, 2017, the trial court entered a written judgment and
sentence. See Ex. 3 at 5–8. The written sentence did not reflect whether
Petitioner’s sentence would run concurrent (versus consecutive) with any other
2 Plaintiff’s Duval County arrest violated the terms of his five-year
probationary period imposed in eight Nassau County cases. See Ex. 5 at 2, 6. The
Nassau County court revoked his probation and sentenced him to serve twenty-four
months in prison. Id. However, the violation of probation sentence was imposed after
Plaintiff pled guilty and was sentenced in the Duval County case that is the subject
of his petition. Id.
12
sentence imposed by any other court. See id. at 8. However, in the trial court’s
order of probation, under “Special Conditions,” it noted that Petitioner’s “case
[was to] run concurrent with [the] Nassau County Cases.” See Ex. 10 at 25.
The following month, on June 29, 2017, Petitioner was adjudicated guilty
in the Nassau County cases. See Ex. 5 at 14. In those proceedings, Petitioner
was represented by the same trial counsel as in his Duval County case. See id.
at 17. The Nassau County court sentenced Petitioner to a term of twenty-four
months, but, in accordance with Petitioner’s negotiated plea in that case, the
trial judge ordered that his sentence was to run consecutive with the sentence
imposed in Duval County. Id. at 12, 27.3
3 Although not a part of the record provided to this Court, Petitioner filed a
motion for postconviction relief in the Nassau County case, “arguing that it was
required that the sentence . . . run concurrent with the Duval County Case . . . .” See
State v. Nilio, No. 2010-513-CF (et al.) (Fla. 4th Cir. Ct. Sept. 28, 2018), available at
https://www.nassauclerk.com/191/Records-Search (last visited Aug. 5, 2026). The
Nassau County court denied his motion, explaining that the State Attorney’s
“agreement” with Petitioner in the Duval County case “was not binding on th[e]
court.” See id. The court further noted that, Petitioner “expressly agreed in his
Nassau County case that his sentence would run ‘consecutive to [the] Duval [County
case] . . . sentence,’ as evidenced by the [negotiated plea] plea form,” which Petitioner
signed and entered “freely, voluntarily, and knowingly.” Id. Indeed, according to his
negotiated plea form in the Nassau County case, the terms of his sentence included
that it would run “consecutive to Duval case 2017 CF 1862.” Id. (Doc. 513). Petitioner
challenged the Nassau County conviction and sentence in this Court by filing a
habeas petition under § 2254. See Case No. 3:20-cv-499-WWB-PDB. His petition was
denied and the case dismissed for his failure to exhaust his state court remedies and
on the merits. See id. (Doc. 50). Notably, in that petition, Nilio did not challenge his
Nassau County sentence running consecutive with the one imposed in Duval County,
despite his alleged “agreement” with the State and that he had the same attorney in
both cases. See id.
13
Ground I
First, Petitioner complains that his attorney was ineffective for
misinforming him of the “specific terms and direct consequences of the written
[plea] agreement and [the] promises made” by the State that his sentence
would run concurrent with the one imposed in the Nassau County case. See
Am. Pet. at 5; see also Pet. Mem. at 3–4. He explains that, in negotiating his
plea agreement with the State, he and his attorney understood that any
sentence imposed in his Duval County case would run concurrent with any as-
yet-to-be-imposed sentence by Nassau County. See Pet. Mem. at 3–4. He
suggests that when the State announced at his plea hearing that its non-
objection was not a promise concerning the imposition of his future Nassau
County sentence, his attorney should have “stopped the proceedings,” but
instead she “simply proceeded with the plea hearing.” Id. at 4–5, 7.
Ground I has two sub-points, but the gravamen of Petitioner’s argument
is that the State altered the terms of the plea agreement at the plea hearing
or did not honor the terms of the agreement, and his attorney did not object.4
4 In the first sub-point, Petitioner complains primarily about his attorney’s
shortcomings at the plea hearing, but he also blames State Attorney Melissa Nelson
for not ensuring that his sentences in Duval and Nassau Counties—both of which are
under the purview of Nelson’s office—would run concurrent, as per the plea
agreement in the Duval County case. See Pet. Mem. at 4. In the second sub-point,
Petitioner reiterates that Melissa Nelson “controls” both counties, and the State
14
As such, the Court does not construe the “sub-points” as separate sub-claims.
