Barritt v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 04 August 2020
• Docket Number: No. 16-17789,16-17789
• Citation: Barritt v. Sec'y, Fla. Dep't of Corr., 968 F.3d 1246 (11th Cir. 2020)
• Parties: Anthony BARRITT, Petitioner - Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

968 F.3d 1246

Anthony BARRITT, Petitioner - Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent - Appellee.

No. 16-17789

United States Court of Appeals, Eleventh Circuit.

August 4, 2020

Jonathan R. Ference-Burke, Douglas Hallward-Driemeier, Ropes & Gray, LLP, Washington, DC, Devon Applegate Caton, Ropes & Gray, LLP, Boston, MA, for Petitioner-Appellant.

Thomas Howland Duffy, Pam Bondi, Charles Richey McCoy, Office of the Attorney General, Tallahassee, FL, for Respondent-Appellee.

Before MARTIN, NEWSOM, and O'SCANNLAIN,^* Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a Florida state prisoner is entitled to federal habeas relief based on several claims of ineffective assistance of counsel.

I

In 2007, Anthony Barritt was charged in Florida Circuit Court with four counts of sexual battery on a child between the ages of 12 and 18 years old by someone in familial or custodial authority, one count of possession of child pornography with intent to promote, four counts of possession of child pornography, and, in a separate case, one count of possession of a firearm by a convicted felon.The sexual battery charges were based on sexual activity between Barritt and the victim B.L., his step-daughter at the time.The child pornography charges were based on video recordings of four separate incidents.

Barritt pleaded nolo contendere and was duly sentenced to a 25-year prison term on the sexual battery and child pornography charges and a fifteen-year term for the firearm charge, to run concurrently.

A

In 2009, Barritt's state post-conviction proceedings, the Florida Circuit Court found that the four counts of sexual battery were barred by the statute of limitations, which had run at the time Barritt was charged.¹The court vacated the judgment and sentences and allowed Barritt to withdraw his plea as to these charges.

Because the State failed to present evidence that Barritt actually possessed a firearm, the court also allowed him to withdraw his plea as to the firearm charge.

Shortly thereafter, the State of Florida filed a second amended information against Barritt that included all the previous charges along with three additional charges of capital sexual battery² and two charges of tampering with physical evidence.The State also threatened to charge Barritt's brotherJames Marini with evidence tampering charges because he allegedly removed the firearm from Barritt's truck after the arrest.Barritt and the State entered a plea agreement, under which Barritt would again plead nolo contendere to the original charges in return for the same sentences, and the State would drop the new capital sexual battery and evidence tampering charges, including those against Marini.In addition, Barritt agreed to waive any statute of limitations defenses he might have and all postconviction rights with the exception of collateral relief for a claim of ineffective assistance of counsel.The agreement also contained a provision, initialed by Barritt, that stated, "Because I wish to accept the State's plea offer, at my request and with my agreement, my attorney has not fully investigated my case nor talked to all of the witnesses."

During a lengthy plea colloquy in open court, Barritt acknowledged, under oath, that he understood the terms of the agreement and that it was in his best interest.At one point, Barritt was asked by his attorney, Christopher Small, if he had been "threatened, coerced, into entering a plea so that [his] free will has been negated," to which he responded "Yes, sir."He immediately backtracked, though, and stated, "[I]t's my decision," and when questioned by the judge, explained that he wanted to go through with the plea.Small then asked him again if he had been coerced or threatened to which Barritt answered no.The judge again asked Barritt multiple times if he had been coerced in any way, and, each time, Barritt answered no.The judge accepted the plea and sentenced Barritt to a 25-year prison term on the original charges, including a fifteen year term for firearm possession, to run concurrently with the sexual battery and child pornography charges.Under the terms of the agreement, Barritt waived his right to appeal, so no appeal was taken.

B

In 2010, Barritt filed a new motion for postconviction relief, which, after some procedural rounds, the Florida Court of Appeal denied.

C

In 2015, Barritt filed this petition for writ of habeas corpus under 28 U.S.C. § 2254, listing ten ineffective assistance of counsel claims, and a claim for cumulative error based on counsel's deficiencies, nearly all of which were exhausted in state court proceedings,³ three of which claims⁴ are before us.The magistrate judge issued a Report and Recommendation denying relief on all grounds.Barritt filed an objection to the Report and Recommendation, newly asserting that he had been "coerced" into accepting the plea and that the magistrate judge erred in not addressing the issue.The district court adopted the Report and Recommendation, denied the writ, and denied a certificate of appealability.

