Wilson

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

PERCY WILSON, JR..,

Petitioner,

v. Case No. 3:24-cv-121-HES-SJH

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

ORDER

I. Status

Petitioner Percy Wilson, Jr., an inmate of the Florida penal system,

initiated this action on February 2, 2024, by filing, through counsel, a Petition

Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State

Custody. On March 25, 2024, Petitioner filed an Amended Petition, Doc. 3, with

exhibits, Docs. 3-1 to 3-5. Petitioner challenges a 2017 state court (Duval

County, Florida) judgment of conviction for armed robbery and possession of a

firearm by a convicted felon. See Doc. 3. Respondents filed a Response to the

Amended Petition, Doc. 6, with exhibits, Docs. 6-2 to 6-30. Petitioner filed a

Reply. Doc. 9. This action is ripe for review.!

a habeas corpus proceeding, the burden is on the petitioner to establish the need

for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d

II. Relevant Factual and Procedural History

On February 8, 2017, a jury found Petitioner guilty of armed robbery

with a firearm (count one) and possession of a firearm by a convicted felon

(count two). Doc. 6-3 at 57-59. On March 23, 2017, the circuit court sentenced

Petitioner, as to count one, to a term of life imprisonment as a Prison Releasee

Reoffender (“PRR”), with a ten-year minimum mandatory, and a concurrent

fifteen-year term of imprisonment with a three-year minimum mandatory as

to count two. Id. at 91-95. The First District Court of Appeal (“First DCA”) per

curiam affirmed Petitioner’s convictions and sentence on August 17, 2018, Doc.

6-9, and the mandate issued on September 7, 2018, Doc. 6-10 at 1.

On November 6, 2019, Petitioner, through counsel, filed a motion to

correct illegal sentence pursuant to Florida Rule of Criminal Procedure

(“Rule(s)”) 3.800(a)?. Doc. 6-11 at 4-8. The trial court summarily denied the

1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a

federal court must consider whether such a hearing could enable an applicant to

prove the petition’s factual allegations, which, if true, would entitle the applicant to

federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y,

Fla. Dep’t of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Schriro, 550 U.S, at

474, The pertinent facts of this case are fully developed in the record before the Court.

Because the Court can “adequately assess [Petitioner’s] claim[s] without further

factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an

evidentiary hearing will not be conducted.

2 In his first Rule 3.800 motion, Petitioner alleged two claims: (1) his sentence was

unconstitutionally disproportionate to similarly situated offenders; and (2) his

sentence was substantively unreasonable and the PRR statute violated the Due

motion on November 18, 2019. Id. at 9. The First DCA per curiam affirmed the

trial court’s order with a written opinion on July 27, 2020. Wilson v. State, 298

So. 3d 736 (Fla. lst DCA 2020); Doc. 6-14. The mandate issued on August 17,

2020. Doc. 6-15.

Petitioner, through counsel, filed a second Rule 3.800(a) motion on

March 1, 2020, claiming that the trial court’s finding that Petitioner qualified

as a PRR3 violated Apprendi.* Doc. 3-4. The motion was summarily denied on

April 21, 2020. Doc. 6-16 at 22-23. Petitioner appealed and filed his brief on

August 3, 2020. Doc. 6-17. The State filed an answer brief on April 13, 2023.

Doc. 6-24. The First DCA per curiam affirmed in a written opinion filed March

11, 2021. Wilson v. State, 312 So. 3d 1057 (Fla. 1st DCA 2021); see Doc. 6-20.

The mandate issued on April 1, 2021. Doc. 6-21.

On September 1, 2020, Petitioner, through counsel, filed a motion to

vacate plea, judgment, and sentence pursuant to Rule 3.850, alleging the

following two claims of ineffective assistance of counsel: (1) trial counsel was

ineffective for failing to file a motion to suppress the unnecessarily suggestive

photo spread; and (2) trial counsel was ineffective for failing to advise .

Process Clause of the Fourteenth Amendment. Petitioner does not seek review of

these claims in his habeas petition.

