United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE
January 29, 2018, Anthony Maiorano filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No.
1. On September 12, 2018, Respondent filed an answer, with
exhibits. ECF No. 13. Thereafter, Petitioner filed an amended
§ 2254 petition. ECF No. 19. Respondent filed an answer
to the amended petition on March 21, 2019. ECF No. 24.
Petitioner has not filed a reply, although he was given the
opportunity to do so. See ECF No. 23.
matter was referred to the undersigned United States
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and Northern District of Florida Local Rule
72.2(B). After careful consideration, the undersigned has
determined no evidentiary hearing is required for the
disposition of this matter. See Rule 8(a), R. Gov.
§ 2254 Cases. The pleadings before the Court show the
petition should be denied.
December 30, 2008, in case number 08-0472CF, the State of
Florida filed an information in the Second Judicial Circuit,
Wakulla County, charging Petitioner Anthony Joseph Maiorano
with one count of possession of more than twenty (20) grams
of cannabis, a third degree felony, in violation of section
893.13(6)(a), Florida Statutes. Ex. C2. That same day, in
case number 08-0486CF, the State filed an information
charging Maiorano with three counts: (1) trafficking in
cocaine, a first degree felony, in violation of section
893.135, Florida Statutes; (2) possession of cannabis with
intent to sell, a third degree felony, in violation of
section 893.13(1)(a)2., Florida Statutes; and (3) possession
of drug paraphernalia, a first degree misdemeanor, in
violation of section 893.147(1), Florida Statutes. Ex. C1 at
1. On January 9, 2009, in case number 08-0480CF, the State of
Florida filed an information charging Maiorano with one count
of sale of a substance in lieu of cocaine, a third degree
felony, in violation of section 817.563, Florida Statutes.
proceedings held June 10, 2009, Maiorano entered open pleas
of no contest in all three cases. See Ex. C1 at
10-15 (signed plea forms); 41-49 (transcript of hearing).
Maiorano also admitted to violating probation in case number
2007-CF-366. Ex. B at 3-10; Ex. C1 at 8-9, 63-64. The judge
conducted a plea colloquy and then accepted Maiorano's
pleas. Ex. C1 at 48. The defense stipulated to a factual
basis. Id. at 49. The court accepted the
stipulation, found a factual basis existed to support the
charges, and found Maiorano entered the pleas freely,
knowingly, and voluntarily. Id. Regarding
sentencing, the court heard testimony from Maiorano's
mother, his wife, and Maiorano himself. Id. at
49-55, 62-63. The State asked for a sentence of thirty (30)
years in prison. Id. at 48, 61. In 2007-CF-366, the
court revoked probation and sentenced Maiorano to five (5)
years in prison, with credit for 192 days' time served.
Id. at 64. In cases 2008-CF-472 and 2008-CF-480, the
court sentenced Maiorano to five (5) years in prison, with
credit for 192 days' time served, to run concurrent.
Id. In 2008-CF-496, the court sentenced Maiorano to
twenty (20) years in prison on Count 1, with a minimum
mandatory term of three (3) years; five (5) years in prison
on Count 2; and time served on Count 3; to run concurrent to
the sentences imposed in the other two cases. Id. at
12, 2009, Maiorano's counsel filed a motion for reduction
or mitigation of sentence pursuant to Florida Rule of
Criminal Procedure 3.800(c). Ex. I. In an order rendered
September 11, 2009, the state trial court denied the motion
with a citation to Mitchell v. State, 719 So.2d 1258
(Fla. 1st DCA 1998). Ex. J.
January 21, 2010, Maiorano filed a pro se petition for writ
of habeas corpus in the First District Court of Appeal (First
DCA), seeking a belated appeal from his convictions and
sentences in all four cases. Ex. A at 103-07. The First DCA
granted this petition in an opinion filed October 6, 2010.
Ex. D. Maiorano's counsel filed an initial brief pursuant
to Anders v. California, 386 U.S. 738 (1967),
indicating no issues of arguable merit existed. Ex. E.
