United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE
Valentino Bernard Lee, an inmate of the Florida penal system,
initiated this action on January 29, 2015, pursuant to the
mailbox rule, by filing a pro se Petition for Writ of Habeas
Corpus (Petition; Doc. 1) under 28 U.S.C. § 2254. In the
Petition, Lee challenges a 2011 state court (Duval County,
Florida) judgment of conviction for burglary with assault or
battery, possession of a firearm by a convicted felon, and
aggravated assault. Respondents have submitted a memorandum
in opposition to the Petition. See Respondents'
Answer to Petition for Writ of Habeas Corpus (Response; Doc.
10) with exhibits (Resp. Ex.). On February 6, 2015, the Court
entered an Order to Show Cause and Notice to Petitioner (Doc.
5), admonishing Lee regarding his obligations and giving Lee
a time frame in which to submit a reply. Lee submitted briefs
in reply. See Petitioner's Answer (Doc. 14);
Amended Answer (Doc. 15). This case is ripe for review.
9, 2010, the State of Florida charged Lee with burglary with
assault or battery (count one), possession of a firearm by a
convicted felon (count two), and aggravated assault (count
three). See Resp. Ex. 2, Information. Lee entered a
guilty plea to the charges on April 27, 2011. See
Resp. Exs. 4; 5, Transcript of the Plea Proceeding (Plea
Tr.). In handwritten letters addressed to the trial court,
see Resp. Exs. 6; 8A; 8B, Lee expressed his desire
to withdraw his plea and obtain additional discovery. With
the benefit of conflict counsel, Lee filed a motion to
withdraw his guilty plea pursuant to Florida Rule of Criminal
Procedure 3.170(f) on June 27, 2011. See Resp. Ex.
7. The court held an evidentiary hearing on August 3, 2011,
see Resp. Ex. 9, Transcript of the Evidentiary
Hearing (EH Tr.), and on August 11, 2011, denied the motions
to withdraw the plea, see Resp. Ex. 11. Lee
submitted another handwritten letter to the court on August
29, 2011. See Resp. Ex. 12. On August 30, 2011, the
court sentenced Lee to a term of imprisonment of twenty-five
years for count one, a term of imprisonment of twenty-five
years for count two, and a term of imprisonment of ten years
for count three, to run concurrently with each other.
See Resp. Exs. 13, Transcript of the Sentencing
Hearing (Sentencing Tr.) at 12; 15, Judgment.
direct appeal, Lee, with the benefit of counsel, filed an
initial brief, arguing that the trial judge abused her
discretion when she denied Lee's motions to withdraw his
plea. See Resp. Ex. 17. The State filed an answer
brief. See Resp. Ex. 18. On August 20, 2012, the
appellate court affirmed Lee's conviction and sentence
per curiam, see Lee v. State, 95 So.3d 218 (Fla. 1st
DCA 2012); Resp. Ex. 19, and later denied Lee's motion
for rehearing, see Resp. Ex. 21. The mandate issued
on September 6, 2012. See Resp. Ex. 19.
filed pro se motions for post-conviction relief pursuant to
Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motions)
on November 30, 2012, see Resp. Ex. 22, March 1,
2013, see Resp. Ex. 23, and August 1, 2013,
see Resp. Ex. 24. In his Rule 3.850 motions, he
asserted that counsel (Scott D. Leemis) was ineffective
because he failed to: interview and depose Gussie Lee, a key
exculpatory witness (ground one); retrieve and investigate
the victim's phone records (ground three), and cell phone
messages that the victim left on Lee's cell phone (ground
two); file a motion to dismiss and motion to conduct an
adversary preliminary hearing (ground four); and conduct a
reasonable pretrial investigation (ground five). He also
stated that the court promised to sentence him to no more
than ten years of imprisonment for both cases (the instant
case, 2010-CF-3684, and his other case,
2010-CF-739). On December 16, 2013, the court denied his
Rule 3.850 motions. See Resp. Ex. 25. On appeal, Lee
filed a pro se initial brief, see Resp. Ex. 27, and
the State filed its notice that it did not intend to file an
answer brief, see Resp. Ex. 28. On May 23, 2014, the
appellate court affirmed the court's denial of
post-conviction relief per curiam, see Lee v. State,
141 So.3d 185 (Fla. 1st DCA 2014); Resp. Ex. 29, and later
denied Lee's motion for rehearing, see Resp. Ex.