3 Under Florida Statute § 775.082(9), a person is a PRR if the enumerated offense of

conviction was committed within three years of being released from prison.

4 Apprendi v. New Jersey, 530 U.S. 466 (2000).

Petitioner to offer to plea to some term of years less than life. Doc. 6-22 at 5-

12. An evidentiary hearing was granted as to claim two only and was conducted

on March 25, 2022. Doc. 6-22 at 825; 971-1025. Kevin Jenkins, Petitioner’s trial

counsel, and Petitioner, were the only witnesses called during the evidentiary

hearing. Id. at 980-1015. The trial court denied both claims in a written order

entered on June 10, 2022. Doc. 3-3.

Petitioner’s appeal of the trial court’s ruling was transferred from the

First DCA to the Fifth District Court of Appeal (“Fifth DCA”). Doc. 6-22 at 967.

Petitioner filed his brief on February 8, 2023. Doc. 6-23. Petitioner’s brief only

included argument as to his second claim of ineffective assistance of counsel.

Id. at 7-11. The State filed an answer brief on April 13, 2023. Doc. 6-24.

Petitioner filed a reply brief on May 15, 2023. Doc. 6-25. The Fifth DCA per

curiam affirmed the trial court’s order without a written opinion on December

12, 2023. Doc. 6-26. Petitioner filed a motion for rehearing which was denied

on December 28, 2023. Doc. 6-27; Doc. 6-28. The mandate issued on January

29, 2024. Doc. 6-29.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. 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, 13848 (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)).

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 its 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),

(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) Gnternal 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. 68, 75 (20038)). 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

(2008); 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 (2018). “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.

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. See Cullen v. Pinholster, 563 U.S. 170,

182 (2011) (stating the language in § 2254(d)(1) “requires an examination of

‘the state-court decision at the time it was made”).

B. Exhaustion/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 that are 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).

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, 180 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, supra, at 747—

748, 111 S. Ct. 2546; Sykes, [§] 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. --, --, 1381S. Ct. 1120, 1127—

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

US. --, --, 180 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

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

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

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 1118S. 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). In order for a petitioner to establish

cause,

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 Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[7]

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

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

10

result. “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.8d 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.

However, procedural default is a non-jurisdictional affirmative defense.

It must be raised by the government in their Response, or by the State in its

Answer. Delap v. Duggar, 890 F.2d 285, 302 n. 20 (11th Cir. 1989); Oakes v.

United States, 400 F.3d 92, 96 (1st Cir. 2005). If it is not raised, the procedural

default defense is deemed waived. Id.

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); Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

ll

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.

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 1248, 1248 (11th Cir. 2000)). As stated in

Strickland, “If it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, which . . . 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) (Gnternal

quotation marks omitted). In other words, “[i]n addition to the deference to

counsel’s performance mandated by Strickland, the AEDPA adds another layer

deference — this one to a state court’s decision — when [federal courts] are

12

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

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).

V. Findings of Fact and Conclusion of Law

A Ground One

In Ground One, Petitioner claims that his trial counsel was ineffective

for failing to file a motion to suppress the unnecessarily suggestive photo

spread which identified him as the robber. Doc. 3-1 at 2-3. Petitioner first

raised this claim in his Rule 3.850 motion. Doc. 6-22 at 5-12. However,

Petitioner did not argue this claim in his initial brief filed with the Fifth DCA.

Doc. 6-23. Thus, Respondent argues that this claim is unexhausted. Doc. 6 at

7-11.

An appeal following a postconviction proceeding for which an evidentiary

hearing was held requires briefs, and failure to include issues in the appellate

13

brief is abandonment of those claims even when the evidentiary hearing is not

held on all grounds. Fla. R. App. P. 9.141(b)(3)(C); Cortes v. Gladish, 216 F.

App’x 897 (11th Cir. 2007) (recognizing that failure to address issues in an

appellate brief following an evidentiary hearing on a Rule 3.850 motion would

constitute a waiver of the unbriefed issue); Rogers v. Sec’y, Dep’t of Corr., No.

