United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE DISTRICT JUDGE.
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.
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).
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).
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.
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.
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
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
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).
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).
The Antiterrorism Effective Death Penalty Act
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;
(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).
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)).
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).
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.
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
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).
Ineffective Assistance of Counsel
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)).
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).
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).
Exhaustion and ...