Petition for Writ of Certiorari — Guerra v. McNeil (No. 08-425)

(o | WY ore Cot, US.

O. 08-425 SEP 2 6 2008

OFFICE OF THE CLERK

In The

Supreme Court of the United States

MANUEL GUERRA,

Petitioner,

Vv.

SECRETARY FOR THE DEPARTMENT OF

CORRECTIONS, ATTORNEY GENERAL OF

FLORIDA, Bill McCollum,

Respondents.

On Petition for a Writ of Certiorari

to The United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

PAUL MORRIS

Counsel of Record

9130 S. Dadeland Blvd.

Suite 1528

Miami, FL 33156

(305) 670-1441

Counsel for Petitioner

QUESTION PRESENTED

WHETHER THE ELEVENTH CIRCUIT'S

STANDARDS AND BURDENS OF PROOF

APPLICABLE TO A CLAIM OF INEFFECTIVE

ASSISTANCE OF TRIAL COUNSEL IN THE PLEA

PROCESS, AS WELL AS ITS RULE THAT THE

RIGHT TO COMPETENT PLEA BARGAIN ADVICE

IS AT BEST A PRIVILEGE, ARE IN CONFLICT

WITH THOSE OF THIS COURT AND OTHER

CIRCUITS AND WERE IMPROPERLY APPLIED IN

DENYING THE PETITIONER'S CLAIM WHERE HIS

COUNSEL MISTAKENLY ADVISED HIM THAT HIS

SENTENCING EXPOSURE WAS A TWENTY-YEAR

PRISON TERM IF HE REJECTED THE

PROSECUTION'S PLEA OFFER AND THE

PETITIONER WAS CONVICTED AFTER TRIALAND

SENTENCED TO IMPRISONMENT FOR THIRTY-

FIVE YEARS AFTER .DECLINING THE PLEA

OFFER IN RELIANCE UPON COUNSEL'S

MISADVICE.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

ARGUMENT

CONCLUSION

APPENDIX (separately filed):

Opinion of the 11th Circuit

Order of 11th Circuit Denying

Rehearing

Order of District Court Denying

Habeas Corpus Petition

Excerpts of State Postconviction

Hearing

Page

App. 1-6

App. 7°8

App. 8-18

App. 19°39

TABLE OF AUTHORITIES

Cases Page

Boria v. Keane,

99 F.3d 492 (2d Cir.1996) .................-. 17

Bradshaw v. Stumpf,

545 U.S. 175, 125 S.Ct. 2398,

ES | 14

Griffin v. United States,

330 F.3d 733 (6th Cir.2003) .................. 16

Guerra v. State,

924 So. 2d 944 (Fla.3d DCA 2006) .............. )

Guerra v. United States,

No. 07-114138 (11th Cir. March 28, 2008) ......... 5

Hill v. Lockhart,

474 U.S. 52, 106 S.Ct. 366,

RS 14, 15, 19, 25

Julan v. Bartley,

495 F.3d 487 (7th Cir.2007) ............... 18°21

Magana v. Hofbrauer,

NS) 15

Mask v. McGinnis,

Le 16

Moran v. Burbine,

475 US. 412, 106 S.Ct. 1135,

i cw acc uweucewa 14

Riggs v. Fairman,

399 F.3d 1179 (9th Cir.2005) ................. 16

Roe v. Flores-Ortega,

528 U.S. 470, 120 S.Ct. 1029,

OR rr 15

State v. Arthur,

390 So. 2d 717 (Fla.1980) ...............-4.-.. 22

Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052,

ee passim

Toro v. Fairman,

940 F.3d 1065 (7th Cir.199D) ...............-.. 16

United States v. Day,

BR Re 16, 17

United States v. Gordon,

gE 15

United States v. Morris,

470 F.3d 596 (6th Cir.2006) .................. 19

Varela v. State,

711 So. 2d 1343 (Fla.3d DCA 1998) ........ 9, 23-5

Wofford v. Wainwright,

748 F.2d 1505 (11th Cir.1984) .......... 10, 11, 13

Wright v. Van Patten,

_ an. en Fae,

SOD LE DE GER UND www ccc cee 14

Statutes

28 U.S.C. § 1254(1)

ee er aa 5, 23

OPINION BELOW

A copy of the unpublished decision of the United

States Court of Appeals for the Eleventh Circuit,

Guerra v. United States, No. 07-11413 (11th Cir.