8:07-CV-1375-T-30TGW, 2010 WL 668261, at *53 (M.D. Fla. Feb. 19, 2010)

(citing Cortes and finding Rogers waived and defaulted his claim by not

briefing the claim after receiving an evidentiary hearing on his Rule 3.851

motion in state court).

Indeed, Florida courts have held that claims not argued in the initial

brief, or claims that are only supported by conclusory arguments, are deemed

waived. See Shere v. State, 742 So. 2d 215, 218 n.6 (Fla. 1999) (noting that

issues raised in appellate briefs that contain no argument are deemed

abandoned); Doorbal v. State, 983 So. 2d 464, 482-483 (Fla. 2008) (finding that

general, conclusory argument is insufficient to preserve an issue raised in a

Rule 3.851 motion); Prince v. State, 40 So. 3d 11, 13 (Fla. 4th DCA 2010) (“An

appellant who presents no argument as to why a trial court’s ruling is incorrect

on an issue has abandoned the issue-essentially conceding the denial was

correct.”).

Florida courts apply this rule even when a post-conviction evidentiary

hearing is granted on only a limited number of claims. To preserve the issue

14

for appellate review, the movant must include argument on all claims, even

summarily denied claims. See Connely v. State, 205 So. 3d 885 (Fla. 5th DCA

2016) (“The postconviction court summarily denied all of Appellant’s claims....

Appellant did not address Ground 8 in his brief; therefore, it is deemed

abandoned.”).

Because Petitioner waived appellate review of this claim, the state courts

were not afforded a full opportunity to resolve any constitutional issue, and the

claim is therefore unexhausted. See O’Sullivan, 526 U.S. at 845. Petitioner is

also outside Florida’s two-year time limitation period for ineffective assistance

of counsel claims, as his judgement and sentence became final on September

7, 2018. Doc. 6-10 at 1. Accordingly, he is procedurally barred from bringing

this claim before the state courts, thus making any future attempts to exhaust

it futile. Petitioner has not made any arguments relating to the exhaustion of

the claim in either his Amended Petition or Reply; thus, he fails to demonstrate

cause or prejudice, much less the existence of the fundamental miscarriage of

justice exception to the procedural bar. Accordingly, the claim is procedurally

defaulted and due to be dismissed.

B. Ground Two

In Ground Two, Petitioner claims he was denied effective assistance of

counsel because his trial counsel failed to advise him to offer to plea to some

term of years less than life. Doc. 3-1 at 3-5. Petitioner alleges that his trial

15

counsel, Mr. Jenkins, advised him that he did not think the State would be

interested in any offers. See id. at 4. He further alleges that “[a] reasonably

competent criminal defense attorney” would have advised him to offer the

State a term of years less than life. Id. Petitioner speculates that had he been

advised to make a plea offer, he would have offered thirty years and there was

a reasonable probability the State would have accepted it. See id. at 4-5.

Petitioner raised this claim in his motion to vacate plea, judgment, and

sentence. Doc. 3-3 at 2-12. The circuit court held an evidentiary hearing on the

claim. Only Petitioner and Mr. Jenkins testified at the evidentiary hearing.

The following is a summary of the relevant testimony to place the issue in

context. —

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

represented Petitioner. Doc. 6-22 at 981. At the time he took over Petitioner’s

case from prior counsel, a 12-year prison counteroffer had already been

conveyed to the State, which they rejected. Id. at 982-83. Mr. Jenkins asked

the State what type of counteroffer would be acceptable, and he was told 25-30

years. Id. at 983. Mr. Jenkins testified that he relayed this information to

Petitioner, and Petitioner declined to make another counteroffer to the State.

Id. Mr. Jenkins testified that Petitioner was aware he would receive a

mandatory life sentence as a PRR if convicted, and they discussed the pros and

cons of going to trial. Id. at 992.

16

When questioning Mr. Jenkins at the evidentiary hearing, Petitioner

pressed him to explain why, after the first jury was dismissed and the trial was

continued due to the victim not appearing, he did not use this opportune time

to affirmatively advise Petitioner that he needed to make a plea offer. Mr.