30. The mandate issued on July 23, 2014. See Resp.
the pendency of the post-conviction proceedings, Lee filed a
pro se petition for writ of habeas corpus on May 10, 2013.
See Resp. Ex. 31. In the petition, Lee asserted that
the State failed to establish probable cause for his arrest
and committed manifest error because the State failed to file
an information within twenty-one days of his arrest; he
stated that the trial court erred when it failed to release
him on his own recognizance. Additionally, he asserted that
his plea was not voluntary. The circuit court denied the
petition on January 16, 2014. See Resp. Ex. 32. On
appeal, Lee filed a pro se initial brief, see Resp.
Ex. 34, and the State filed its notice that it did not intend
to file an answer brief, see Resp. Ex. 35. On May 1,
2014, the appellate court affirmed the court's denial of
post-conviction relief per curiam, see Lee v. State,
139 So.3d 304 (Fla. 1st DCA 2014); Resp. Ex. 36, and later
denied Lee's motion for rehearing, see Resp. Ex.
37. The mandate issued on June 25, 2014. See Resp.
Ex. 36. On August 13, 2014, Lee filed a pro se notice to
invoke discretionary jurisdiction. See Resp. Ex. 38.
The Florida Supreme Court dismissed the petition for lack of
jurisdiction on August 26, 2014. See Resp. Ex. 39.
One-Year Limitations Period
Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).
habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See
Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). "In deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007);
Jones v. Sec'y, Fla. Dep't of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2245 (2017). "It follows that
if the record refutes the applicant's factual allegations
or otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing."
Schriro, 550 U.S. at 474. The pertinent facts of
this case are fully developed in the record before the Court.
Because this Court can "adequately assess [Lee's]
claim[s] without further factual development, "
Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003), an evidentiary hearing will not be conducted.
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 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, 565 U.S. 34, 38 (2011)
(quotation marks omitted)). As such, federal habeas review of
final state court decisions is "'greatly
circumscribed' and 'highly deferential.'"
Id. (quoting Hill v. Humphrey, 662 F.3d
1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim
on the merits. See Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc),
cert. granted, 137 S.Ct. 1203 (2017);
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) (citation omitted);
see also Johnson v. Williams, 568 U.S. 289, 301
(2013). Thus, the state court need not issue an
opinion explaining its rationale in order for the state
court's decision to qualify as an adjudication on the
merits. See Richter, 562 U.S. at 100.
claim was "adjudicated on the merits" in state
court, § 2254(d) bars relitigation of the claim unless
the state court's decision (1) "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) "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); Richter, 562 U.S. at 97-98. As the Eleventh
Circuit has explained:
First, § 2254(d)(1) provides for federal review for
claims of state courts' erroneous legal conclusions. As
explained by the Supreme Court in Williams v.
Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000), § 2254(d)(1) consists of two distinct clauses: a
"contrary to" clause and an "unreasonable
application" clause. The "contrary to" clause
allows for relief only "if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on
a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of
materially indistinguishable facts." Id. at
413, 120 S.Ct. at 1523 (plurality opinion). The
"unreasonable application" clause allows for relief
only "if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case." Id.
Second, § 2254(d)(2) provides for federal review for
claims of state courts' erroneous factual determinations.