March 28, 2008) affirming the denial of the petitioner's

28 U.S.C. § 2254 habeas corpus petition by the United

States District Court for the Southern District of

Florida, is contained in the Appendix. (App. 1-6).

JURISDICTION

The opinion of the United States Court of Appeals

for the Eleventh Circuit was filed on March 28, 2008.

(App. 1-6). On May 12, 2008, the court of appeals

entered an order denying the petitioner’s timely filed

petition for rehearing. (App. 7-8). A timely filed

application for extension of time for filing this petition

for writ of certiorari was granted to October 9, 2008.

This Court's jurisdiction is invoked under 28 U.S.C. §

1254(1).

STATEMENT OF THE CASE

A.

Petitioner, a state prisoner in Florida, was found

guilty of second degree murder following a jury trial.

hy

(App. 2). Petitioner filed in the state trial court a

motion seeking postconviction relief arguing that he

was denied his Sixth Amendment right to effective

assistance of counsel in the plea process in violation of

the standards promulgated in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Petitioner argued that the two pronged test

of Strickland for ineffectiveness (deficient performance

and prejudice) was met because (1) his trial attorney

misinformed him that if he rejected the prosecution's

plea offer of a 10-year prison term and was convicted

after trial, he was facing a sentence of 20 years; and (2)

relying upon counsel’s misrepresentation, petitioner

continued with the trial, was convicted, but was

sentenced to more than 34 years in prison. Jd.

The state trial judge conducted an evidentiary

hearing upon petitioner’s motion. (App. 19-39).

Petitioner presented three witnesses: his lead trial

attorney, Eric Feldman: co-counsel, Diane Ward; and

himself. The State of Florida presented no witnesses

and offered no evidence in rebuttal to petitioner's case.

Mr. Feldman admitted his misadvice to the petitioner

and corroborated the petitioner's testimony in all

material respects. No contradictory testimony was

offered by co-counsel.

Mr. Feldman explained that prior to trial, petitioner

was amenable to a plea bargain. Indeed, petitioner

directed him to inquire of the prosecution whether, if

he pled guilty, a plea agreement could specify where

the sentence would be served. However, no “firm

offers” were made by the State (until the plea offer at

issue was made during the trial) and therefore no

agreement between the State and petitioner was

reached. (App. 28-9, 31).

At trial, after the prosecution rested but before the

defense commenced its case, the prosecutor approached

6-

Mr. Feldman with a firm plea offer whereby petitioner

would receive a prison sentence of 10 years in

exchange for a plea of guilty to a reduced charge of

manslaughter. (App. 22-4). The trial judge was

informed of and approved the plea offer and ordered

petitioner to reach a decision quickly as to whether the

trial would continue. However, the judge did not

participate in the plea process and was not in the

courtroom when the plea offer discussion took place off

the record between petitioner and his counsel. Neither

the trial judge, prosecutor, or defense counsel ever

advised petitioner of his sentencing exposure under the

applicable state sentencing guidelines. (App.24-5).

Mr. Feldman testified that when he informed the

petitioner of the plea offer, the petitioner "was torn,

didn’t know what to do." (App. 24). Petitioner asked

Mr. Feldman: “[W]hat am I looking at if I continue

with the trial?” (App. 24-5). Mr. Feldman testified: “I

remember telling him twenty.” (App.25). Mr. Feldman

admitted at the postconviction hearing that he gave

that answer of "twenty" even though he had sot

determined petitioner’s sentencing exposure upon

conviction for second degree murder. Nor did Mr.

Feldman ever discuss with petitioner his sentencing

guidelines exposure upon conviction. Mr. Feldman

testified that he did not review a sentencing guidelines

scoresheet with petitioner until after the trial, when a

scoresheet prepared by the prosecutor was disclosed to

the defense. (App. 25-6). Mr. Feldman opined that his

mistaken answer influenced petitioner’s decision to

reject the 10-year sentence and continue with the trial.

(App. 29-30).

On the day of sentencing, Mr. Feldman was

surprised to see that the sentencing guidelines

scoresheet prepared by the prosecutor calculated a

sentence of 34 years. Mr. Feldman described

x 3

petitioner’s reaction to that sentence as one of “shock.”

(App. 26-7). He recalled petitioner stating that he

understood from Mr. Feldman that his sentencing

exposure was no more than 20 years. (App. 27). Mr.

