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Boyers v. Secretary, Department of Corrections

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

June 9, 2017

LARRY BOYERS, Petitioner,


          Charlene Edwards Honeywell United States District Judge.

         Larry Boyers (“Boyers”), a counseled Florida prisoner, filed a petition for writ of habeas corpus under 28 U.S.C. Section 2254 (Doc. 1) and supporting memorandum of law. (Doc. 2) Boyers challenges his conviction for attempted second degree murder of a law enforcement officer with a firearm, which was entered by the Circuit Court for the Twelfth Judicial Circuit for Manatee County, Florida. The Respondent filed a response and supporting exhibits. (Docs. 6, 8) Boyers' counsel filed a reply. (Doc. 10) The Respondent admits the petition is timely. (Doc. 6 at 10) Upon review, Boyers' petition must be denied.

         I. BACKGROUND[1]

         On January 17, 2007, deputies were dispatched to Boyers' residence in response to a call of a suicidal man with a gun. Deputy Robinson arrived and spoke with a woman who was sitting at a table outside the residence. As the deputy was speaking with a man who had called 911, the woman started causing a disturbance, banging on the carport door and yelling. Deputy Robinson attempted to get her to move out of harm's way. Another woman exited the front door and advised that there was a man inside with a lot of guns and that her child was inside. Deputy Robinson and Detective Deluca heard a shotgun being racked, and seconds later, a shotgun blast. Deputy Robinson saw a white flash and felt the heat of the blast and the hair move on his head. Seconds later, another shot was fired, after which the deputy took cover.

         SWAT teams responded and extracted a baby from a back bedroom. Negotiators were in contact with Boyers for approximately three hours. He told them that he had many guns and that the deputies were going to have to kill him. Boyers repeatedly told negotiators that he was crazy and drunk, and that he wanted to shoot himself and die. He stated numerous times that he was going to shoot at and kill the deputies. He also said that he did not want to kill or hurt anyone. Eventually, Boyers exited the residence and was taken into custody. A shotgun, SKS rifle, magazine, live round, five shell casings, two rifles, and a pistol were recovered from the scene.


         Boyers was charged with attempted murder in the second degree of a law enforcement officer with a firearm. Prior to his jury trial, Boyers rejected the State's offer for him to enter a plea to the offense of aggravated assault on a law enforcement officer in return for a 10-year sentence. At trial, Boyers presented an insanity defense. The defense relied on Dr. Eddy Regnier, who testified that Boyers was insane at the time of the event. The State relied on Dr. James McGovern, who testified that Boyers was legally sane at the time. Boyers was found guilty as charged and sentenced to a mandatory minimum prison term of 20 years. (Ex. 5)[2] The Florida appellate court per curiam affirmed without a written opinion. Boyers v. State, 18 So.3d 1043 (Fla. 2d DCA 2009) [table].

         In a pro se amended postconviction motion filed pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, Boyers raised claims of ineffective assistance of counsel, which were summarily denied. (Exs. 10, 11) The Florida appellate court reversed and remanded for the trial court to allow Boyers to amend his Rule 3.850 motion with respect to one ground for relief. The summary denial of his other grounds was affirmed without elaboration. The state court's opinion provides:

reverse the order to the extent that it denied the claim raised in ground one wherein Mr. Boyers alleged that counsel was ineffective for advising him to reject a favorable plea offer. We affirm the order without comment to the extent that it denied the remaining claims alleged in the motion. Mr. Boyers was convicted after jury trial of attempted second-degree murder of a law enforcement officer with a firearm and was sentenced to a twenty-year mandatory minimum prison sentence under section 775.087(2)(a)(2), Florida Statutes (2006). The transcript of a pretrial hearing that was attached to the postconviction court's order establishes that the State offered to allow Mr. Boyers to plead to the lesser-included offense of aggravated assault on a law enforcement officer with the stipulation that he be sentenced to a ten-year mandatory minimum prison term under section 775.087(2)(a)(1). The trial court advised Mr. Boyers that it was his last opportunity to accept the State's offer. Mr. Boyers alleged that he rejected the plea based on counsel's assurance that if he proceeded to trial, Mr. Boyers would ultimately obtain a lesser sentence than the ten-year mandatory minimum prison sentence offered by the State, but that he in fact received a greater sentence following his conviction at trial. Mr. Boyers alleged further that but for counsel's deficient performance, he would have accepted the plea offer. [FN1]
An allegation that counsel was ineffective in advising a defendant to reject a plea offer premised on assurances that a trial would produce a more favorable result can be the basis of a cognizable rule 3.850 claim where the result is ultimately less favorable and the defendant alleges that he would have accepted the plea had he been properly advised. Morgan v. State, 991 So.2d 835, 841 (Fla. 2008); Wright v. State, --- So.3d ---- (Fla. 2d DCA 2012). However, Mr. Boyers' claim is facially insufficient because he failed to allege a specific deficiency on the part of counsel, such as an assertion that counsel's assessment of the chances of success at trial was unreasonable under the facts and circumstances of the case or that counsel had not investigated or was otherwise unfamiliar with the case. [FN2] See Morgan, 991 So.2d at 841; Wright, --- So.3d ----. Because Mr. Boyers presented a cognizable but facially insufficient claim of ineffective assistance of counsel based on counsel's advice to reject a plea offer, we reverse the postconviction court's order to the extent that it denied the claim presented in ground one of the motion. On remand, the postconviction court shall strike this claim with leave to amend to file a facially sufficient claim within a reasonable time. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007). In all other respects, we affirm the postconviction court's order.
Affirmed in part, reversed in part, and remanded.
[FN] 1 Mr. Boyers' allegation that counsel failed to advise him that, as part of the plea negotiations, the charged offense would be reduced to aggravated assault of a law enforcement officer is conclusively refuted by the transcript of the pretrial hearing. Furthermore, Mr. Boyers' allegation that the psychotropic medications he was taking reduced his ability to make an informed choice regarding the plea offer which he rejected is not a cognizable rule 3.850 claim.
[FN] 2 To state a facially sufficient claim, such an assertion must be factually specific, and a conclusory allegation that counsel's assessment of the chances of success at trial was unreasonable or that counsel failed to properly investigate would not suffice.