Petitioner raised a similar claim in the trial court through a pro se motion for
postconviction relief under Florida Rule of Criminal Procedure 3.850 (3.850
Motion). See Ex. 6 at 2, 9–10, 13, 15–19. However, he did so through two
grounds, which the trial court considered (along with his third ground) as
presenting a single claim for the ineffective assistance of trial counsel. See Ex.
9 at 2, 4. In denying the claim (presented in three separate grounds of
Petitioner’s Rule 3.850 Motion), the trial court explained as follows:
The Defendant takes exception with his sentences in another court
being run consecutive to the sentence imposed by this court. The
totality of the record reflects the Defendant was told, and
understood that the State had no objection to the concurrent
sentences and that no promises were made. Further, in fact, this
court in its probation order did include that the sentences would
be concurrent. This court, nor his counsel could determine what
the Judge in another jurisdiction would do on his sentencing[,]
thus the requirement he understand no promises were made. The
totality of the records rebuts his allegations.
Ex. 9 at 4 (record citations omitted).5 Petitioner appealed the trial court’s
denial of his Rule 3.850 Motion. See Ex. 12 at 4. The First District Court of
Attorney’s Office “did not follow through with [the] promise” to run his sentences
concurrent with one another. Id. at 8.
5 In the trial court, Petitioner also challenged the Duval County sentence
through a pro se motion to correct illegal sentence under Florida Rule of Criminal
Procedure 3.800(a). Ex. 7 at 3. The trial court denied that motion as well, explaining
that the “record reveals [Petitioner] was never made any promises” regarding his
sentence imposed in another county.” Ex. 8 at 2. Rather, the court noted, the State
“had no objection to his sentence running concurrent to a yet un-sentenced case in
another jurisdiction,” and Petitioner “was sentenced according to his plea
15
Appeal (First DCA) per curiam affirmed the trial court’s order without a
written opinion. Id. at 33.
Addressing this claim in accordance with the deferential standard for
federal court review of state court adjudications, the Court finds, upon
thorough review of the record and the applicable law, 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. See 28 U.S.C.
§ 2254(d). Accordingly, Ground I is denied.
Ground II
Petitioner contends his attorney was ineffective for “misinform[ing]
[him] . . . when the probationary portion of [his] sentences would begin and
end.” See Am. Pet. at 7. He explains that he believed, based on his consultation
with his lawyer, that his probationary period in the Duval County case would
commence after he completed his twelve-year sentence when in fact, his
probationary period will not commence until he also completes the two-year
Nassau County sentence, which the Nassau County court ordered to run
consecutive with the Duval County sentence. See Pet. Mem. at 10–11.
agreement.” Id. Petitioner filed an appeal, Ex. 13 at 4, and the First DCA per curiam
affirmed the trial court’s order without a written opinion, id. at 3.
16
Respondent argues Petitioner did not raise this claim in the state court
but observes that the claim “is really just an argument about the ramifications
or consequences of the fact that there was no agreement that the Nassau court
run its sentences concurrently with the Duval County sentence.” See Resp. at
21.
Petitioner raised this claim as ground three in his Rule 3.850 Motion, see
Ex. 6 at 19–21, but the state court treated it and his first two grounds as raising
a single claim of ineffective assistance for counsel’s failure to properly advise
him on the structure of his sentence in relation to the one imposed by the
Nassau County court, see Ex. 9 at 4. As did the state court, this Court construes
Ground II as a restatement or continuation of the ineffective assistance of
counsel claim raised in Ground I. As such, Ground II is denied for the same
reason as Ground I.
Ground III
Petitioner argues his attorney was ineffective for failing to advise him
that, in accordance with Florida law, his entry of a guilty plea would prevent
him from having contact with the victim.6 See Am. Pet. at 8; see also Pet. Mem.
at 11. He claims that he asked his attorney before he entered the plea
6 The victim was Petitioner’s fiancé, with whom he lived at the time. See Ex. 6
at 4. She paid his legal fees. Id. at 5.