Feldman testified that after the sentencing, petitioner

was “obviously upset” and repeated that he had no idea

that such a long sentence could be imposed upon him.

(App. 27). Mr. Feldman specifically recalled petitioner

stating to him that he would have accepted the 10-year

plea offer had he known his sentencing exposure was

more than 34 years. (App. 30). Mr. Feldman stated

that he was fired by petitioner after the sentencing.

(App. 27).

The testimony of co-counsel Ward was

corroborative. Ms. Ward never prepared a sentencing

scoresheet calculation in petitioner’s case for two

reasons. First, she did not know how. Second, she

deemed Mr. Feldman responsible for that aspect of the

petitioner's representation. Nor did she ever explain to

petitioner his sentencing exposure. (App. 20-1). She

stated that petitioner’s reaction to the prosecutor's

scoresheet calculation was one of a “high level of

distress and surprise.” (App. 22).

Petitioner’s testimony was consistent with that of

both trial counsel. Petitioner stated that upon being

advised of the 10-year plea offer, he asked Mr.

Feldman what sentence he was facing if found guilty

after trial. Mr. Feldman answered that petitioner was

facing 20 years. (App. 32). Petitioner understood from

counsel’s answer that the worst case scenario upon

conviction after trial was a 20-year sentence. (App. 33).

Petitioner did not know he was facing a 34-year

sentence until the day of the sentencing. (App. 35-6).

He proceeded with trial having relied upon Mr.

Feldman’s representation that the maximum sentence

was 20 years. Petitioner testified that he would have

-8-

accepted the 10-year sentence had he known he was

facing 34 years in prison regardless of his claim at trial

of self-defense. (App. 33-4, 37).

Petitioner also confirmed Mr. Feldman’s testimony

that there were no firm plea offers prior to trial.

Petitioner's understanding was that various plea

proposals discussed prior to trial were never “on the

table.” (App. 33-4, 37-8). Petitioner confirmed that

although plea agreements and counter-agreements

were discussed, no agreement could be reached. (App.

33-4).

The state postconviction judge denied relief solely

upon the following ground:

With respect to Mr. Guerra’s claim that the plea

offer was improperly communicated to him

because he was told that the most that he was

facing was twenty years, I’m rejecting that

claim. I find Mr. Guerra totally incredible. Once

again, I find his testimony to be incredible.

That motion is denied in its entirety.

(App. 39). The judge did not address the unrebutted

testimony of the petitioner's trial attorneys.

Petitioner appealed his Sixth Amendment claim to

the District Court of Appeal of Florida, Third District

which affirmed without opinion, citing Varela v. State,

711 So. 2d 1343 (Fla.3d DCA 1998). See Guerra v.

State, 924 So. 2d 944 (Fla.3d DCA 2006).

Petitioner filed a petition for writ of habeas corpus

with the district court based upon his ineffective

assistance of counsel claim. The district judge

summarily denied the petition in a written order. (App.

8-18). The district judge found that petitioner failed to

show prejudice under the second or prejudice

Strickland prong, thereby rendering it unnecessary to

-Q-

decide whether Mr. Feldman rendered deficient

performance in violation of the first prong. (App. 16).

The district judge interpreted the state postconviction

judge’s finding that petitioner was “totally incredible”

to mean that petitioner was not credible when he

testified that he would have accepted the 10-year plea

offer had he known he was facing 34 years rather than

only 20 years as misrepresented by his counsel. (App.

17). The district judge ruled that this credibility

finding was not rebutted by clear and convincing

evidence and therefore resulted in a failure of proof

that petitioner suffered any prejudice from Mr.

Feldman’s misadvice. Jd.

The petitioner appealed to the Eleventh Circuit.

Reiterating its rule that "[tlhe right to competent plea

bargain advice is at best a privilege that confers no

benefit’ because a defendant ‘may make a wise

decision’ without assistance of counsel or a ‘bad one

despite superior advice from his lawyer," (App. 5-6)

(quoting Wofford v. Wainwright, 748 F.2d 1505, 1508

(11th Cir.1984)), the Eleventh Circuit "proceed|ed]

directly to the second step of the Strickland analysis"

and affirmed on the following basis:

There is no indication in the record,

and certainly no clear and convincing

evidence, that [petitioner] would not

have accepted the 10-year offer absent

trial counsel's advice concerning a 20-

year sentence. Trial counsel did not

testify that [petitioner] would have

accepted the 10-year offer at any point

in the proceedings. Rather, counsel

described that [petitioner] had limited

doubts regarding his defense and had

rejected prior plea offers. On this

-10-

record, [petitioner] has not shown that

he would have pled guilty had counsel

told him that he could receive at 34-

year, as opposed to a 20-year, term.