Section 2254(d)(2) allows federal courts to grant relief only
if the state court's denial of the petitioner's claim
"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)(2). The Supreme
Court has not yet defined § 2254(d)(2)'s
"precise relationship" to § 2254(e)(1), which
imposes a burden on the petitioner to rebut the state
court's factual findings "by clear and convincing
evidence." See Burt v. Titlow, 571 U.S. ___,
___, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. ___, ___, 135 S.Ct. 2269,
2282, 192 L.Ed.2d 356 (2015). Whatever that "precise
relationship" may be, "'a state-court factual
determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the
first instance.'" Titlow, 571 U.S. at ___, 134
S.Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,
301, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir.
2016), cert. denied, 137 S.Ct. 2298 (2017);
see also Daniel v. Comm'r, Ala. Dep't of
Corr., 822 F.3d 1248, 1259 (11th Cir. 2016). Also,
deferential review under § 2254(d) generally is limited
to the record that was before the state court that
adjudicated the claim on the merits. See Cullen v.
Pinholster, 563 U.S. 170, 182 (2011) (stating the
language in § 2254(d)(1)'s "requires an
examination of the state-court decision at the time it was
made"); Landers v. Warden, Att'y Gen. of
Ala., 776 F.3d 1288, 1295 (11th Cir. 2015) (regarding
the state court's 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). Thus, "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; see also Wilson, 834 F.3d at 1235. To
determine which theories could have supported the state
appellate court's decision, the federal habeas court may
look to a state trial court's previous opinion as one
example of a reasonable application of law or determination
of fact. Wilson, 834 F.3d at 1239; see Butts v.
GDCP Warden, 850 F.3d 1201, 1204 (11th Cir. 2017),
petition for cert. filed, No. 17-512 (Sept.
29, 2017). However, in Wilson, the en banc
Eleventh Circuit stated that the federal habeas court is not
limited to assessing the reasoning of the lower court. 834
F.3d at 1239. As such,
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, "
Renico,  559 U.S. at 773, 130 S.Ct. 1855 (quoting
Visciotti,  537 U.S. at 24, 123 S.Ct. 357), and
presume that it "follow[ed] the law, "
Donald,  135 S.Ct. at 1376 (quoting
Visciotti, 537 U.S. at 24, 123 S.Ct. 357).
Id. at 1238.
"AEDPA erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in
state court." Burt v. Titlow, 134 S.Ct. 10, 16
(2013). "Federal courts may grant habeas relief only
when a state court blundered in a manner so 'well
understood and comprehended in existing law' and 'was
so lacking in justification' that 'there is no
possibility fairminded jurists could disagree.'"
Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102-03). "This standard is 'meant to
be' a difficult one to meet." Rimmer v.
Sec'y, Fla. Dep't of Corr., 876 F.3d 1039. 1053
(11th Cir. 2017) (quoting Richter, 562 U.S. at 102).
Thus, to the extent that Lee's claims were adjudicated on
the merits in the state courts, they must be evaluated under
28 U.S.C. § 2254(d).
Ineffective Assistance of Counsel
Sixth Amendment guarantees criminal defendants the effective
assistance of counsel. That right is denied when a defense
attorney's performance falls below an objective standard
of reasonableness and thereby prejudices the defense."
Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per
curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521
(2003), and Strickland v. Washington, 466 U.S. 668,
To establish deficient performance, a person challenging a
conviction must show that "counsel's representation
fell below an objective standard of reasonableness."
[Strickland, ] 466 U.S. at 688, 104 S.Ct. 2052. A
court considering a claim of ineffective assistance must
apply a "strong presumption" that counsel's
representation was within the "wide range" of
reasonable professional assistance. Id., at 689, 104
S.Ct. 2052. The challenger's burden is to show "that
counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant
by the Sixth Amendment." Id., at 687, 104 S.Ct.
With respect to prejudice, a challenger must demonstrate
"a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id., at 694, 104 S.Ct. 2052. It is not enough
"to show that the errors had some conceivable effect on
the outcome of the proceeding." Id., at 693,
104 S.Ct. 2052. Counsel's errors must be "so serious
as to deprive the defendant of a fair trial, a trial whose
result is reliable." Id., at 687, 104 S.Ct.