17
agreement whether any law or court order would forbid him from having
contact with the victim, his fiancé. See Pet. Mem. at 12. According to Petitioner,
his attorney responded, “No, I am not aware of anything under Florida law
that would stop you from having contact with [the victim] while you are in
prison or on probation.” Id. After Petitioner started his prison sentence, he
learned that under Florida Statutes section 921.244, contact with a victim is
forbidden if a defendant enters a guilty plea.7 Id. He claims he would not have
pled guilty had he been properly advised that his plea would result in a “no
contact order with the victim.” Id. at 13.
Petitioner raised a similar claim as ground four in his Rule 3.850 Motion.
See Ex. 6 at 22–25. In denying the claim, the trial court explained as follows:
[T]he Defendant alleges that . . . the Department of
Corrections said he could have no contact with the victim. Once
again, there was never any provision in the plea with this court
prohibiting said contact. Neither the court, nor counsel have
jurisdiction over actions by Department of Corrections at the
prison level. Neither counsel nor the court took any action to limit
the Defendant’s contact with the victim.
7 This section provides, “At the time of sentencing an offender convicted of a
violation of s. 794.011, s. 800.04, s. 847.0135(5), or any offense in s. 775.084(1)(b)1.a.-
o., the court shall order that the offender be prohibited from having any contact with
the victim . . . .” Fla. Stat. § 921.244 (eff. Oct. 1, 2008). Petitioner was convicted of
violating the following sections: 790.23(1)(a) and 775.087(2)(a)(1) (possession of a
firearm by a convicted felon); 784.021(1)(a) and 741.28 (domestic aggravated assault);
and 787.02(1)(a) (false imprisonment). See Ex. 3 at 2. As such, and as the record
reflects, the trial court did not enter a no-contact order under Florida Statutes section
921.244.
18
Ex. 9 at 4 (record citations omitted). As previously noted, the First DCA per
curiam affirmed without a written opinion the trial court’s order denying
Petitioner’s Rule 3.850 Motion. See Ex. 12 at 33.
Addressing this claim in accordance with the deferential standard for
federal court review of state court adjudications, the Court finds, upon
thorough review of the record and the applicable law, 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. See 28 U.S.C.
§ 2254(d). Accordingly, Ground III is denied.
Ground IV8
Petitioner argues he was “denied his right to conflict free counsel” given
the victim, his fiancé, was paying for his legal defense, and he believed his
attorney acted on her behalf as demonstrated by his “performance” at the plea
hearing. See Am. Pet. at 10; see also Pet. Mem. at 15–16. Petitioner’s argument
is vague, but he appears to suggest his attorney encouraged him to enter a
guilty plea to “protect the victim from depositions and testifying at trial.” See
8 This claim is designated as Ground IV in the amended petition but as Ground
V in the memorandum. See Am. Pet. at 10; Pet. Mem. at 15.
19
Pet. Mem. at 16. Respondent argues this claim is unexhausted because
Petitioner did not raise it in the state court. See Resp. at 26.
Petitioner argued in ground six of his Rule 3.850 Motion that his
attorney’s cumulative errors (those raised in the other grounds of his Motion)
demonstrated counsel was not “conflict-free” given the victim was paying for
Petitioner’s defense. See Ex. 6 at 27–30. The trial court denied the claim as
follows:
In this claim the Defendant makes an argument of
cumulative errors. “Where individual claims of error alleged are
either procedurally barred or without merit, a claim of cumulative
error must fail.” Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003). Since
Defendant’s individual claims are without merit, this Ground is
denied.
The Defendant has failed to show that there is a reasonable
probability that had counsel acted as the Defendant suggests he
should have that the outcome would have been any different.
Accordingly, this Court finds the Defendant has not established
error on the part of counsel that prejudiced his case. Strickland,
446 U.S. 668.
Ex. 9 at 5. As previously noted, the First DCA per curiam affirmed without a
written opinion the trial court’s order denying Petitioner’s Rule 3.850 Motion.