(App. 6).

REASONS FOR GRANTING THE WRIT

The Eleventh Circuit appears to be the only

jurisdiction that holds, as it did in petitioner's case,

that "'[t]he right to competent plea bargain advice is at

best a privilege that confers no benefit’ because a

defendant 'may make a wise decision’ without

assistance of counsel or a ‘bad one despite superior

advice from his lawyer." (App. 5-6) (quoting Wofford,

748 F.2d at 1508)). The rule of the Eleventh Circuit is

at odds with this Court's standards for assessing

effective assistance of counsel in the plea process as

well as the standards of the other circuits. Certiorari is

requested to address and resolve this conflict.

There is also a conflict between the Eleventh Circuit

and other circuits concerning a petitioner's burden

under Strickland for obtaining relief based upon trial

counsel's misadvice in the plea process. Here,

petitioner's trial counsel admitted that he mistakenly

informed the petitioner that he was facing a 20-year

sentence if he rejected the State's 10-year plea offer

and was found guilty by the jury. In reliance upon that

misadvice, the petitioner continued with trial, was

convicted, but received a 34-year sentence. Several

circuits hold that although the prejudice prong of

Strickland may not be satisfied based solely upon a

petitioner's claim that he would have accepted a plea

offer but for counsel's misadvice, the petitioner's

burden of showing prejudice can be satisfied by

st,

"objective evidence" such as testimony from trial

counsel admitting the mistaken advice, or a

substantial disparity between trial counsel's

misrepresentation and the sentence actually imposed.

Here, although the petitioner presented both types of

objective evidence, the Eleventh Circuit nevertheless

ruled that the petitioner's case lacked sufficient proof

of prejudice. Certiorari is also requested to resolve this

conflict among the circuits.

ARGUMENT

A. Petitioner's Sixth Amendment Claim

The petitioner's claim is a denial of the Sixth

Amendment right to effective assistance of counsel that

took place in the plea process when, during trial and in

reliance upon his counsel's misadvice that he was only

facing a 20-year sentence if convicted after trial, he

rejected a plea offer of a 10-year term. The petitioner

was found guilty and received a sentence of

imprisonment for 34 years. At a postconviction

hearing, petitioner's counsel admitted that he did not

know the petitioner's sentencing exposure upon

conviction and that his advice to the petitioner was

wrong. Petitioner's counsel also testified that when he

communicated the plea offer, the petitioner was "torn"

between accepting the 10-year sentence and continuing

with trial, thereby showing that the petitioner was

amenable to accepting the plea offer. Counsel further

testified that the petitioner relied upon the affirmative

misadvice in deciding to reject the plea offer and

continue with trial. Consistent with counsel's

testimony, the petitioner testified that he would have

-12-

accepted the 10-year offer had he known he was

actually facing imprisonment of 34 years upon

conviction but that he relied upon counsel's misadvice

in rejecting the offer. The State offered no evidence to

dispute the testimony of counsel or the petitioner.

B. The Law ofthe Eleventh Circuit Regarding Effective

Assistance of Counsel in the Plea Process

On appeal from the denial of his federal habeas

corpus petition, the Eleventh Circuit affirmed. Unique

to the Eleventh Circuit is its rule that "[t]he right to

competent plea bargain advice is at best a privilege

that confers no benefit’ because a defendant 'may make

a wise decision' without assistance of counsel or a ‘bad

one despite superior advice from his lawyer." Wofford,

748 F.2d at 1508. In rejecting the petitioner's Sixth

Amendment claim, the Eleventh Circuit reiterated this

rule and concluded that the petitioner failed to satisfy

the prejudice prong of Stricklandby not having shown

that he would have pled guilty had he known he was

facing 34 years in prison as opposed to a 20-year term.

The ruling of the Eleventh Circuit is at odds with

decisions of this Court as well as decisions of other

circuit courts of appeals regarding the standards for

determining ineffective assistance of counsel claims

based upon misadvice by counsel in the plea process.

