Pena v. Sec' y Fla. Dept. of Corrs.
| Decision Date | 22 July 2021 |
| Docket Number | 1:18-cv-129-MCR-GRJ |
| Parties | ADOLFO PENA, Petitioner, v. SECRETARY, FL. DEPT. OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
REPORT AND RECOMMENDATION
Petitioner initiated this case on July 9, 2018 by filing a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his Alachua County, Florida guilty plea and conviction on three counts for which he is serving a ten-year sentence. ECF No. 1. The trial court sentenced Petitioner to five-years on Count I-Improper Use of a Computer and Count III-Unlawful Use of a Two-Way Communication Device, and ten years on Count II-Traveling to Meet a Minor, with the sentences to run concurrently.
Petitioner filed an Amended Petition on July 23, 2018. ECF No. 4. On November 7, 2018, the Respondent filed a Response together with relevant portions of the state court record. ECF No. 4. Although afforded an opportunity to do so, Petitioner has not filed a reply. Upon due consideration of the Petition and the Response, it is respectfully recommended that the Petition be denied.[1]
The procedural history of Petitioner's case may be summarized as follows. Petitioner was charged by an Information in the Eighth Judicial Circuit Court in and for Alachua County Florida in Case No. 2013CF002441 with: Count I - Improper Use of a Computer; Count II - Traveling to Meet a Minor; and Count III - Unlawful Use of a Two-Way Communication Device. ECF 14-1 at 7.
Prior to the plea hearing, counsel filed a motion to suppress Petitioner's statements and all evidence obtained as a result of those statements, ECF 14-1 at 55-63, and a motion to dismiss based on entrapment and double jeopardy grounds.[2] ECF 14-1 at 47-54. On June 10, 2014, the state court denied the motion to suppress. ECF 14-1 at 15. On June 11, 2014, the motion to dismiss was pending when Petitioner entered open no contest pleas on all counts before the court and faced sentencing. Id. The state court sentenced Petitioner to five (5) years in Counts I and III and to ten (10) years in Count II, with the sentences to run concurrently. ECF 14-1 at 8 and 86-90.
Petitioner appealed his judgment and sentence to the First District Court of Appeal (hereinafter “1st DCA”) in Case No. 1D14-2786. Upon the filing of an Anders[3] brief, Petitioner was permitted to file his own brief and instead filed a notice of non-briefing. On February 20, 2015, the 1st DCA issued a per curiam opinion, affirming the trial court. Pena v. State, 158 So.3d 570 (Fla. 1st DCA 2015). The court's mandate was issued on March 18, 2015. No further review was sought.
On April 21, 2015, Petitioner filed his pro se Motion for Postconviction Relief pursuant to Florida Rule of Criminal Procedure 3.850 under the mailbox rule. Petitioner contended that his pleas had been involuntarily given based on ineffective assistance of counsel in that counsel had misadvised him that he faced a maximum four-year sentence if he pleaded no contest rather than go to trial. Petitioner further asserted that counsel misadvised him that the motion to dismiss would be heard by an appellate court after the plea was entered. Lastly, he argued that counsel was ineffective in failing to pursue the motion to dismiss because Counts I and II were barred by double jeopardy. The court summarily denied all claims, attaching records to support its decision.
Petitioner appealed the denial of his motion for postconviction relief to the 1st DCA in Case No. 1D16-871 on three grounds: (1) he was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel as a result of counsel's misadvising him that the court would “work with him” and a four-year sentence would be the “worst case” scenario; (2) trial counsel failed to ensure that the motion to dismiss would be heard by the appellate court subsequent to the entered plea; and (3) he was denied his Sixth and Fourteenth Amendment right to effective assistance of counsel when trial counsel advised him to waive/abandon the issue of double jeopardy prior to entering the open plea. The State filed a Notice of Non-Briefing. On June 2, 2016, the 1st DCA affirmed per curiam without a written decision. Pena v. State, 194 So.3d 1025 (Fla. 1st DCA 2016). The mandate issued on August 9, 2016. No further review was sought.
On July 12, 2016, Petitioner filed a Motion to Correct Illegal Sentence under the mailbox rule, claiming that his sentences for soliciting a minor and traveling to meet a minor violated double jeopardy principles. The court found that the claim was really a challenge to the convictions that should have been brought under Florida Rule of Criminal Procedure 3.850, and when considered as such, that the claim lacked merit.
Petitioner appealed the denial of his postconviction motion to the 1stDCA in Case No. 1D16-3761. No briefs were filed in that case. On May 9, 2018, the 1st DCA issued a per curiam opinion, affirming. Pena v. State, 246 So.3d (Fla. 1st DCA 2018).
The instant federal petition was filed in this Court on July 5, 2018. ECF No. 1. On July 23, 2018, Petitioner filed an Amended Petition. ECF No. 4. In the Amended Petition, Petitioner asserts four claims for relief: (1) his convictions for soliciting and traveling in Counts I and II violate double jeopardy principles; (2) that the Florida Legislature has not stated its intent to authorize separate convictions for the same conduct under Florida Statutes § 847.0135; (3) trial counsel misadvised him about the harshest sentence he would receive if he entered an open plea thereby rendering the plea involuntary; and (4) trial counsel provided ineffective assistance in advising Petitioner to withdraw his motion to dismiss prior to entering an open plea.
Before bringing a habeas action in federal court, a petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state postconviction motion. 28 U.S.C. § 2254(b)(1), (c). Respondent concedes that the Petition is timely and that Petitioner exhausted his state court remedies with respect to the double jeopardy challenge and the ineffective assistance claim. See Response, at 15 and 23.
For claims that are properly exhausted, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) imposes limitations on the scope of this Court's review. Under 28 U.S.C. § 2254(d)(2), a federal court may not grant a state prisoner's application for a writ of habeas corpus based on a claim already adjudicated on the merits in state court unless that adjudication “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.” Under § 2254(e)(1), “a determination of a factual issue made by a State court shall be presumed to be correct, ” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” “‘[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'” Burt v. Titlow, 571 U.S. 12, 134 S.Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841(2010)).
As to legal findings, a petitioner is entitled to federal habeas relief only if the state court's adjudication of the merits of the federal 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.” § 2254(d)(1). See Burt v. Titlow, 571 U.S. 12 (2013) (). This standard “recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Id. at 19.
This highly deferential standard carries special force in habeas cases asserting ineffective assistance of counsel claims: “Especially where a case involves such a common claim as ineffective assistance of counsel under Strickland[4]-a claim state courts have now adjudicated in countless criminal cases for nearly 30 years-‘there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned . . . than his neighbor in the state courthouse.'” Id. (quoting Stone v. Powell, 428 U.S. 465, 494, n. 35 (1976)).
In view of the deference afforded to the state courts' adjudication of constitutional claims, AEDPA “erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court, requiring them to show that the state court's ruling was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.'” Id. at 12 (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786-787 (2011)). “‘If this standard is difficult to meet'-and it is-'that is because it was meant to be.'” Id. at 20 (quoting Harrington, 131 S.Ct. at 786). “We will not lightly conclude that a State's criminal justice system has experienced the ‘extreme malfunction' for which federal habeas relief is the remedy.” Id. (quoting Harrington, 131 S.Ct. at 786).
In his first two claims, Petitioner argues that his convictions for soliciting and traveling violate double jeopardy principles, and that the Florida Legislature has not explicitly stated that it intended to allow for separate convictions for the same conduct. ECF No. 4.
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