See Ex. 12 at 33.
To the extent Petitioner presents the same claim to this Court that he
did in the trial court, upon thorough review of the record and the applicable
law, in accordance with a deferential standard of review, the Court finds that
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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. See 28 U.S.C. § 2254(d). To the extent the claim was not raised in
the state court, it is unexhausted and procedurally defaulted, and Petitioner
fails to show cause for or prejudice from this procedural default. Accordingly,
Ground IV is denied.
Ground V
In his final ground for relief, Petitioner argues his counsel was ineffective
for failing to demand a competency hearing. See Am. Pet. at 12; see also Pet.
Mem. at 14 (designated as Ground IV). Petitioner contends that he was
incompetent to proceed at the plea hearing, and his attorney knew he had a
mental health history because he was housed on the mental health wing at the
jail, and he told his attorney he heard voices, saw demons, took medication,
and previously had been Baker Acted. See Pet. Mem. at 14. He provides no
evidence of his incompetency. See id.
Petitioner raised this claim as ground five in his Rule 3.850 Motion. See
Ex. 6 at 25. The trial court denied the claim as follows:
[T]he Defendant claims he was incompetent and his counsel
should have done a competency evaluation. Based on the court’s
observation of the Defendant’s demeanor during the pendency of
the case and the court’s recollection of the Defendant’s behavior
21
and demeanor, there is no question the Defendant was competent
to enter his plea. Further, counsel and the court share an
obligation to insure [sic] the Defendant’s competency and as no
suggestion of incompetence was filed, it is clear, no issue of
competency arose in counsel’s mind or the court’s. Further, by
executing the blue plea form, this Court specifically found that:
I have discussed this plea agreement with
Defendant and Defendant’s attorney in open court on
this date and have asked Defendant questions,
considered Defendant’s responses, and observed
Defendant’s demeanor. I find that Defendant has the
intelligence to comprehend these constitutional rights,
the terms of this plea agreement, the contents of this
written agreement, and these proceedings. I further
find that Defendant has entered this plea freely and
voluntarily and is not under the influence of any
disability, substance, drug or condition which would
interfere with Defendant’s ability to understand and
appreciate the terms of this plea agreement and its
consequences.
Finally, the plethora of professional and articulate pleadings
filed by the Defendant since the entry of his plea demonstrate his
continued competence.
Ex. 9 at 4–5 (footnote and record citations omitted). The trial court observed in
a footnote that, at the time, it had been paying particular attention to the
demeanor of defendants during their plea colloquies given the recent proclivity
of criminal defendants to assert after-the-fact claims of incompetence in
motions for postconviction relief:
This claim has recently become a hot go to allegation made
in many Motions pursuant to 3.850. Thus this court has become
very cognizant and alert to reviewing the demeanor of all inmates
prior to accepting a plea as it is the court’s duty to insure [sic] a
22
Defendant is competent to enter a plea. Although the Court
initially asked the State to respond and the State conceded the
need for an evidentiary hearing on this issue, the plea and this
defendant are very recent and well within the recollection of the
trial court.
Id. at 4 n.1. As previously noted, the First DCA per curiam affirmed without a
written opinion the trial court’s order denying Petitioner’s Rule 3.850 Motion.
See Ex. 12 at 33.
Addressing this claim in accordance with the deferential standard for
federal court review of state court adjudications, the Court finds, upon
thorough review of the record and the applicable law, 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. See 28 U.S.C.
§ 2254(d). Ground V is denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
1. The Amended Petition (Doc. 5) is DENIED and this action is
DISMISSED WITH PREJUDICE.
2. The Clerk of Court shall enter judgment dismissing this action
with prejudice and close this case.
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3. If Petitioner appeals this Order, 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 20th day of
August, 2026.
BRIAN. DAVIS
United States District Judge
Jax-6
C:
Michael Joseph Nilio
Counsel of Record
9 The court should issue a certificate of appealability only if 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 of the record as a whole, this Court will deny a certificate of
appealability.
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