Jenkins responded:

...most of the clients don’t take very kindly to

you trying to force their hand to take a plea deal. They

are not very happy about that. I can advocate as much

as I want to, but then they say, “Oh you're part of the

State.”

But I can say, “This is what we can do.” I don’t

say, “This is what you need to do.” I don’t want to

influence them. If the client gets up onto the thing,

whenever they're taking a plea deal, and the judge

asks them, “Are you doing this freely and voluntarily?”

And he says, “No. Mr. Jenkins, like, told me to do this.”

That seems like that’s not very ethical and/or helpful,

and I don’t think the plea would go through.

So I’m trying to do a delicate balance whenever

I negotiate hypothetically to clients of their options

and give them the pros, the cons, what you're looking

at, scoresheet guidelines, what the offer is, what the

State is willing to do. So that way they have as many

options as they possibly can and they can’t say that ’'m

forcing them to do anything.

Id. at 996-97.

Petitioner testified that he did not remember Mr. Jenkins informing him

that the State would accept a 25—-30-year prison offer. Id. at 1006-07. He

further said it was possible that Mr. Jenkins did give him that information,

but he had forgotten because 6 years had passed. Id. at 1007. Petitioner

17

testified that Mr. Jenkins told him they would win at trial, and the State would

reject any counteroffer he gave them. Id. at 1005. Petitioner was asked if Mr.

Jenkins had “affirmatively. .. in clear, strong language” told him to make an

offer to the State, would he had done so. Petitioner responded, “Absolutely, sir.”

Id. Petitioner testified that he had three prior felony cases, and his public

defender negotiated a plea agreement in all three cases. Id. at 1003-04; 1011.

The circuit court denied relief, stating in pertinent part:

As the State argued in closing at the evidentiary

hearing, Defendant has not presented any credible

evidence that Mr. Jenkins performed below an

acceptable standard of practice or that his

representation was equivalent to serving as “a potted

palm,” as collateral counsel argued. The prosecutor

advised Mr. Jenkins that the State would be willing to

entertain a 25-30 year offer. Mr. Jenkins was 100

percent certain that he conveyed this information and

discussed it with the Defendant, while also discussing

trial strategy and pointing out the pros and cons of the

State’s case. His notes regarding trial strategy

indicated the Defendant declined to make a counter-

offer. If Mr. Jenkins had vigorously urged Defendant

to offer 25 years, it is highly likely that Defendant

would be before this Court alleging that counsel was

ineffective for coercing him to enter a plea. Therefore,

this Court finds no merit to Defendant’s claim that

counsel was ineffective for failing to advise him to offer

to plea to some term of years less than life.

Doc. 3-3 at 11. The Fifth DCA per curiam affirmed the circuit court’s order

without a written opinion. Doc. 6-26.

18

Petitioner cites to Borea v. Keane in support of his argument. 99 F.3d

492 (2nd Cir. 1996). In Borea, the defendant was offered a plea agreement of

one to three years on a case that ultimately resulted in a twenty-year-to-life

sentence. Id. at 494. It was undisputed that the evidence against the defendant

was overwhelming. Id. at 495. However, defense counsel testified that he had

not in any way or at any time discussed the advisability of accepting or

rejecting the offered plea with the defendant. Id. The Second Circuit ultimately

found that defense counsel was ineffective for never giving his client any advice

or suggestion as to how to deal with the offered plea bargain. Id. at 497-98.

However, the facts in Borea are distinguishable to those here. In the

instant case, Petitioner was never offered a plea agreement. Rather he was told

that the State was likely to accept a counteroffer of twenty-five to thirty years

if Petitioner made such an offer. Doc. 6-22 at 983. The state court found that

Mr. Jenkins relayed this information to Petitioner, and that he discussed the

pros and cons of the case with Petitioner, as well as the consequence of a

mandatory life sentence if convicted. Doc. 3-3 at 11. The record supports the

state court’s findings of fact. See 28 U.S.C. § 2254(e)(1) (“[A] determination of

a factual issue made by a State court shall be presumed to be correct”).

