United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge.
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.
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
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.
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.
The Florida appellate court per curiam affirmed
without a written opinion. Boyers v. State, 18 So.3d
1043 (Fla. 2d DCA 2009) [table].
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
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].
GOVERNING LEGAL PRINCIPLES
STANDARD OF REVIEW
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;
(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
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).
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).
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).
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)).
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 §
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).
INEFFECTIVE ASSISTANCE OF COUNSEL
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 ...