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Fisher v. Florida Attorney General

United States District Court, M.D. Florida, Fort Myers Division

August 31, 2017

LUKE FISHER, Petitioner,



         This matter comes before the Court on a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Luke Fisher (“Petitioner” or “Fisher”), a prisoner of the Florida Department of Corrections (Doc. 1, filed February 25, 2016). Fisher, proceeding pro se, attacks the convictions and sentences entered against him by the Twentieth Judicial Circuit Court in Charlotte County, Florida for trafficking in cocaine, possession of methamphetamine, possession of oxycodone, possession of MDMA, driving with a suspended license, carrying a concealed firearm, and possession of drug paraphernalia. Id. Respondent filed a response to the petition (Doc. 10). Fisher filed a reply (Doc. 13), and the matter is now ripe for review.

         Upon due consideration of the pleadings and the state court record, the Court concludes that each claim must be dismissed or denied. Because the petition is resolved on the record, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the factual allegations in the petition or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).

         I. Background[2]

         On April 8, 2008, the State of Florida charged Fisher by amended information with ten separate counts: possession of cocaine, in violation of Florida Statute § 893.13(6)(a) (count one); possession of a controlled substance with intent to sell or deliver, in violation of Florida Statute § 893.13(1)(1) (count two); trafficking in cocaine, in violation of Florida Statute § 893.135(1)(b)(count three); three counts of possession of a controlled substance, in violation of Florida Statute § 893.13(6)(a) (counts four through six); unlawful fleeing from a law enforcement officer, in violation of Florida Statute § 316.1935(3)(a) (count seven); driving with a suspended license; in violation of Florida Statute § 322.34(5) (count eight); carrying a concealed firearm, in violation of Florida Statute § 790.01(2) (count nine); and possession of paraphernalia, in violation of Florida Statute § 893.147 (count ten) (Vol. 1 at 14).

         Fisher faced up to ninety years in prison if convicted on all counts, but entered into a negotiated plea agreement in which he agreed to plead no contest to some of the counts in exchange for a prosecutor recommendation of forty-eight months in prison, followed by two years of supervised release (Vol. 1 at 62-63). At Fisher's November 4, 2008 plea colloquy, the trial court agreed to forego taking Fisher into immediate custody. Id. at 128. However, the court warned Fisher of the ramifications of violating the law during his furlough:

Here's the way I do that. Before I go through a plea colloquy with you, Mr. Fisher, I'll go along with what's been negotiated, but I will not impose sentence today. What I do rather than impose the sentence and give you a date to report, I defer sentencing, and I'll be really upfront and honest with you. I'm always upfront and honest, but I'm going to be really blunt. The reason why I do that is because if you pick up any new charges between now and your sentencing date, or if you fail to appear for sentencing, your plea would stand, but not the agreed upon sentence. Which means that I can give you a total of 10, 40, 50, 55 years in state prison. So it's an incentive for you not to break the law while you're pending sentencing.

Id. at 128-29. Fisher affirmed his understanding of the warning, and the trial court proceeded with the colloquy. Id. at 131-34. The court found Fisher competent to tender the plea, and it was accepted. Id. at 34. Sentencing was set for three weeks later. Id.

         Between his plea colloquy and his December 5, 2008 sentencing, Fisher was arrested for other drug-related crimes (S at 3). At defense counsel's (“Counsel's”) request, an evidentiary hearing was held to establish whether Fisher had violated the terms of his furlough. Id. at 5. Brad Combs, a detective with the Charlotte County Sheriff's Office, testified at the hearing. Id. at 8. Combs testified that Fisher sold Roxycodone pills to a confidential informant and undercover detective on November 6, 2008 and November 21, 2008. Id. at 8-10. A search warrant was executed at Fisher's residence where 620 Oxycodone pills, 17 grams of methamphetamine, and one gram of crack cocaine were located. Id. at 11. Fisher was apprehended, and he was found to be carrying a substantial amount of cash and a key to a bank deposit box. Id. The box was found to contain 1003 Roxycodone pills and $15, 000 in cash. Id. On cross-examination, Combs admitted that he was not physically present at the November 6, 2008 drug buy; rather, he listened to the transaction on a listening device in order to monitor the situation. Id. at 12. However, Combs clarified that he saw the search warrant executed and he saw the drugs in Fisher's house. Id. at 22. He also saw the search warrant executed on the bank deposit box and saw the money and drugs contained therein. Id.

         The trial court found that competent and substantial evidence showing that Fisher violated the plea agreement by committing additional crimes while on furlough (S. at 32). Fisher was sentenced to twenty years in prison on count three; concurrent five-year terms on counts four, five, six, eight, and nine; and to time served on count ten. Id. at 33-34.

