United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS United States District Judge.
Denis Andre Parent challenges a 2013 (Columbia County)
conviction for lewd or lascivious molestation of a child
(violation of probation). 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 October
20, 2014, pursuant to the mailbox rule. He raises three
grounds in the Petition. Respondents filed an Answer in
Response to Order to Show Cause (Response) (Doc. 26). In
support of the Response, they attach an Appendix (Doc.
Petitioner filed a Rebuttal to State's Answer on Order to
Show Cause (Reply) (Doc. 27). See Order (Doc. 11).
He also filed a Notice of the Court (Doc. 34), attaching a
response from the Florida Bar dated June 3, 2016, stating
that the Bar's records show that James V. Modica is an
active member in good standing with the Florida Bar and is up
to date with his CLE requirements. (Doc. 34-1).
adequately address Petitioner's claims, the Court will
provide a brief procedural history. Petitioner was charged by
information with sexual battery upon a child under twelve
years of age. Ex. A. He entered a plea agreement to a lesser
offense of lewd or lascivious molestation of a child, and was
sentenced to probation for fifteen years. Ex. B; Ex. C.
Petitioner violated his terms of probation, Ex. D, and on
October 6, 2004, the court sentenced him to two years
community control with credit for time served on community
control and to continued probation. Ex. E. Petitioner
violated his terms of community control. Ex. F, and on March
8, 2005, the court sentenced him to twenty-one days in the
county jail and reimposed probation. Ex. G. Once again, on
February 1, 2013, a Correctional Probation Specialist filed
an Affidavit [of] Violation of Probation. Ex. H. This time,
it charged Petitioner with:
viewing, accessing, owning, or possessing any obscene,
pornographic, or sexually stimulating visual or auditory
material, including telephone, electronic media, computer
programs, or computer services that are relevant to the
offender's deviant behavior pattern, unless otherwise
indicated in the treatment plan provided by the sexual
offender treatment program, and as grounds for belief that
the offender violated her [sic] probation, Officer Wanda G.
Ashley states that on February 1, 2013 the offender was found
to be viewing child porn, as told to this officer by
pictures/images on the subject's cell phone on February
31, 2013, during a change of plea hearing/disposition,
Plaintiff admitted to the violation of probation. Ex. I at 5.
After a full plea colloquy and the reading of the plea
agreement, the trial court found Petitioner freely,
knowingly, and voluntarily entered the plea with the advice
of counsel. Id. at 11. Petitioner expressed complete
satisfaction with counsel, acknowledging that the ten-year
deal was "good." Id. at 11-12. The court
revoked his probation and sentenced Petitioner to ten years
in prison, followed by ten years probation, as set forth in
the plea agreement. Id. at 9, 12. The court advised
that Petitioner had thirty days to appeal his sentence.
Id. at 15. On July 31, 2013, the court entered a
Probation Violator judgment and sentence. Ex. J.
sent letters to the court asking to change his plea. Ex. K.
The court, construing the letters as a motion, denied the
motion to withdraw the plea. Ex L. Finding no lack of subject
matter jurisdiction, no violation of the plea agreement,
sentencing error, or any other basis for relief under Florida
law, the court rejected his motion. Id.
Additionally, the court found that any claim of an
involuntary plea is refuted by the record. Id.
filed a Rule 3.850 motion for post conviction relief. Ex. M.
He claimed newly discovered evidence and ineffective
assistance of counsel. Id. at 5. He said that the
day after his plea, a person who used his phone was willing
to admit that he used the phone on the date at issue.
Id. Petitioner claimed his counsel never informed
him "on how to withdraw my plea or what grounds were
needed[.]" Id. The circuit court, on October
10, 2013, dismissed the motion as being insufficient on its
face, without prejudice to Petitioner filing an amended
motion. Ex. N. With respect to the first ground, the newly
discovered evidence claim, the court noted its insufficiency
because Petitioner failed to attach an affidavit from a
person whose testimony is necessary to factually support the
claim, or an explanation why the affidavit could not be
obtained. Id. With regard to both grounds, the court
found the motion to be conclusory, lacking specific facts to
support the claims. Id.
Petitioner moved to withdraw his plea. Ex. O. He renewed his
claims of newly discovered evidence and ineffective
assistance of counsel. Id. The circuit court denied
the motion, construed to be an untimely motion pursuant to
Rule 3.170(1), Fla. R. Crim. P., or alternatively, an
insufficient Rule 3.850 motion. Ex. P. The court noted
Petitioner's failure to attach an affidavit and the
motion's insufficiency. Id.
sought an extension of time to file a Rule 3.800(c) motion.
Ex. Q. He then filed a motion to reduce his sentence pursuant
to Rule 3.800(c). Ex. R. The court denied both, finding them
untimely and without merit. Ex. S. Pointedly, the court noted
that the sentence was imposed pursuant to a negotiated plea
agreement, and as the plea agreement is a contract,
Petitioner "cannot change the terms of that contract by
filing a rule 3.800(c) motion." Id. (citation
April 2, 2014, Petitioner filed another Rule 3.850 motion.
Ex. T. Petitioner claimed the ineffective assistance of
counsel for failure to investigate and newly discovered
evidence. Id. at 5. Petitioner asserts that his
failure to present an affidavit or provide reason for not
submitting an affidavit with his prior Rule 3.850 motion was
the result of counsel's failure to inform him that it was
necessary to support his motion. Id. The circuit
court found the motion to be successive, concluding that the
court already ruled upon an amended motion. Ex. U. As such,
the court denied the post conviction motion with prejudice.
STANDARD OF REVIEW
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, 137 S.Ct. 1432 (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. Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir.
..."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
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th
Cir. 2013), cert. denied, 135 S.Ct. 67
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). 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)).
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.
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 ...