Cotrufello v. Sec'y, Dep't of Corr.

• Decision Date: 16 July 2012
• Docket Number: CASE NO. 6:09-cv-1777-Orl-36KRS
• Parties: ELI COTRUFELLO, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

ELI COTRUFELLO, Petitioner,

v.SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

CASE NO. 6:09-cv-1777-Orl-36KRS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

Dated: July 16, 2012

ORDER

Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section 2254 (Doc. No. 1). Upon consideration of the petition, the Court ordered Respondents to show cause why the relief sought in the petition should not be granted. Thereafter, Respondents filed a response to the petition for writ of habeas corpus in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases for the United States District Courts (Doc. No. 7). Petitioner was given an opportunity to file a reply but he has not done so.

Petitioner alleges one claim for relief, that trial counsel rendered ineffective assistance by misrepresenting the sentence that he would receive. For the following reasons, the Court finds that Petitioner is not entitled to relief on his claim.

I. Procedural History

Petitioner was charged by information with one count of home invasion robberywith a firearm. Petitioner entered an open guilty plea to the charged crime. The trial court sentenced Petitioner to a thirty-year term of imprisonment. Petitioner appealed, and appellate counsel filed an Anders¹ brief and moved to withdraw from the case. The Fifth District Court of Appeal granted the motion to withdraw and affirmed per curiam. Petitioner subsequently filed a Rule 3.850 motion for post-conviction relief alleging one claim. The trial court summarily denied the claim. The appellate court per curiam affirmed.

The instant federal habeas corpus petition follows.

II. Legal Standards

A. Standard of Review Under the Antiterrorism Effective Death Penalty Act ("AEDPA")

Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). See Brown v. Patton, 544 U.S. 133, 141 (2005); Price v. Vincent, 538 U.S. 634, 638-39 (2003). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Calliper, 527 F.3d 1144, 1146 (11th Cir. 2008).

"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issues its decision. Carey v. Musladin, 549 U.S. 70, 74 (2006)(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). "[T]o be 'contrary to' clearly established federal law, the state court must either (1) apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a different result from the Supreme Court when faced with materially indistinguishable facts." Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (internal quotations and citation omitted); Mitchell v. Esparza, 540 U.S. 12, 16 (2003). A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown, 544 U.S. at 134; Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000); or, "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The "unreasonable application" inquiry "requires the state court decision to be more than incorrect or erroneous"; it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted); Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155.

B. Standard for Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are reviewed under the standards established by 28 U.S.C. § 2254(d). Newland v. Hall, 527 F.3d 1162, 1183 (11th Cir. 2008).Post-AEDPA, the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), remains applicable to the claims of ineffective assistance of counsel raised in this case. Newland, 527 F.3d at 1184. In Strickland, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.² Strickland, 466 U.S. at 687-88; see also Bobby Van Hook, 130 S. Ct. 13, 16 (2009). A habeas court's review of a claim under the Strickland standard is "doubly deferential." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (April 4, 2011) (quoting Knowles v. Mirzayanze, 129 S. Ct. 1411, 1420 (2009) (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)).

States may "impose whatever specific rules . . . to ensure that criminal defendants are well represented," but "the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices." Bobby Van Hook, 130 S. Ct. at 17 (internal quotations and citations omitted). It is petitioner who bears the heavy burden to "prove, by a preponderance of the evidence, that counsel's performance was unreasonable." Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690),applying a "highly deferential" level of judicial scrutiny. Id. A court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. An attorney is not ineffective for failing to raise or preserve a meritless issue. Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989); United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) ("a lawyer's failure to preserve a meritless issue plainly cannot prejudice a client"). "To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or 'what is prudent or appropriate, but only what is constitutionally compelled.'" Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)(quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

III. Analysis

Petitioner claims that trial counsel was ineffective for misrepresenting the sentence that he would receive (Doc. No. 1 at 6).³ Petitioner specifically alleges that trial counseladvised him to reject the State's twenty-year plea offer and enter an open plea because he would likely receive a ten-year sentence. Id. Petitioner contends that he was never advised that the trial court could sentence him to thirty years in prison. Id. Additionally, Petitioner states that he never discussed with counsel the fact that he could receive a life sentence. Id. at 8. Petitioner maintains that had he known he would be sentenced to thirty years in prison, he would have accepted the State's plea offer, as counsel's advice did not amount to sound strategy and was a "dangerous gamble." Id.

Petitioner raised this ground in his Rule 3.850 motion for post-conviction relief (App. C). The state trial court denied the claim, stating the following:

The Defendant alleges that his trial counsel misrepresented the potential sentence exposure he faced by entering an open guilty plea by telling him that he would receive a sentence of between 10-20 years, but no more than 20 years in prison as a consequences of his plea. However, the written plea form reflects that the charge was a 1PBL (first degree felony punishable by life in prison). See Exhibit A, Plea Form. The record reflects that Mr. Sawtelle [defense counsel] and the Court advised the Defendant at the plea hearing that the maximum potential sentence he faced as a consequence of his plea was life in prison. See Exhibit B, Plea Transcript, pages 3-4. The Defendant also acknowledged on the written plea form and also orally to the Court during the plea colloquy that no promises had been made to him regarding any potential sentences he would receive at a subsequent sentencing hearing. See Exhibit A, paragraph 5; and Exhibit B, pages 5-6. The Court finds that the cited portions of the record conclusively refute the Defendant's claim that he was not warned prior to the entry of his plea that his open plea exposed him to a sentence greater than 20 years inprison.

The Defendant further alleges that he rejected the State's 20 year plea offer based upon trial counsel's representation or promise that he could obtain a sentence of less than 20 years for the Defendant based upon the State's failure to include the allegation of discharge of the firearm in the Information. The Defendant contends that he would have accepted the State's 20 year plea offer, and received a lower sentence than the 30 years he ultimately received but for counsel's supposed misadvice and alleged minimizing the risk the Defendant was taking by entering an open plea. However, the Court finds that the record conclusively refutes this claim. In the written plea form, the Defendant acknowledged that no one had promised him anything to get him to enter his plea. See Exhibit A, paragraph 5. Additionally, the plea transcript reflects that the

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