Petitioner has not cited any caselaw that sets forth a per se rule that

counsel must “vigorously” advise their client to extend a counteroffer to the

state. In fact, established federal law points to the contrary. See, e.g., Wofford

19

v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (“[CJounsel need only

provide his client [who is considering a plea offer] with an understanding of

the law in relation to the facts, so that the accused may make an informed and

conscious choice between accepting the prosecution’s offer and going to trial.”); □

Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) (finding no legal basis

for an argument that “counsel has an obligation to ‘strongly recommend’ the

acceptance or rejection of a plea offer”); Purdy v. United States, 208 F.3d 41,

45 (2d Cir. 2000) (“[T]he ultimate decision whether to plead guilty must be

made by the defendant. And a lawyer must take care not to coerce a client into

either accepting or rejecting a plea offer.”).

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 in light of the evidence presented in the state court proceedings.

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

C. GROUND THREE

In Ground Three, Petitioner claims the trial court’s finding that he was

a PRR as to the armed robbery violated Apprendi and his Sixth Amendment

right to a jury trial. Doc. 3-1 at 5-20. Specifically, Petitioner argues that the

Supreme Court has held that “any fact that increases the penalty for a crime

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beyond the prescribed statutory maximum must be submitted to a jury and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Alleyne

extended Apprendi’s rule to facts that increase a mandatory minimum

sentence. 570 U.S. at 111-13. According to Petitioner, the trial judge’s findings,

based on a preponderance of the evidence, that his crime of conviction is a

qualifying offense and it was committed within three years of him being

released from a correctional facility, are findings that must be made by the jury

beyond a reasonable doubt because such findings increased his penalty to a

mandatory term of life imprisonment. Doc. 3-1 at 5. Petitioner further argues

error in the fact that the previous conviction he was incarcerated for was not

contained in the information. Id. at 5-6.

Petitioner first raised this claim in his Rule 3.800(a) motion filed on

March 1, 2020. Doc. 3-4. The trial court summarily denied the motion. Doc. 6-

16 at 22-23. The First DCA per curiam affirmed the trial court’s denial of the

motion and entered the following written opinion:

Affirmed. See Williams v. State, 148 So. 3d 423

(Fla. lst DCA 2014) (rejecting the argument that

Florida’s [PRR] statute is unconstitutional based on

the holdings of Alleyne v. United States, 570 U.S. 99,

1383 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and

Apprendi v. New Jersey, 530 U.S. 466, 1208. Ct. 2348,

147 L. Ed. 2d 435 (2000)); Sims v. State, 260 So. 3d 509

(Fla. lst DCA 2018) (same).

Doc. 6-20.

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This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. To prevail,

Petitioner must show the rejection of his claim was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “[C]learly

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

States,’ refers to the Court’s holdings, not its dicta, as of the time of the state-

court decision in question.” Bush v. Sec’y, Fla. Dep’t of Corr., 888 F.3d 1188,

1195 (11th Cir. 2011). If some fair-minded jurists could agree with the state

court’s decision, the application of federal law is reasonable and habeas relief

must be denied. Hill v. Humphrey, 662 F.3d 1335, 1346 (11th Cir. 2011)

(emphasis added). Petitioner cannot meet this demanding standard.

In denying Petitioner’s claim, the First DCA relies on Williams and its

application of federal law to Florida’s PRR sentencing scheme. Alleyne made

clear that the rule of Apprendi applied to the fact finding required to impose a

higher mandatory minimum sentence, but Apprendi contains an exception

that allows a trial court at sentencing to make findings as to “the fact of a prior

conviction.” See Apprendi, 530 U.S. at 490; see also Almendarez-Torres v.

United States, 523 U.S. 224, 226-27 (1998). The Supreme Court recognizes that

exception to authorize courts themselves to determine what a prior conviction

offense was, as well the elements it encompassed under governing law. See

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Mathis v. United States, 579 U.S. 500, 511-12 (2016); Descamps v. United

States, 570 U.S. 254, 269 (2013). Moreover, a provision that simply authorizes

an enhanced sentence when an offender also has an earlier conviction is a

penalty provision, and the Constitution does not require the State to charge

that earlier conviction in the information. Almendarez-Torres, 523 U.S. at 226-

27 (1998). □

Florida state appellate courts have long recognized that a trial judge’s

PRR determination came within Apprendi’s exception for “the fact of a prior

conviction.” See Lopez v. State, 135 So. 3d 539 (Fla. 2d DCA 2014) (finding that

date of release from prison is part of a defendant’s prior record and does not

require a jury determination for purpose of proving PRR status); Calloway v.

