Erke v. Sec'y

Decision Date12 April 2018
Docket NumberCase No. 3:15-cv-493-J-34MCR
CourtU.S. District Court — Middle District of Florida
I. Status

Petitioner Nathaniel Erke, an inmate of the Florida penal system, initiated this action on April 20, 2015, by filing a pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28 U.S.C. § 2254. In the Petition, Erke challenges a 2010 state court (Duval County, Florida) judgment of conviction for armed burglary and two counts of armed robbery. Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Answer in Response to Order to Show Cause and Petition for Writ of Habeas Corpus (Response; Doc. 10) with exhibits (Resp. Ex.). On September 3, 2015, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. 5), admonishing Erke regarding his obligations and giving Erke a time frame in which to submit a reply. Erke submitted a brief in reply. See Petitioner's Reply to Respondents' Answer Brief (Reply; Doc. 11). This case is ripe for review.

II. Procedural History

On March 25, 2009, the State of Florida charged Erke with armed burglary (count one) and armed robbery (counts two and three). See Resp. Ex. A at 15-16, Information. On February 25, 2010, Erke entered a guilty plea to all three charges. See id. at 42-43, 107-18, Transcript of the Plea Proceeding (Plea Tr.). On April 7, 2010, the court sentenced Erke to a term of imprisonment of thirty-five years on each count, to run concurrently with each other. See id. at 44-50, 147-205, Transcript of the Sentencing Hearing (Sentencing Tr.).

On direct appeal, Erke, with the benefit of counsel, filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). See Resp. Ex. B. Erke filed a pro se brief, arguing that (1) the trial court should have appointed conflict-free counsel to advise him about his motion to withdraw the plea; (2) counsel misadvised him about the sentencing possibilities; (3) the trial court erred when it struck his pro se motion to withdraw the plea as a nullity due to representation when he asserted an adversarial relationship with counsel; (4) the trial court committed fundamental error when it imposed a vindictive sentence; (5) he was not fully aware of the consequences of his plea; (6) he was led to expect a lenient sentence that was similar to his co-defendants' sentences; (7) the trial court erred when it accepted his plea without the State identifying its evidence; (8) the court accepted his plea when hecontinued to maintain his innocence; and (9) the court failed to: (a) consider the benefits of a youthful offender sentence, and (b) provide reasons for not sentencing him under the youthful offender guidelines. See Resp. Ex. E. On September 23, 2011, the appellate court affirmed Erke's conviction and sentence per curiam, see Resp. Ex. F, and later denied his motion for rehearing on December 5, 2011, see Resp. Exs. G; H. The mandate issued on December 21, 2011. See Resp. Ex. I.

On December 14, 2011, Erke filed a pro se motion for reduction or modification of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). See Resp. Ex. J. The court denied the motion on January 11, 2012. See Resp. Ex. K.

On April 11, 2012, Erke filed a pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motion). See Resp. Ex. L at 5-32. In his request for post-conviction relief, he asserted that counsel (Michael Bossen) was ineffective because he failed to: challenge Erke's sentence on the basis of bias, prejudice, vindictiveness, and/or disparity (ground one); procure a sentencing cap prior to the open plea (ground four); and move to disqualify the sentencing judge (ground five). Additionally, he stated that counsel was ineffective because he advised him to reject the State's plea offer for 9.2 years (ground three). He also asserted that his plea was involuntary because he relied on counsel's advice that the openplea would result in a youthful offender sentence (ground two). On September 28, 2012, the circuit court denied his Rule 3.850 motion. See id. at 35-82. Erke filed an appellate brief, see Resp. Ex. M, and the State filed a notice that it did not intend to file an answer brief, see Resp. Ex. N. On February 14, 2013, the appellate court affirmed the court's denial of post-conviction relief per curiam, see Resp. Ex. O, and later denied his motion for rehearing, see Resp. Exs. P; Q. The mandate issued on April 18, 2013. See Resp. Ex. R.

On August 8, 2013, Erke filed a pro se petition for writ of habeas corpus. See Resp. Ex. S. In the petition, he asserted that counsel was ineffective because he failed to raise the following issues on direct appeal: (1) the sentencing judge violated Erke's right to due process when he commented on the truthfulness of Erke's testimony and other impermissible factors upon which the sentence was based; (2) the sentencing judge abused his discretion and committed fundamental error when he imposed a vindictive sentence; (3) counsel advised him to reject the State's plea offer of 110 months (9.2 years); (4) counsel misadvised him when he told him that either a youthful offender sentence of no more than six years, or a non-prison sanction would be possibilities during sentencing, and failed to inform him that the trial court would have to find a specific reason for a downward departure; (5) the trial court erred when it denied his pro se motion to withdraw theplea without appointing conflict-free counsel to advise him; and (6) a successor judge improperly sentenced him. The appellate court directed the State to respond to grounds two and six. See Resp. Exs. T; V. The State responded, see Resp. Exs. U; W, and Erke filed a reply, see Resp. Ex. X. On December 2, 2014, the appellate court denied the petition on the merits, see Resp. Ex. Y, and later denied Erke's motions for rehearing, see Resp. Exs. Z; AA; BB.

III. One-Year Limitations Period

The Petition appears to be timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In 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 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), cert. denied, 137 S.Ct. 2245 (2017). "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 factsof this case are fully developed in the record before the Court. Because this Court can "adequately assess [Erke'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.

V. Governing Legal Principles
A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a state prisoner's federal petition for habeas corpus. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct. 1432 (2017). "'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) (quotation marks omitted)). As such, federal habeas review of final state court decisions is "'greatly circumscribed' and 'highly deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court decision, if any, that adjudicated the claim on the merits. See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc), cert. granted, 137 S.Ct. 1203 (2017); Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). Regardless of whether the last state courtprovided a reasoned opinion, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011) (citation omitted); see also Johnson v. Williams, 568 U.S. 289, 301 (2013).1 Thus, the state court need not issue an opinion explaining its rationale in order for the state court's decision to qualify as an adjudication on the merits. See Richter, 562 U.S. at 100.

If the claim was "adjudicated on the merits" in state court, § 2254(d) bars relitigation of the claim unless the state court's decision (1) "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) "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); Richter, 562 U.S. at 97-98. As the Eleventh Circuit has explained:

First, § 2254(d)(1) provides for federal review for claims of state courts' erroneous legal conclusions. As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two distinct clauses: a "contrary to" clause and an "unreasonable application" clause. The "contrary to" clauseallows for relief only "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law

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