D

Barritt filed a notice of appeal from denial of the writ, and this court granted a certificate of appealability on three issues: (1) Whether the district court violated Clisby v. Jones , 960 F .2d 925(11th Cir.1992)(en banc), by failing to address all claims fully, specifically by failing to address an alleged "coercion" claim within Barritt's ineffective assistance of counsel claim for failure to investigate the capital sexual battery charges (" Clisby claim"); (2) Whether the district court erred in denying, without an evidentiary hearing, Barritt's claim that counsel was ineffective for failing to advise him of a prosecutorial vindictiveness defense ("prosecutorial vindictiveness claim"); and (3) Whether the district court erred in denying, without an evidentiary hearing, Barritt's claim that counsel was ineffective for failing to advise him of a double jeopardy defense to the charges of possession of child pornography and possession of child pornography with intent to promote ("double jeopardy claim").

II

Barritt first argues that the district court violated Clisby v. Jones , which mandates that a federal district court must "resolve all claims for relief raised in a petition for writ of habeas corpus ... regardless whether habeas relief is granted or denied."Id. at 936.There, Clisby's habeas petition presented nineteen claims of constitutional violations to the district court, which dismissed thirteen, granted relief on one, and reserved judgment on the remaining five.We refused to consider the claims the district court had failed to address and remanded the case to the district court to consider every claim raised, emphasizing "the importance of litigating all of a petitioner's claims in one habeas proceeding, both at the trial and appellate levels."Id. at 935(emphasis in original).

For Clisby purposes, a claim for relief is "any allegation of a constitutional violation."Id . at 936.In that case, the district court reserved judgment on three ineffective assistance of counsel claims based on violations of the Sixth Amendment, and two incompetent psychiatric assistance claims based on violations of the Eighth Amendment.Id . at 935.The court noted that each ineffective assistance of counsel allegation constituted a distinct claim because an "allegation of one constitutional violation and an allegation of another constitutional violation constitute two distinct claims for relief."Id . at 936.Clisby held that the district court erred in that case because, even though it was conscious of the existence of other claims, it chose not to address them at all.

Barritt does not disagree that the district court addressed all of his ineffective assistance of counsel claims, which ordinarily would dispose of the Clisby issue.

But he now asserts that it failed to address an alleged "coercion" claim that he believes was wrapped within his ineffective assistance of counsel claims for 1) failure to investigate the capital sexual battery charges (Ground 1) and 2) failure to advise him of a prosecutorial vindictiveness defense (Ground 9).In various parts of his Petition, Barritt alludes to "pressure,""threats," or "coercion"he felt that allegedly forced him to plead.⁵For example, in his claim for ineffective assistance of counsel for failure to investigate the capital sexual battery charges, Barritt recited that he felt pressure to plead nolo contendere because he did not want to be punished for a capital sexual battery crime he did not commit.Similarly, in his claim for ineffective assistance of counsel for failure to advise him of a prosecutorial vindictiveness defense, Barritt asserted that the State brought the additional charges to pressure him into pleading.

Yet, simply because Barritt made passing references to "coercion" does not mean he asserted an independent coercion claim for the purposes of Clisby .In neither the state court nor the district court did Barritt ever allege a freestanding coercion claim, which would mean that the agents of the State"produce[d] a plea by actual or threatened physical harm or by mental coercion overbearing [his] will[.]"Brady v. United States , 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747(1970).

We have held that district courts violated Clisby when a petitioner attached a memorandum with facts demonstrating specific failures of counsel to support his "ineffective assistance of counsel claims" and the district court addressed ineffective assistance of counsel generally but not all of the alleged failures.SeeDupree v. Warden,715 F.3d 1295, 1299(11th Cir.2013);Rhode v. United States , 583 F.3d 1289, 1291-92(11th Cir.2009).Here, though, he relies only on ineffective assistance of counsel claims for failure to investigate (Ground 1) and failure to raise a prosecutorial vindictiveness defense (Ground 9) and then later asserts that the facts supporting these...