United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, United States District Judge
Douglas Gabriel Hippen, an inmate of the Florida penal
system, initiated this action on July 8, 2015, by filing a
pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1)
under 28 U.S.C. § 2254. In the Petition, Hippen
challenges a 2013 state court (Duval County, Florida)
judgment of conviction for driving under the influence (DUI)
manslaughter. Respondents have submitted a memorandum in
opposition to the Petition. See Respondents'
Answer in Response to Order to Show Cause and Petition for
Writ of Habeas Corpus (Response; Doc. 18) with exhibits
(Resp. Ex.). On August 29, 2016, the Court entered an Order
to Show Cause and Notice to Petitioner (Doc. 9), admonishing
Hippen regarding his obligations and giving Hippen a time
frame in which to submit a reply. When he failed to file a
reply, the Court directed Hippen to show cause, by April 16,
2018, why this case should not be dismissed for his failure
to either reply to the Response or notify the Court that he
did not intend to reply. See Order to Show Cause
(Doc. 28), filed March 14, 2018. As of the date of this
Order, Hippen has not submitted a brief in reply. This case
is ripe for review.
August 1, 2012, the State of Florida charged Hippen with DUI
manslaughter (count one), and vehicular manslaughter (count
two). See https://core.duvalclerk.com, Case No.
16-2012-CF-006883-AXXX-MA, docket entries 17, 18,
Information. Hippen pled guilty to DUI manslaughter on May
13, 2013. See Resp. Ex. A at 58-59, Plea of Guilty
and Negotiated Sentence; 70-81, Plea Proceeding (Plea Tr.).
On July 9, 2013, the trial court sentenced him to a term of
incarceration of ten years followed by a term of five years
of probation. See Resp. Ex. A at 60-69, Judgment;
82-94, Sentencing Hearing (Sentencing Tr.). He did not pursue
a direct appeal of the judgment and sentence.
August 1, 2014, Hippen filed a pro se motion for
post-conviction relief pursuant to Florida Rule of Criminal
Procedure 3.850 (Rule 3.850 motion). See Resp. Ex. A
at 1-30. In his request for post-conviction relief, Hippen
asserted that counsel (Ann E. Finnell) was ineffective
because she failed to: object to the prosecutor's breach
of the plea agreement (ground one); and advise Hippen that he
could file a motion to disqualify the judge (ground two); and
investigate and advise Hippen of a viable defense regardless
of her acknowledged conflict of interest (ground three).
Additionally, Hippen states that counsel was ineffective
because she misinformed him that a term of probation was
statutorily mandated following a prison term for DUI
manslaughter (ground four), and misadvised him to withdraw
dispositive motions and enter a guilty plea (ground five).
The circuit court denied his Rule 3.850 motion on February
26, 2015. See id. at 45-98. Hippen filed a pro se
brief, see Resp. Ex. B, and the appellate court
affirmed the circuit court's denial of post-conviction
relief per curiam on June 19, 2015, see Resp. Ex. C.
The mandate issued on July 15, 2015. See Resp. Ex.
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 [Hippen'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 Marshall v. Sec'y, Fla. Dep't
of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). 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
Harrington v. Richter, 562 U.S. 86, 100 (2011).
Where the state court's adjudication on the merits is
unaccompanied by an explanation, the United States Supreme
Court recently stated:
[T]he federal court should "look through" the
unexplained decision to the last related state-court decision
that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). The
presumption may be rebutted by showing that the higher state
court's adjudication most likely relied on different
grounds than the lower state court's reasoned decision,
such as persuasive alternative grounds that were briefed or
argued to the higher court or obvious in the record it
reviewed. Id. at 1192, 1196.
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).
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
"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. Richter, 562
U.S. at 102. Thus, to the extent that Hippen'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 Trial 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, 687 (1984)).
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
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.
United States Supreme Court has long recognized that
Strickland's two-part inquiry applies to
ineffective assistance of counsel claims arising out of the
plea process. See Hill v. Lockhart, 474 U.S. 52, 57
(1985). In 2012, in companion decisions in
Missouri v. Frye, 566 U.S. 134 (2012), and
Lafler v. Cooper, 566 U.S. 156 (2012), the Supreme
Court clarified that the Sixth Amendment right to the
effective assistance of counsel extends specifically "to
the negotiation and consideration of plea offers that lapse
or are rejected." In re Perez, 682 F.3d 930,
932 (11th Cir. 2012) (per curiam) (footnote omitted). In
Lafler, the parties agreed that counsel's
performance was deficient when he advised the defendant to
reject the plea offer on the grounds he could not be
convicted at trial. See 566 U.S. at 163. Thus, the
Supreme Court articulated a three-part test to prove
prejudice in the context of a foregone guilty plea.
In contrast to Hill, here the ineffective advice led
not to an offer's acceptance but to its rejection. Having
to stand trial, not choosing to waive it, is the prejudice
alleged. In these circumstances a defendant must show that
but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances),
that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and
sentence that in fact were imposed.
Id. at 163-64; see Frye, 566 U.S. at 147;
Gissendaner v. Seaboldt, 735 F.3d 1311, 1317-19
(11th Cir. 2013).
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); 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&# ...