C. The Law of this Court and Other Circuits

Regarding Effective Assistance of Counsel in the Plea

Process

Generally, in order to establish ineffective

assistance of counsel in violation of the Sixth

Amendment, the defendant must satisfy the two

elements of Strickland. First, the defendant must show

-13-

that “counsel’s representation fell below an objective

standard of reasonableness.” Jd. at 687-88, 104S.Ct. at

2064. Second, the defendant must show that “there is

a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Jd. at 694, 104 S.Ct. at

2068. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Jd.

There can be no doubt that there is a right to

effective assistance of counsel in the plea process. After

all, a defendant’s decision whether to plead guilty or

proceed to trial is a critical stage in a criminal

proceeding for which he is entitled to counsel. See, e.g.,

Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135,

89 L.Ed.2d 410 (1986) (“Sixth Amendment right to

counsel ... attachles) ... after the initiation of formal

charges”). Accordingly, in Hil] v. Lockhart, 474 U.S. 52,

58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), this Court

held that "the two-part Strickland v. Washington test

applies to challenges to guilty pleas based on

ineffective assistance of counsel." Accord, Wright v.

Van Patten, ___U.S.___, ___, 128 S.Ct. 748, 746, 169

L.Ed.2d 583 (2008). It necessarily follows that an

ineffective assistance of counsel claim can be based

upon the misadvice of counsel during the plea process.

See Bradshaw v. Stumpf, 545 U.S. 175, 186, 125 S.Ct.

2398, 2408, 162 L.Ed.2d 143 (2005) (noting that the

validity of a plea made upon the constitutionally

defective advice of counsel is subject to attack).

In evaluating a claim of ineffective assistance of

counsel in the plea process, “the first half of the

Strickland test is nothing more than a restatement of

the standard of attorney competence....” Hi//, 474 U.S.

at 59, 106 S.Ct. at 370. However, in order to satisfy the

“prejudice” requirement, the defendant need only show

that “there is a reasonable probability that, but for

-14-

counsel's errors, he would not have pleaded guilty and

would have insisted on going to trial.” Jd. at 59, 106

S.Ct. at 370. See also Roe v. Flores-Ortega, 528 U.S.

470, 485, 120 S.Ct. 1029, 1039, 145 L.Ed.2d 985 (2000)

(reiterating prejudice test of Hi// and applying similar

test for prejudice to ineffectiveness of counsel claim for

failure to file notice of appeal). This framework is also

held to apply to claims that, but for counsel's

misadvice, a defendant would have accepted a plea

bargain and not have gone to trial. See e.g., Magana v.

Hofbrauer, 263 F.34 542, 547 (6th Cir.2001) (requiring

that petitioner show deficient performance and that,

but for counsel's advice, there was a reasonable

probability he would have pled guilty); United States

v. Gordon, 156 F.3d 376, 379-80 (2d Cir.1989)

(recognizing ineffective assistance of counsel claim

where counsel's misadvice regarding potential

sentencing exposure caused defendant to reject plea

offer).

D. The Conflict Warranting Certiorari Review

Contrary to the above-cited authorities, the

Eleventh Circuit adheres to the view that the right to

competent plea bargain advice is nothing more than a

"privilege that confers no benefit because a defendant

may make a wise decision without assistance of

counsel or a bad one despite superior advice from his

lawyer." The Eleventh Circuit is apparently alone in

this view -- and this view is wrong because the right to

effective assistance of counsel in the plea process is a

Sixth Amendment guarantee. Additionally, the

Eleventh Circuit unrealistically adheres to the

reasoning that a defendant in the plea process is apt to

"make a wise decision without assistance of counsel."

As this and many other cases demonstrate, the ever-

-} 5-

increasing compiexities of sentencing guidelines,

scoresheets, and statutory schemes are resulting in

numerous instances of counsel imparting to their

clients incorrect assessments of sentencing exposure.

Certiorari review of this important issue is respectfully

requested.

E. The Circuit Conflict on "Objective Evidence"

Ordinarily, a petitioner's testimony, without more,

that he would have accepted a plea offer but for

counsel's misadvice, is insufficient to prove prejudice,

for the obvious reason that any petitioner is likely to

offer such testimony, whether true or not, in an

attempt to reinstate a rejected plea bargain. See e.g.,

Toro v. Fairman, 940 F.2d 1065, 1066 (7th Cir1991)

