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Walker v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Tampa Division

February 7, 2017

ROMERIO LA'TEE WALKER, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          Charlene Edwards Honeywell United States District Judge

         Petitioner Romerio La'Tee Walker, proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. 1.) He also filed a memorandum of law with an appendix. (Dkts. 3, 4.) Walker challenges convictions entered by the Circuit Court for the Tenth Judicial Circuit, in and for Polk County, Florida. Respondent filed a response (Dkt. 27), in which it concedes the petition's timeliness. Petitioner filed a reply with an appendix. (Dkts. 31, 32.) Upon review, the petition must be denied.

         PROCEDURAL HISTORY

         Walker was charged with possession of cocaine with intent to sell (count one) and possession of drug paraphernalia (count two). (Dkt. 29, Ex. 1.) In August 2008, he entered a plea of no contest in exchange for a sentence of eight years in prison on count one, to be suspended on the condition that he complete ten years of probation. (Dkt. 29, Ex. 4.) He was sentenced to time served on count two. (Dkt. 29, Ex. 83, Vol. VII, p. 1183.) Walker voluntarily dismissed his direct appeal. (Dkt. 29, Ex. 18.) Walker's probation officer filed several affidavits alleging violations of probation. (Dkt. 29, Exs. 5, 7, 9, 10, 17.) At a June 2010 hearing, upon finding that Walker violated his probation, the court revoked probation and sentenced Walker to serve the eight year term that was previously suspended. (Dkt. 29, Ex. 31.) Walker appealed, but voluntarily dismissed his appeal. (Dkt. 29, Ex. 37.)

         Walker filed numerous postconviction motions challenging his convictions and sentences. His pleadings included several motions for postconviction relief under Florida Rule of Criminal Procedure 3.850 and a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). (Dkt. 29, Exs. 43, 54, 69.) The state court summarily denied these motions. (Dkt. 29, Exs. 56, 67, 70, 72.) In a consolidated appeal, the state appellate court per curiam affirmed the orders of denial. (Dkt. 29, Ex. 88.)[1]

         STANDARD OF REVIEW

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court review of a state court adjudication, states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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.

         In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied-the state-court adjudication resulted in a decision that (1) “was contrary to . . . clearly established Federal Law, as determined by the Supreme Court of the United States” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

         “The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide.”). The phrase “clearly established Federal law” encompasses only the holdings of the United States Supreme Court “as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.

         The purpose of federal review is not to re-try the case. “The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Cone, 535 U.S. at 693. In other words, “AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to meet, ' . . . and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt' . . . .”) (citations omitted).

         The state appellate court affirmed the denial of Walker's postconviction motion in a per curiam decision without a written opinion. This decision warrants deference under Section 2254(d)(1) because “the summary nature of a state court's decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the state court has denied relief, 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.”).

         Review of the state court decision is limited to the record that was before the state court:

We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that “resulted in” a decision that was contrary to, or “involved” an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time, i.e., the record before the state court.

Pinholster, 563 U.S. at 181-82. Walker bears the burden of overcoming by clear and convincing evidence a state court factual determination. “[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).

         INEFFECTIVE ASSISTANCE OF COUNSEL

         Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984):

The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, first, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998). Demonstrating deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Deficient performance is established if, “in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.” Id. at 690. However, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. Additionally, “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id.

         Walker must demonstrate that counsel's alleged error prejudiced the defense because “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691-92. To show prejudice, a petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. When the case involves a plea, the prejudice inquiry focuses on whether counsel's deficient performance “affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

         A petitioner cannot meet his burden merely by showing that counsel's choices were unsuccessful:

The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial . . . . We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or appropriate, but only what is constitutionally compelled.'”) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

         Sustaining a claim of ineffective assistance of counsel on federal habeas review is difficult because “[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential, ' and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (citations omitted). See also Pinholster, 563 U.S. at 202 (a petitioner must overcome the “‘doubly deferential' standard of Strickland and AEDPA.”).

         If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.”).

         DISCUSSION

         Ground Four

         Walker was represented by a succession of three attorneys, and he filed pre-plea motions to dismiss two of them. (Dkt. 29, Ex. 84, Vol. VI, pp. 1020-24, 1057-63; Vol. VII, pp. 1165-73.) Walker's last motion concerned Assistant Public Defender Geoffrey Foster, the attorney who represented him at the change of plea hearing.[2] In Ground Four, Walker asserts that “a defendant's choice to plea[d] cannot be induced by fear of a[n] unfair trial with inadequate counsel.” (Dkt. 1, p. 10.) He claims that he “allowed [him]self to be sentenced under [the] plea” agreement rather than to proceed to trial with an attorney whom the court would not dismiss. (Id.) Walker's allegation is interpreted as presenting a challenge to the voluntariness of his plea.

         Walker states that he raised this argument as claim 20 of his third amended postconviction motion. There, he alleged that he was forced to enter a plea due to judicial bias.[3] The state court denied this claim:

In claim 20, Defendant writes that his judgment and sentence were the result of judicial bias. Defendant claims that because the trial court refused to dismiss counsel and hold a rehearing on a Motion to Suppress, Defendant was led to believe that he would receive thirty years in prison if he went to trial and was convicted. Defendant claims that he should have been allowed to raise the issue of false testimony that had occurred at the Motion to Suppress. Failure to allow the rehearing resulted in Defendant's conviction. The record indicates that the Defendant decided to enter a plea rather than proceed to trial. That was a choice Defendant made. Defendant's fear that he would receive a thirty year sentence from the Court if he went to trial and lost was justified as he was charged with a second degree felony and faced a Habitual Felony Offender designation. Also, whether or not to grant a rehearing was within the discretion of the Court and failing to hold that hearing, or to dismiss counsel, does not demonstrate judicial bias. Claim 20 is DENIED.

