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Sercey v. Secretary, DOC

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

May 31, 2017

DWAYNE SERCEY, Petitioner,
v.
SECRETARY, DOC, et al., Respondents.

          ORDER

          BRIAN J. DAVIS United States District Judge

         I. STATUS

         Petitioner challenges 2011 (Columbia County) convictions for grand theft auto and burglary of a structure (state case no. 02-540), and escape and grand theft auto (state case no. 03-203). Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1) at 1. He filed the Petition on December 7, 2014, pursuant to the mailbox rule.[1] He raises two grounds in the Petition. Respondents filed an Answer to Petition for Writ of Habeas Corpus (Response) (Doc. 14), and they calculate that the Petition is timely filed. Id. at 9. In support of the Response, they rely on Exhibits to Answer to Petition for Writ of Habeas Corpus (Doc. 14).[2] Petitioner filed a Notice that Petitioner Will Not File a Reply (Doc. 17). See Order (Doc. 8).

         II. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state prisoner's federal petition for habeas corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 2017 WL 1199485 (U.S. Apr. 3, 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, 132 S.Ct. 38, 43 (2011)).

Under AEDPA, when a state court has adjudicated the petitioner's claim on the merits, a federal court may not grant habeas relief unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " id. § 2254(d)(2). A state court's factual findings are presumed correct unless rebutted by clear and convincing evidence.[3] Id. § 2254(e)(1); Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir. 2011).
..."It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." [Harrington v. Richter, 562 U.S. 86, 101 (2011)] (citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). The Supreme Court has repeatedly instructed lower federal courts that an unreasonable application of law requires more than mere error or even clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer, 538 U.S. at 75 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."); Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("[A]n unreasonable application of federal law is different from an incorrect application of federal law.").

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013), cert. denied, 135 S.Ct. 67 (2014).

         In applying AEDPA deference, the first step is to identify the last state court decision that evaluated the claim on its merits. Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016).[4] Regardless of whether the last state court provided 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); see also Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

         Where the last adjudication on the merits is unaccompanied by an explanation, the petitioner must demonstrate there was no reasonable basis for the state court to deny relief. Id. at 98. "[A] habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the] Court." Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.

         Although the § 2254(d) standard is difficult to meet, it was meant to be difficult. Indeed, in order to obtain habeas relief, "a state prisoner must show that the state court's ruling on the claim being presented . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.

         III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         A. Ground One

         In his first ground, Petitioner claims his counsel gave him erroneous advice, promising Petitioner that he would receive no longer that 36 months if Petitioner proceeded to his violation of probation hearing. Petition at 5. Petitioner asserts that he would have accepted the state's offer of five years but for the erroneous advice of counsel. Id.

         In order to prevail on this Sixth Amendment claim of ineffective assistance of trial counsel, Petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984), requiring that he show both deficient performance (counsel's representation fell below an objective standard of reasonableness) and prejudice (there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different).

         Petitioner exhausted this ground by raising it in his Rule 3.850 motion. Ex. 13. The trial court denied relief, Ex. 14, and the First District Court of Appeal (1st DCA) per curiam affirmed. Ex. 18. See Response at 20.

         In the state court, Petitioner not only claimed that his counsel gave him erroneous advice, Petitioner also claimed that his counsel failed to convey the actual plea offer. Ex. 13 at 3-4. Petitioner said that his counsel withheld the plea offer and guaranteed a 36-month sentence from the violation of probation proceeding. Id. at 4.

         Upon review, the circuit court first set forth the applicable two-pronged Strickland standard as a preface to addressing the claims of ineffective assistance of counsel. Ex. 14 at 10. In addressing the claim of ineffective assistance of counsel, the circuit court found Petitioner's post conviction claim refuted by the record, referencing the transcript of the violation of probation hearing conducted on September 21, 2011. Id.

         The transcript of the hearing shows the following. At the beginning of the proceeding, defense counsel, Travis Koon, asked the prosecutor, Jonah Farr, to state the maximum sentence that Petitioner "could possibly receive today[.]" Ex. 3 at 3. Mr. Farr responded by stating that the maximum "is 40 years in DOC because he has HFO on each case, 30 on the escape and 10 on the grand theft." Id. Mr. Farr also provided the scoresheet and referenced the plea offer. Id. Mr. Koon explained that he not only had gone over the ...


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