Boyers v. State, 104 So.3d 1230, 1231-32 (Fla. 2d DCA 2012).

         Boyers filed a counseled second amended Rule 3.850 motion in which he amended his first ground for relief. (Ex. 16) After an evidentiary hearing, the state court denied relief. (Exs. 17, 18) The state appellate court per curiam affirmed without written decision. Boyers v. State, 158 So.3d 573 (Fla. 2d DCA 2014) [table].



         The Antiterrorism and Effective Death Penalty Act of 1996 (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). Section 2254(d), which creates 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:

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 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 v. Taylor, 529 U.S. at 412. “The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). 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 we are to decide.”). “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).

         The purpose of federal review is not to re-try the state 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.” Bell v. Cone, 535 U.S. at 693. Federal courts must afford due deference to a state court's decision. “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).

         Boyers claims that his trial counsel rendered ineffective assistance by failing to advise him reasonably as to the State's plea offer. Before applying AEDPA deference, the federal habeas court must first identify the last state court decision that evaluated the claim on the merits. Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc), cert. granted, Wilson v. Sellers, No. 16-6855, --- S.Ct. ----, 2017 WL 737820 (Feb. 27, 2017). The Florida appellate court per curiam affirmed the denial of Boyers' ground after an evidentiary hearing. Consistent with the principles set forth above, the state court decision on review in this proceeding is the Florida appellate court's silent decision, which warrants deference under Section 2254(d)(1).

         The Eleventh Circuit has held that where the last adjudication on the merits is “‘unaccompanied by an explanation, ' a petitioner's burden under section 2254(d) is to ‘show[ ] there was no reasonable basis for the state court to deny relief.'” Wilson, 834 F.3d at 1235 (quoting Richter, 562 U.S. at 98). A habeas court must determine what arguments or theories supported or 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; see also Wilson, 834 F.3d at 1235. The Eleventh Circuit in Wilson held that to determine which theories could have supported the state appellate court's decision, the federal habeas court may look to a previous opinion as one example of a reasonable application of law or determination of fact; however, the federal habeas court is not limited to assessing the reasoning of the lower court. Wilson, 834 F.3d at 1239. Even when the opinion of a lower state court contains flawed reasoning, AEDPA requires that the federal court give the last state court to adjudicate the prisoner's claim on the merits “the benefit of the doubt, ” Wilson, 834 F.3d at 1238 (quoting Renico v. Lett, 449 U.S. at 733), and presume that it “follow[ed] the law, ” Wilson, 834 F.3d at 1238 (quoting Woods v. Donald, 135 U.S. 1372, 1376 (2015)).

         In this case, the Court's review is governed by Wilson. It does not matter, however, to the result here if review under Section 2254(d) is focused on the reasoning of the state trial court. See Butts v. GDCP Warden, 850 F.3d 1201, 1204 (11th Cir. 2017) (“Because it does not matter to the result, and to avoid any further complications if the United States Supreme Court disagrees with our Wilson decision, we have decided this appeal on the same basis that the district court did: by using the more state-trial-court focused approach in applying § 2254(d).”).

         Review under Section 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster, 563 U.S. at 181. The Court must presume the state court's factual determinations are correct, unless the petitioner rebuts that presumption with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Jones v. Sec'y, Florida Dep't of Corr., 834 F.3d 1299, 1311 (11th Cir. 2016). “When considering a determination of a mixed question of law and fact, such as a claim of ineffective assistance of counsel, the statutory presumption of correctness applies to only the underlying factual determinations.” Daniel v. Comm'r, Ala. Dep't of Corr., 822 F.3d 1248, 1259 (11th Cir. 2016) (quoting Tanzi v. Sec'y, Fla. Dep't of Corr., 772 F.3d 644, 651 (11th Cir. 2014)). Section 2254(d)(2), like Section 2254(d)(1), requires that a federal court afford substantial deference to a state court's factual determinations. If “[r]easonable minds reviewing the record might disagree about” the state court factfinding in question, “on habeas review that does not suffice to supersede” the state court's factual determination. Daniel, 822 F.3d at 1259 (11th Cir. 2016) (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006).


         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. The Sixth Amendment right to effective assistance of counsel extends to the plea bargaining process. Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 1384 (2012). To establish a claim for ineffective assistance, the petitioner must demonstrate both prongs of the test established by Strickland v. Washington, 466 U.S. 668 (2012). The performance prong of Strickland requires the petitioner show that counsel's representation during the plea bargaining process fell below an objective standard of reasonableness. Lafler, 132 S.Ct. at 1384. In considering a claim of ineffective assistance, a court “must take care to ...

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