(Doc. 29, Ex. 70, p. 1411) (court's record citations omitted).

         Walker has failed to demonstrate that his plea was involuntarily entered because the court denied his motion to dismiss Foster, thereby requiring him to proceed with counsel he did not want. The standard for determining the validity of a guilty plea is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970).[4] “A reviewing federal court may set aside a state court guilty plea only for failure to satisfy due process: ‘If a defendant understands the charges against him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea . . . will be upheld on federal review.'” Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir. 1991) (quoting Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980)).

         Although a defendant's statements during a plea colloquy are not insurmountable, “the representations of the defendant, his lawyer, and the prosecutor at [a plea hearing], as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). “ [W]hen a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).

         Walker's plea colloquy provides:

THE COURT: Okay. Mr. Walker, I need you to raise your right hand, sir. Do you swear or affirm to tell the truth, the whole truth and nothing but the truth?
THE DEFENDANT: Yes, Sir.
THE COURT: You need to answer out loud.
THE DEFENDANT: Yes, Sir.
THE COURT: And you are Romerio Walker?
THE DEFENDANT: Yes, Sir.
THE COURT: You can put your hand down. Mr. Walker, we are in case number CF05-9702 - - you are charged by the State with possession of cocaine with intent to sell, which is punishable by up to 15 years in state prison and possession of drug paraphernalia punishable by up to a year in the county jail.
The plea agreement indicates that you are entering a plea of no contest to those charges anticipating that I am going to sentence you to 8 years in Florida State Prison suspended upon your successful completion of 10 years of probation which will include some drug conditions.
The effect of this would be if you were to uh - - violate terms of your probation and a judge were to find that you had violated, willfully, materially, substantially - - those are the key - - willfully, materially, substantially violated terms of your probation - - you could be at that point be sentenced for the 8 years that I am suspending at this point. Is that your understanding?
THE DEFENDANT: Yes, Sir.
THE COURT: Has anybody made any other promises?
THE DEFENDANT: No, Sir.
THE COURT: Has anybody threatened, coerced or forced you to do this?
THE DEFENDANT: No, Sir. I have been told I would still have my right to appeal.
MR. FOSTER: Right. And Judge, we are - - THE COURT: Yes, you are going to retain - - MR. FOSTER: - - we are entering pleas of no contest for the record specifically reserving the right to appeal the previous denials of his motions to suppress and the renewed motion to suppress - - there have been I believe rulings in this matter, both [b]y Judge Alcott and by Judge Selph previously.
THE COURT: Correct. You are reserving those rights to appeal and that is what your understanding is, correct?
THE DEFENDANT: Yes. The issues - - THE COURT: Has anybody made any other promises?
THE DEFENDANT: No, Sir.
THE COURT: Anybody threatened, coerced or forced you to do this?
THE DEFENDANT: No, Sir.
THE COURT: Are you currently under the influence of any drug, alcohol, or medication - - anything affecting your ability to understand me?
THE DEFENDANT: No, Sir.
THE COURT: Now, how old are you?
THE DEFENDANT: Thirty-eight.
THE COURT: Thirty-eight. And how far did you go in school?
THE DEFENDANT: I have a GED and a couple of years of community college as a paralegal.
THE COURT: I figured that. You have been represented by an attorney - -several attorneys - - and I know that you have had some problems here and there - - but, at this point are you satisfied with the counsel that you have received and the work that has been done?
THE DEFENDANT: At this point, I am satisfied with the outcome of the case.
Yes, Sir.
THE COURT: Okay. Do you understand that by entering a plea at this point -- you are giving up your right to have a trial in front of a jury? It would be up to the state to bring in witnesses and prove what they have alleged against you beyond and to the exclusion of all reasonable doubt.
During the course of a trial, you have the right to be represented by a lawyer - - to have your lawyer cross examine - - that means to question any of the witnesses called in by the State and also subpoena and compel witnesses to come in for you. If you choose not to testify, a jury would be told that is your right, they can not use that against you.
On the other hand, if you choose to testify - - then the jury would be instructed to weigh and consider your testimony like they would anybody else's. Do you understand that those are the rights of a trial that you are giving up?
THE DEFENDANT: Yes, Sir.
THE COURT: You are also giving up - - no, you are retaining your right to appeal on these earlier issues and you - - if you can not afford an attorney, I would be appointing an attorney to represent you for that.
But, do you understand that if you were to violate the terms of your probation - - you could go to state prison. And if you were to go to state prison, before being released from any state prison facility, that they would investigate your background to determine if you have any sexually motivated crimes in your past.
If they were to locate a sexually motivated crime, they would further evaluate you under what is called the Jimmy Ryce Act to determine whether or not you should be determined a sexually violent predator. Do you understand that those are the various rights that you are giving up at this point and the sanction that could be imposed?
THE DEFENDANT: Yes, Sir.
THE COURT: Okay. And uh - - is anybody aware of any DNA that could exonerate?
MR. FOSTER: No, Sir.
[PROSECUTOR]: No, Your Honor.
THE COURT: And is there a factual basis to support the allegations?
MR. FOSTER: Yes, Sir. And I would stipulate to a factual basis. I believe that there is substantial record support in the various transcripts that are in the court file - - THE COURT: Okay.
MR. FOSTER: - - Judge, additionally, with regards to the reservation of appeal - - I believe that the State is stipulating that there is issues that would be dispositive of the ...

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