(defendant's statement that he would "have had to be

insane not to accept the plea agreement" was self-

serving and alone, insufficient to establish a

reasonable probability that he would have accept the

plea). Accordingly, several circuits hold that the

petitioner's burden can be met through an additional

showing of “objective evidence." For example, where

the record shows a substantial disparity between a

defendant’s actual maximum sentencing exposure

under applicable sentencing guidelines and the

sentencing exposure incorrectly represented by defense

counsel, the disparity is deemed sufficiently “objective”

to establish a reasonable probability that the

defendant would have accepted the plea offer. See e.g.,

Riggs v. Fairman, 399 F.8d 1179, 1183-84 (9th

Cir.2005); Griffin v. United States, 330 F.3d 733, 737

(6th Cir.2003); Mask v. McGinnis, 233 F.3d 132, 142

(2d Cir.2000); United States v. Day, 969 F.2d 39 (3d

Cir.1992).

Here, the petitioner's testiriiony was so corroborated

-16-

by the substantial disparities between the sentence

under the plea offer (10 years), counsel’s incorrect

advice (that the petitioner was facing 20 years if

convicted after trial) and the petitioner’s actual

sentence (34 years). However, the Eleventh Circuit

declined to follow those circuits where such a disparity

constitutes “objective evidence" that satisfies the

prejudice component of Strickland.

Several courts of appeals hold that objective

evidence is also supplied by the testimony of a

defendant’s trial counsel that corroborates the critical

aspects of his client’s testimony. In Boria v. Keane, 99

F.3d 492 (2d Cir.1996), the defendant substantiated

his allegation of prejudicial ineffective assistance by

the testimony of his counsel who “made clear” that he

never discussed with his client the advisability of

accepting or rejecting the plea offer. Boria, 99 F.3d at

495. Boria’s trial counsel testified that he “never gave

his client any advice or suggestion” as to how to deal

with the plea bargain. Jd. at 497-98. Similarly in Day,

supra, the Third Circuit remanded for an evidentiary

hearing noting that defense counsel’s corroboration

“might qualify as sufficient confirming evidence.” 969

F.2d at 45.

In this case, the testimony of petitioner's counsel

corroborated his client’s testimony. Counsel

acknowledged that he misadvised the petitioner that

he was facing only 20 years, rather than 34, if

convicted after trial. However, in conflict with those

circuits in which such testimony satisfies the prejudice

prong of Strickland, the Eleventh Circuit adhered to a

different standard, finding that the petitioner did not

meet the prejudice prong because his trial counsel

failed to testify that the petitioner "would have

accepted the 10-year offer at any point in the

proceedings." (App. 6). Arguably, the Eleventh Circuit

-17-

is calling for testimony from counsel that constitutes

inadmissible speculation as to what his client might

have done. But even if this were the proper standard,

it was satisfied when counsel testified that the

petitioner was amendable to pretrial plea bargaining

that never resulted in a firm offer and that when the

first firm plea offer was made during trial, the

petitioner did not respond with outright rejection but

instead was "torn" between the 10-year offer and what

he believed to be his exposure of 20 years. Such

testimony supported the petitioner's testimony that he

would not have been so "torn" and would have accepted

the offer if he had been accurately advised that the risk

was 34 years (particularly considering the petitioner

was born in 1949 and was therefore 51 years of age at

the time of the plea offer).

The Eleventh Circuit's analysis is also in conflict

with the standards applied by the Seventh Circuit in a

case similar to the petitioner's, Julian v. Bartley, 495

F.3d 487 (7th Cir.2007). In Julian, the defendant was

improperly informed by his trial counsel that the

maximum sentence he could receive would be 30,

rather than 60 years in prison. The Seventh Circuit

found that habeas corpus relief was appropriate and

that the petitioner satisfied the prejudice prong of

Stricklandwhere he relied upon counsel's misadvice in

rejecting the plea offer of 23 years. The court reasoned

that Julian was faced with the choice of accepting the

plea offer of 23 years, or gamble by going to trial where

he might be exonerated or face up to 30 years in prison.

Julian believed he was only risking seven

additional years for a chance at acquittal

(the difference between the twenty-three

the prosecutor offered to recommend and

the third to which he could be sentenced

-18-

after trial). In actuality, Julian was

risking thirty-seven years for the chance

at acquittal (the difference between the

twenty-three the prosecutor offered and

the sixty years to which he could be

sentenced after trial). To gamble with

seven years for the slim chance of

acquittal might be a reasonable calculus

for some. It is hard to imagine, however,

that any reasonable defendant would be

willing to risk thirty-seven years for the

remote chance of acquittal. After all,

sixty years is a life sentence for any

defendant, particularly one who, like

Julian, was thirty-eight at the time of

sentencing.