State, 914 So. 2d 12 (Fla. 2d DCA 2005) (concluding that a prison release date

is a direct derivative of a prior conviction); Ryland v. State, 360 So. 3d 784 (Fla.

3d DCA 2023) (holding that under Apprendi, Florida’s PRR statute

constitutionally empowers a judge to make a release date determination based

on the preponderance of the evidence). Moreover, federal courts on habeas

review have agreed that such an interpretation was not contrary to, or an

unreasonable application of, clearly established federal law. See, e.g.,

Chapman v. Sec’y, Fla. Dep’t of Corr., No. 21-10137-F, 2022 WL 20303055, at

*1 (11th Cir. June 3, 2022) (“[T]he state court’s determinations, that Apprendi

did not require a jury to find [petitioner’s] release date beyond a reasonable

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doubt and that the state was not required to allege his PRR status and its

intent to seek an enhanced sentence in the information, were not

unreasonable, given that Florida courts have rejected similar challenges to the

PRR Act.”); Cato v. Sec'y, Fla. Dep't of Corr., No. 3:17-CV-20-J-32MCR, 2019

WL 6877172, at *4-5 (MD. Fla. Dec. 17, 2019) (“The Court again recognizes

that the United States Supreme Court held that prior convictions are not an

“element” that must be found by a jury”); McGriff v. Sec'y, Dep't of Corr., No.

3:15-CV-1281-J-39JBT, 2018 WL 354956, at *6 (M.D. Fla. Jan. 10, 2018)

(“[T]he trial court did not violate Petitioner’s constitutional rights to a trial by

jury by making a PRR designation”).

In his Reply, Petitioner argues that the Supreme Court’s recent decision

in Erlinger v. United States, 602 U.S. 821 (2024), has extended the reasoning

of Apprendi to require his PRR sentence be vacated as unconstitutional. Doc.

9 at 7. Erlinger requires a jury to make the finding of whether a defendant’s

three prior felony convictions were committed on different occasions as

required to trigger a mandatory minimum sentence under the Armed Career

Criminal Act. 602 U.S. at 834-35. In Erlinger, the Court held that a judge may

determine a defendant’s prior offenses, and dates of which they occurred, but

- they could not decide whether the defendant’s “past offenses differed enough

in time, location, character, and purpose to have transpired on different

occasions.” Id. at 840. Erlinger calls into question the continued viability of

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Florida decisions upholding the PRR procedure considering that a prison

release date is not a fact of a prior conviction or even the date of a prior

conviction. However, even if Erlinger explicitly found that Florida’s PRR

sentencing scheme required a jury finding, Erlinger was decided in 2024, years

after Petitioner’s judgment and sentence became final in 2018. Therefore,

Erlinger was not clearly established federal law at the time the First DGA

denied Petitioner’s claim. Accordingly, the Court finds that the state court’s

adjudication of this claim was neither contrary to, nor an unreasonable

application of, clearly established federal law. As such, Ground Three is

denied. .

VI. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Petitioner seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

Court should issue a certificate of appealability only if the petitioner makes “a

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

22538(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

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further,” Miller-El, 537 U.S. at 335-86 (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)).

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

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

the district court’s assessment of the constitutional claims debatable or wrong.

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

claim on procedural grounds, the petitioner must show that “jurists of reason

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

of a constitutional right and that jurists of reason would find it debatable

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

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

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

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

DISMISSED WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Amended

Petition and dismissing this case with prejudice.

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

certificate of appealability. Because the Court has determined that a certificate

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

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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.

4, The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this /, ta day of

September, 2026.

VEY E.SCHLESINGER

nited States District Judge

CC-3 9/8

C: Counsel of record

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