Richter, 562 U.S. at 104. The Eleventh Circuit has
recognized "the absence of any iron-clad rule requiring
a court to tackle one prong of the Strickland test
before the other." Ward v. Hall, 592 F.3d 1144,
1163 (11th Cir. 2010). Since both prongs of the two-part
Strickland test must be satisfied to show a Sixth
Amendment violation, "a court need not address the
performance prong if the petitioner cannot meet the prejudice
prong, and vice-versa." Id. (citing
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.
2000)). As stated in Strickland: "If it is
easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often
be so, that course should be followed."
Strickland, 466 U.S. at 697.
court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he standard for judging counsel's representation
is a most deferential one." Richter, ___ U.S.
at ___, 131 S.Ct. at 788. But "[e]stablishing that a
state court's application of Strickland was
unreasonable under § 2254(d) is all the more difficult.
The standards created by Strickland and §
2254(d) are both highly deferential, and when the two apply
in tandem, review is doubly so." Id. (citations
and quotation marks omitted). "The question is not
whether a federal court believes the state court's
determination under the Strickland standard was
incorrect but whether that determination was unreasonable -a
substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 1420, 173
L.Ed.2d 251 (2009) (quotation marks omitted). If there is
"any reasonable argument that counsel satisfied
Strickland's deferential standard, " then a
federal court may not disturb a state-court decision denying
the claim. Richter, ___ U.S. at ___, 131 S.Ct. at
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th
Cir. 2014), cert. denied, 135 S.Ct. 2126
(2015); Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). "In addition to the deference to counsel's
performance mandated by Strickland, the AEDPA adds
another layer of deference--this one to a state court's
decision--when we are considering whether to grant federal
habeas relief from a state court's decision."
Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
2004). As such, "[s]urmounting Strickland's
high bar is never an easy task." Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
Findings of Fact and Conclusions of Law
ground one, Lee asserts that he involuntarily and
unintelligently entered a guilty plea. See
Petition at 5. He states:
On April 27, 2011, Petitioner pleaded guilty to all counts.
At the time of entering his pleas, Petitioner had not been
permitted to review discovery materials, had not had time to
fully consult with counsel, and was relying on defense
counsel's representations in deciding to enter his pleas.
As such, Petitioner entered his pleas without knowing the
actual charges to which he was pleading, the significance of
his plea, or the available alternatives. If Petitioner would
have been properly advised by defense counsel as to available
defenses, that he was pleading to all counts, or that he
would receive such a harsh habitual offender sanction, he
would not have entered pleas but instead insisted on
proceeding to trial.
Id. Lee raised this claim in his pro se and
counseled motions to withdraw the plea, see Resp.
Exs. 6; 7, and the trial court held an evidentiary hearing on
the issue, see EH Tr., at which Lee and Leemis
(Lee's counsel at the time of the plea) testified. The
trial court denied the motions and stated, in pertinent part:
This cause came on to be heard on August 3, 2011 on
Defendant's Pro-Se Motion to Withdraw Plea of Guilty
filed on June 6, 2011 by Defendant and his conflict-free
counsel's Motion to Withdraw Plea of Guilty filed on June
27, 2011. Prior to the hearing, the Court reviewed both
Motions and found many of Defendant's assertions were
refuted by the record (Defendant's Plea of Guilty form
and the transcript of Defendant's Plea Colloquy from
April 27, 2011). The Court found the hearing would be
limited to those issues not clearly and conclusively refuted
by the record: that Defendant had not received discovery;
that Defendant was misled and misinformed as to the facts
surrounding his case; and, that Defendant was unable to
adequately review the documents in his case.