Julian, 495 F.3d at 499. Accordingly, the Seventh

Circuit found that Julian presented more than his own

self-serving allegation that he would have taken the

plea but for counsel's misadvice. See also United States

v. Morris, 470 F.3d 596 (6th Cir.2006) (counsel

provided ineffective representation in violation of Hi//

and Strickland when she told defendant that federal

prosecution would result in sentence between 60 and

68 months when actual range was 101 or 111). The

identical reasoning and standards should have applied

to the petitioner's case.

For the foregoing reasons, certiorari review is

warranted to review the conflicting decision of the

Eleventh Circuit.

-19-

F. The Additional Conflict Generated by the Eleventh

Circuit's View of the Deficiency Component of

Strickland in the Plea Process

Although the Eleventh Circuit decided the

petitioner's case after stating that it would "proceed

directly to the second step of the Strickland analysis,"

the court briefly addressed the first or deficient

performance prong of Strickland in a footnote. The

petitioner addresses that footnote for two reasons.

First, it might be viewed as an alternative holding; and

second, the analysis in the footnote generates conflict

on important matters also worthy of resolution by this

Court. In the footnote, the Eleventh Circuit found that

the petitioner did not meet the first prong of Strickland

for two reasons, the first being the following:

We pause to note that on this record,

Guerra's habeas petition fails at the first

stop of Strickland since, contrary to

Guerra's claim in this appeal, there is no

indication that trial counsel affirmatively

misinformed him that he faced a 20-year

maximum sentence. Rather, counsel

advised Guerra that he had a "winnable

case" and was "looking at twenty years."

(App. 6, n.1).

Whether counsel advised the petitioner he "faced a

20-year maximum sentence" or that he "was looking at

twenty years" makes no difference. Even if counsel was

offering an opinion, that does not change the analysis.

As the Seventh Circuit stated in Julian:

(Tlhe [state] appellate court's conclusion

that because Itrial counsel] provided an

-20-

opinion rather than a guarantee, he could

not have provided ineffective assistance of

counsel is a non-sequitur. *** What

[counse]] told [petitioner] about a thirty-

year sentence was clearly wrong and

therefore objectively unreasonable. In fact

one would be hard pressed to find a lawyer

who guaranteed a client anything.

Guarantees in the law are hard to come

by, particularly in the topsy-turvy world of

sentencing. Were we to constrain claims

for ineffective assistance of counsel only to

those who received guarantees from their

lawyers, we surely would eviscerate the

law regarding the right to effective

assistance of counsel.

Julian, 495 F.3d at 495-96.

Here, petitioner was clearly asking, as any

reasonable accused in his position would have, for legal

advice that any reasonably competent counsel could

provide, namely, what would happen if he rejected the

plea offer and was found guilty after trial. Counsel's

response was clearly and grossly incorrect. The

Eleventh Circuit's treatment of counsel's misadvice

squarely conflicts with the Strickland deficient

performance standards in general and with Ju/ian in

particular.

The Eleventh Circuit's other reason for "pausing to

note" that petitioner failed to meet the first step in

Strickland was the following:

Moreover, Guerra was previously advised

that he faced a potential maximum

sentence of life imprisonment, if convicted

of second-degree murder.

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(App. 6, n.1). The Eleventh Circuit was apparently

referring to the petitioner's pretrial bond hearing and

what the State of Florida contended took place there

(although no record of the hearing was offered by the

State). The State contended that the bond judge

advised the petitioner of the statutory maximum

penalty for the offense charged. Even assuming that

the State's contention is accurate, the Eleventh

Circuit's conclusion does not follow. A brief discussion

of the law of Florida regarding pretrial bond hearings

shows why.

In State v. Arthur, 390 So. 2d 717 (Fla.1980), the

Supreme Court of Florida held that an accused charged

with a capital or life imprisonment offense is entitled

to a bond hearing (also known in Florida as an “Arthur

hearing”) and the setting of bond unless the proof is

evident or the presumption of guilt great. The

petitioner was charged with a life imprisonment

offense and was therefore afforded a pretrial bond

hearing wherein he was likely so advised. However,

the petitioner was never facing a sentence of life

imprisonment if convicted after trial. Rather, as

petitioner's trial counsel correctly testified, the

petitioner's sentencing exposure if convicted after trial

would be determined not by the statutory maximum,

but by the applicable state sentencing guidelines. Mr.

