Suarez v. Sec'y, Dep't of Corr.
| Decision Date | 10 April 2013 |
| Docket Number | CASE NO. 6:10-cv-1179-Orl-36GJK |
| Parties | ARSENIO SUAREZ, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
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. 10). Petitioner filed a reply to the response (Doc. No. 13) and an amended reply (Doc. No. 15).
Petitioner alleges four claims for relief in his habeas petition: (1) trial counsel misadvised him with respect to the sentence he would receive after pleading guilty to violating his probation; (2) trial counsel was ineffective for failing to object to the 160 points added to his scoresheet; (3) trial counsel was ineffective for failing to advise him of an available defense to the violation of probation; and (4) trial counsel was ineffective forfailing to move for a downward departure sentence. For the following reasons, the Court finds that Petitioner is not entitled to relief on his claims.
Petitioner was charged with five counts of lewd or lascivious battery. Petitioner entered into a negotiated plea whereby Petitioner agreed to plead guilty to counts four and five in exchange for ten years of sex offender probation. On March 17, 2007, a warrant was issued for Petitioner's arrest for violating his probation. Petitioner entered a nolo contendere plea to the violation of probation ("VOP"), and the trial court sentenced Petitioner to concurrent terms of 186.75 months in prison. Petitioner did not appeal.
Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and alleged four claims. The trial court held an evidentiary hearing on Petitioner's claims and then denied the motion. The Fifth District Court of Appeal affirmed per curiam. The instant federal petition for writ of habeas corpus follows.
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:
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 thanincorrect 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.
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.1 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 (2011) (quoting Knowles v. Mirzayanze, 129 S. Ct. 1411, 1420 (2009) (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)). In Hill v. Lockhart, 474 U.S. 52, 58 (1985), the United States Supreme Court held that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel."
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) (). Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
Petitioner claims that trial counsel misadvised him with respect to the sentence hewould receive after pleading guilty to the VOP (Doc. No. 1 at 5). In support of this claim, Petitioner alleges that counsel advised him that if he entered a plea to the VOP, his probation would be reinstated. Id. Petitioner further asserts that counsel never told him that the Court could impose any sentence up to the statutory maximum. Id. Petitioner also argues that witness Cindy Balay ("Balay") would have testified that she was present when counsel promised Petitioner that he would be reinstated to probation. Id. In his reply, Petitioner states that he also would have called Dr. Greico, his counselor, to testify on his behalf. However, Petitioner does not allege the substance of Dr. Greico's testimony (Doc. No. 15 at 3-5).
Petitioner raised this claim in his Rule 3.850 motion for post-conviction relief (App. D at 35-36). The state court held an evidentiary hearing on this claim. At the hearing, defense counsel David Faulkner ("Faulkner") testified that although he had discussed with Petitioner the "possibility" or "hope" that the trial judge would reinstate probation if Petitioner entered a nolo contendere plea to the VOP, he also discussed the fact that the trial court could sentence Petitioner to the maximum prison term, thirty years, if the sentences for both counts were run consecutively (App. E at T 8-10, 12). Faulkner unequivocally stated that he never promised Petitioner that he would be reinstated to probation. Id. at 12.
Petitioner testified that prior to entering a plea on the VOP, Faulkner told him that the trial judge was a "nice judge" and would reinstate his probation. Id. at 10. Furthermore, Petitioner testified that Faulkner tapped him on the shoulder and assuredhim his probation would be reinstated. Id. at 13. Petitioner later admitted that this conversation occurred after the change of plea hearing. However, Petitioner maintained that counsel had told him, prior to the entry of his plea, that his probation would be reinstated. Id. at 31-32. Petitioner also testified that he was under the impression that his reinstatement to probation was "a...
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