The opinion of the court was delivered by: M. Casey Rodgers Chief United States District Judge
This cause comes on for consideration upon the magistrate judge's Report and Recommendation dated August 25, 2011. (Doc. 27). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de novo of petitioner's objections. (Doc. 28).
Having considered the Report and Recommendation, and any objections thereto timely filed, I have determined that all of the claims were properly rejected without an evidentiary hearing except for Ground 1, petitioner's claim that trial counsel was ineffective for failing to properly advise him during plea negotiations with the State. Thus, for the reasons given below, the Report and Recommendation is accepted in part and rejected in part.
Petitioner was charged in the Circuit Court for Alachua County, Florida, with four counts of lewd and lascivious battery with penetration*fn1 involving a child under age 16. The charges were based on a sexual relationship between petitioner and the twelve-year-old daughter of a friend during the summer of 2002. As the case against petitioner proceeded, petitioner's counsel negotiated with the prosecutor, and discussed with petitioner, various offers made by the state. The history of these plea negotiations is outlined in the transcript of the pretrial conference. (Ex. N, which is attach. 18 of Doc. 16). During the hearing, the court asked about the possibility of a plea, and counsel for petitioner noted that a plea of eight years had been offered. Counsel was referring to an offer that was made in writing and presented to petitioner along with the state's witness list. It included the offer and also a statement of the minimum sentences that petitioner faced:
Plea Offer: PRE-DEPO: (OFFER GOOD FOR 30 DAYS) - PLEA AS CHARGED, ADJUDICATED GUILTY, 8 YRS. DOC FOLLOWED BY 7 YRS. SEX OFFENDER PROBATION W/PSYCHO-SEXUAL TREATMENT, DNA DRAW, HIV/STD TESTS, NO CONTACT W/VICTIM, PAY RESTITUTION, CC, INVESTIGATIVE COSTS AS APPLICABLE.
"NOTE: DEFENDANT SCORES MINIMUM 23.7 YRS. DOC AS CHARGED. DEFENDANT SCORES MINIMUM 9.1 YRS. DOC ON ONE COUNT OF LEWD OR LASCIVIOUS BATTERY"
(Ex. N, p. 60, which is attach. 18 of Doc. 16, pdf p. 98).
After petitioner's counsel mentioned the written eight-year plea offer to the judge during the pretrial conference, the prosecutor responded that this eight-year plea offer had been offered "[a] long time ago," and rejected by petitioner. Counsel for petitioner then replied, "I think the current number that was floating in the ether was about five years, and Mr. Theus was not accepting that. He wants to go to trial." (Doc. 27, p. 12-13). The judge then inquired whether petitioner wanted to plead straight to the charge, but petitioner declined and went to trial. He was eventually convicted of all four counts of lewd and lascivious battery and sentenced to life imprisonment on all four counts, based on his extensive criminal history.
THE PETITIONER'S CLAIM IN GROUND ONE
Along with his other claims, petitioner argues that his counsel was ineffective for failing to advise him during plea negotiations that he faced life imprisonment if convicted. He states that if he had known that, he would have accepted the five year plea that was "in the ether," according to his counsel, and would not have gone to trial.
The petitioner claims that he did not accept the plea on advice of counsel. According to petitioner,*fn2 counsel advised that because no rape kit was used on the victim (and thus no physical evidence existed that petitioner and the victim had even had intercourse) and because the victim and her mother would not be credible witnesses, the prosecution would not be able to prove its case. The petitioner also claims that counsel told him he faced only 15 years if convicted. Indeed, the transcript contains in-court statements by petitioner's counsel which suggest he may not have realized that his client faced life imprisonment. For example, during a sidebar at the trial, counsel states, "My client, if convicted, is looking at 30 -- approximately 30 years and I think I have the right to go into ... ." (Doc. 1, p. 27). Had he known that he faced life imprisonment rather than 15 or 30 years, petitioner argues, he would have accepted the five-year plea and would not have gone to trial.
THE TRIAL COURT'S RULING ON PETITIONER'S 3.850 MOTION
This issue was raised in the state 3.850 motion and rejected by the trial court with ...