Feldman correctly understood that petitioner was not

facing either the death penalty or life imprisonment if

found guilty by the jury. Rather, petitioner was facing

a guidelines sentence of a term of years in prison.

Thus, the Eleventh Circuit was clearly mistaken in

equating petitioner's knowledge that he was afforded

a pretrial bond hearing because his charged offense

was statutorily classified as a life felony with a failure

to show deficient performance of trial counsel when he

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advised the petitioner that he was facing 20 years in

prison if convicted after trial.

G. The State Appellate Court's Decision

The state appellate court rejected the

petitioner's constitutional claim based solely upon that

court’s prior decision in Varela. Although the Eleventh

Circuit did not review the decision of the state

appellate court, an examination of Varela shows that

the state court’s resolution of the ineffective assistance

of counsel claim “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 ...” and/or

“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.” See

28 U.S.C. § 2254(d)(1), (2).

In Varela, prior to the start of jury selection,

defendant Varela was offered a plea to a term of seven

years. A plea discussion took place in open court and

the trial judge participated. The judge informed Varela

that the maximum sentence which could be imposed if

he were convicted after trial would be life

imprisonment. Varela asked the judge to undercut the

prosecution’s offer by a lesser prison term. The judge

refused. Varela then asked for a one day continuance

to think about the plea offer. The judge denied the

request but allowed Varela to confer privately in the

jury room with his counsel to discuss the plea offer.

After the conference, Varela returned to the courtroom,

declined the plea, continued with the trial, was

convicted, and sentenced to 25 years in prison. Varela

filed a postconviction motion claiming ineffective

assistance of counsel.

2%.

At the evidentiary hearing, Varela testified that he

had no recollection of either the trial judge or his

counsel advising him of the possibility of a life sentence

(in direct contradiction to the trial court’s advisement

of such during the plea discussion in open court).

Varela also testified that his trial counsel opined that

in the event of conviction, he would in all likelihood

receive a ten-year sentence. In contrast, Varela’s

defense counsel testified that he had repeatedly told

Varela of the possibility of an enhanced sentence of up

to life imprisonment and merely indicated that Varela

might likely receive a ten-year sentence if convicted.

The trial judge denied the postconviction motion and

Varela appealed.

On appeal, the reviewing court affirmed, finding in

pertinent part that Varela “emphatically rejected the

[state’s offer] even prior to his counsel’s expressed

opinion that [the defendant] would probably receive a

ten year sentence from the lower court upon

conviction.” Jd. at 1345 (emphasis supplied).

The undisputed facts in the case at bar are

materially different from the facts of Varela. Here, the

petitioner's trial judge did NOT participate in the plea

process (other than to approve the 10-year sentence).

Nor did the trial judge here advise the petitioner of his

sentencing exposure to 34 years in prison. (Neither did

the prosecutor or defense counsel so inform the

petitioner.) Additionally, the petitioner did not reject

the plea offer until after he specifically asked trial

counsel what sentence he was facing if convicted after

trial and only after trial counsel affirmatively

misrepresented the sentence as 20 years. Moreover, the

petitioner specifically and detrimentally relied upon

trial counsel’s answer and would not have continued

with the trial had he known he was facing 34 years in

prison. These critical and undisputed facts clearly

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distinguish Varela. Thus, habeas relief was warranted

because the decision of the state reviewing court,

relying solely upon Varela, necessarily “was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” See 28 U.S.C. §

2254(d)(2).

H. Summation

This case involves important constitutional

questions about the correct legal standards to be

applied and the proof required to establish prejudice

under this Court's decisions in Strickland and Hill.

Additionally, in the other circuits that have addressed

these questions at length and under similar facts, the

testimony of the petitioner, along with that of his trial

counsel, and consideration of the sentencing

disparities, would have been sufficient to establish

prejudice (as well as deficient performance). Certiorari

review is respectfully requested for consideration and

clarification of these important questions.

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CONCLUSION

For the foregoing reasons, the petitioner

respectfully requests that the Petition for Writ of

Certiorari to the United States Court of Appeals for the

Eleventh Circuit be granted

Respectfully submitted,

PAUL MORRIS

Counsel of Record

9130 S. Dadeland Blvd.

Suite 1528

Miami, FL 33158

(305) 670-1441

Counsel for Petitioner

DATED: September, 2008

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