The Court having reviewed both motions, having heard the
testimony of Scott Leemis,  Esquire who represented
Defendant at the time of his plea, and for fifteen (15)
months prior to his plea and the testimony of the Defendant,
having observed the demeanor of the witnesses and evaluated
their credibility and relied upon those observations and
evaluations in determining the facts of this case, having
reviewed the Plea of Guilty form and the Plea Colloquy,
having heard the arguments of counsel,  having
reviewed the relevant rules, statutes and case law, and being
fully advised in the premises finds:
Defendant's plea was knowingly and voluntarily made with
a full understanding of the consequences of his plea,
Defendant had adequate time to consult with counsel,
Defendant was aware of the charges to which he was pleading
guilty, Defendant was not misled or misinformed as to the
charges and facts surrounding his case and Defendant was not
manipulated into pleading to all charges. Further, there was
no good cause shown by Defendant.
Resp. Ex. 11 at 1-2. On appeal, Lee argued that the trial
judge abused her discretion when she denied his motion to
withdraw his plea, see Resp. Ex. 17; the State filed
an answer brief, see Resp. Ex. 18; and the appellate
court affirmed Lee's conviction and sentence per curiam,
see Lee, 103 So.3d 149; Resp. Ex. 19.
appellate brief, the State addressed the claim on the merits,
see Resp. Ex. 18 at 10-16, and therefore, the
appellate court may have affirmed Lee's conviction based
on the State's argument. If the appellate court addressed
the merits, the state court's adjudication of this claim
is entitled to deference under AEDPA. After a review of the
record and the applicable law, the Court concludes that the
state court's adjudication of this claim was not contrary
to clearly established federal law and did not involve an
unreasonable application of clearly established federal law.
Nor was the state court's adjudication based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
Accordingly, Lee is not entitled to relief on the basis of
even assuming the state appellate court's adjudication of
the claim is not entitled to deference, Lee's claim,
nevertheless, is without merit. In the instant case, Lee
signed the Plea of Guilty form, see Resp. Ex. 5, and
acknowledged at the April 27, 2011 plea hearing that counsel
had reviewed the form with him and answered his questions,
see Plea Tr. at 9. The following colloquy ensued.
THE COURT: Do you wish to enter a plea of guilty in Case No.
2010-3684 to count 1, armed burglary with assault or battery,
count 2, possession of [a] firearm by a convicted felon, and
count 3, aggravated assault with a deadly weapon; is that
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is that what you wish to do, to enter pleas of
THE DEFENDANT: Yes, ma'am.
THE COURT: . . . .
In Case No. 2010-3684, the state has agreed to withdraw ....
[PROSECUTOR]: Actually, I don't think we ever even filed
the PRR [(prison releasee reoffender)] notice.
THE COURT: Okay, would not file, sorry, the prison releasee
reoffender notice, which would subject you to mandatory time.
However, on count 1, an armed burglary with assault or
battery, that is a first-degree felony punishable by life in
prison -- 
[PROSECUTOR]: That's correct, Your Honor.
THE COURT: -- and as an habitual offender, of course, you
would face life in prison.
Count 2, possession of a firearm by convicted felon is a
second-degree felony. You would face the maximum penalty of
30 years in prison. And is there a minimum mandatory?
[PROSECUTOR]: There is, Your Honor, three years.
THE COURT: And there is a three-year minimum mandatory on
And on count 3, aggravated assault with a deadly weapon, that
is a third-degree felony. You would face the maximum
penalty of ten years in prison with a three-year minimum
mandatory. Do you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: Do you also understand there is no agreement other
than the fact that the state has agreed not to file the
prison releasee reoffender notice, there is no other
agreement as to what your sentence will be? I will order a
presentence investigation report and pass your case
approximately 30 days to get that report. And at sentencing
both you and your attorney as well as the state can present
whatever evidence and witnesses you wish the Court to
consider to formulate an appropriate sentence. Do you
THE DEFENDANT: Yes, ma'am.
THE COURT: And no one has promised you a specific sentence;