         In his brief on direct appeal, Fisher argued that the trial court committed reversible error when it relied on hearsay evidence to void Fisher's sentencing agreement (Ex. 2). Instead of considering the merits of Fisher's claims, Florida's Second District Court of Appeal determined that Fisher had not preserved the claim for appellate review:

Fisher argues the trial court violated the terms of the plea agreement by relying on insufficient evidence to determine that he committed a new law violation and thereafter imposing a sentence greater than the sentence approved under the plea agreement. In support of his argument, Fisher relies on the evidentiary requirements set forth in Neeld [v. State, 977 So.2d 740, 745 (Fla. 2d DCA 2008)]. But in Neeld, this court, prior to addressing the merits of his appeal, noted Neeld had filed a motion to withdraw plea. 977 So.2d at 741. In contrast, for reasons that are unclear in our record on appeal, Fisher did not file a motion to withdraw his plea. Therefore, Fisher's contentions were not preserved under rule 9.140(b)(2)(A)(ii)(b), and we find his arguments concerning the sufficiency of the evidence relied upon by the trial court to be beyond our scope of appellate review. Accordingly, we affirm Fisher's judgments and sentences without prejudice to any right he may have to file a motion for postconviction relief.

(Ex. 5); Fisher v. State, 35 So.3d 2010 (Fla. 3d DCA 2010).

         Thereafter, Fisher filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850 motion”) in which he argued that Counsel had been constitutionally ineffective for not preserving his sentencing claim for appellate review by filing a motion to withdraw his plea (Ex. 8). Fisher also filed an amended Rule 3.850 motion (Ex. 9). The motions were struck by the post-conviction court on the ground that Fisher had not alleged prejudice from Counsel's failure to file a motion to withdraw plea-in other words, the post-conviction court noted that Fisher had not demonstrated that the state could not have presented “non-hearsay evidence demonstrating new law offenses between [Fisher's] plea and sentencing.” (Ex. 10 at 3).

         On March 20, 2012, Fisher filed another Rule 3.850 motion in which he raised three claims of ineffective assistance of counsel (Ex. 11). Two of the claims were denied on the merits, and an evidentiary hearing was ordered on Fisher's claim that Counsel had failed to advise him of a viable defense (Ex. 14). After holding an evidentiary hearing (Ex. 23), the remaining claim was also denied (Ex. 15). Florida's Second District Court of Appeal affirmed without a written opinion (Ex. 21); Fisher v. State, 185 So.3d 1242 (Fla. 2d DCA 2016).

         II. Legal Standards

         a. The Antiterrorism Effective Death Penalty Act (“AEDPA”)

         Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court 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.

28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S.Ct. 1697, 1702 (2014). Notably, a state court's violation of state law is not sufficient to show that a petitioner is in custody in violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).

         “Clearly established federal law” consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S.Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). That said, the Supreme Court has also explained that “the lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since ‘a general standard' from [the Supreme Court's] cases can supply such law.” Marshall v. Rodgers, 133 S.Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). State courts “must reasonably apply the rules ‘squarely established' by [the Supreme] Court's holdings to the facts of each case.” White, 134 S.Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).

         Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was “contrary to, or an unreasonable application of, ” that federal law. 29 U.S.C. § 2254(d)(1). A decision is “contrary to” clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

         A state court decision involves an “unreasonable application” of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The petitioner must show that the state court's ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). Moreover, “it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Knowles, 556 U.S. at 122.

         Notably, even when the opinion of a lower state post-conviction court contains flawed reasoning, the federal court must give the last state court to adjudicate the prisoner's claim on the merits “the benefit of the doubt.” Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert. granted Wilson v. Sellers, 137 S.Ct. 1203 (Feb. 27, 2017). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Therefore, to determine which theories could have supported the state appellate court's decision, the federal habeas court may look to a state post-conviction court's previous opinion as one example of a reasonable application of law or determination of fact; however, the federal court is not limited to assessing the reasoning of the lower court. Wilson, 834 F.3d at 1239.

         Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind that any “determination of a factual issue made by a State court shall be presumed to be correct[, ]” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding”) (dictum); Burt v. Titlow, 134 S.Ct. 10, 15-16 (2013) (same).

         b. Ineffective Assistance of Counsel

         In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel's performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a “doubly deferential” standard of review that gives both the state court and the petitioner's attorney the benefit of the doubt. Burt, 134 S.Ct. at 13 (citing Cullen v. Pinholster, 563 U.S. 170 (2011)).

         The focus of inquiry under Strickland's performance prong is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688-89. In reviewing counsel's performance, a court must adhere to a strong presumption that “counsel's conduct falls within the wide range of reasonable professional assistance[.]” Id. at 689. Indeed, the petitioner bears the heavy burden to “prove, by a preponderance of the evidence, that counsel's performance was unreasonable[.]” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must “judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct, ” applying a “highly deferential” level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).

         As to the prejudice prong of the Strickland standard, Petitioner's burden to demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice “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. In the context of a guilty plea, the Court must focus on whether counsel's constitutionally ineffective 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).

         c. Exhaustion and ...

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