Maiorano filed a pro se brief. Ex. G. On October 31, 2011,
the First DCA per curiam affirmed the case without a written
opinion. Ex. H; Maiorano v. State, 75 So.3d 273 (Fla. 1st DCA
meantime, on June 4, 2010, Maiorano filed a pro se motion to
correct illegal sentence pursuant to Florida Rule of Criminal
Procedure 3.800(a). Ex. K at 1-9. The State filed a response,
id. at 10-14, and Maiorano filed a reply,
id. at 19-24. By order rendered August 6, 2010, the
state trial court denied the motion. Id. at 25.
Maiorano appealed to the First DCA, assigned case number
1D10-4908. Id. at 33. On November 16, 2010, the
First DCA affirmed the case without a written opinion and
denied Maiorano's motion for rehearing. Exs. N, O;
Maiorano v. State, 53 So.3d 1029 (Fla. 1st DCA
February 1, 2012, Maiorano filed a pro se motion for
post-conviction relief pursuant to Florida Rule of Criminal
Procedure 3.850. Ex. P at 1-22. He subsequently filed
supplements to the motion. Id. at 23-32. The State
filed responses. Id. at 41-46, 79-81. In an order
rendered February 13, 2013, the state post-conviction trial
court summarily denied the Ground 1. Id. at 82-112.
Maiorano filed a motion for rehearing and, after a hearing
thereon, the court granted rehearing by order on June 11,
2014, setting an evidentiary hearing on all grounds raised.
Ex. P at 126.
evidentiary hearing on the Rule 3.850 motion took place
December 17, 2015, and Maiorano was represented by counsel.
Ex. Q. At the start of the hearing, Maiorano, through
counsel, waived Grounds 2, 4, and 5. Id. at 8. The
court, counsel, and Maiorano discussed the grounds and
confirmed the waiver. Id. at 8-13. Thereafter, they
proceeded only on Grounds 1 and 3, both of which alleged
ineffective assistance of counsel. Id. at 13. Both
Maiorano and the State presented witnesses, and counsel for
both sides made arguments. Ex. Q at 18-91, 91-143, 143-78. In
an order rendered July 7, 2016, the court denied the Rule
3.850 motion. Ex. P at 145-50.
appealed the denial of post-conviction relief to the First
DCA and filed a pro se brief, assigned case number 1D16-3542.
Ex. P at 179; Ex. S. The State filed an answer brief, Ex. T,
and Maiorano filed a reply, Ex. U. On November 17, 2017, the
First DCA affirmed the case without a written opinion. Ex. V;
Maiorano v. State, 236 So.3d 1010 (Fla. 1st DCA
2017). The mandate issued December 11, 2017. Ex. V.
indicated above, Maiorano filed his § 2254 petition on
January 29, 2018, ECF No. 1, and he subsequently filed an
amended § 2254 petition, ECF No. 19. In the amended
§ 2254 petition, Maiorano raises four grounds, including
two claims of ineffective assistance of counsel (IAC):
(1) Trial Court Error/Violation of Due Process -
Consideration of Uncharged Offenses:
“Consideration of uncharged offenses or unsubstantiated
information prior to imposing sentence is impermissible; a
violation of fundamental due process. After the plea had been
accepted, the prosecutor presented information that would
support additional uncharged crimes and uncorroborated
hearsay facts for the court to consider prior to imposing the
sentence.” ECF No. 19 at 6.
(2) IAC - No. Objection to Consideration of Uncharged
Facts/Hearsay: “A state law procedure that
creates a liberty interest is entitled to the procedural
protections of the due process clause of the Fourteenth
Amendment. At Petitioner's sentencing hearing, counsel
failed to object to the court's consideration of
impermissible sentencing factors in aggravation and the
court's prohibition of the Petitioner's right to
allocution/rebuttal.” Id. at 9.
(3) Post-Conviction Trial Court Error - No.
Application of Strickland: “Claims of
ineffective assistance by counsel are reviewed and decided by
applying the rule established in Strickland. Here,
although the postconviction court provided record facts in
arriving at what it concluded to be sufficient
representation, the Strickland standard was not
employed.” Id. at 13.
(4) IAC - No. Objection to Harsher Sentence:
“A determination of whether a sentence resulted from
vindictiveness is conducted reviewing the totality of the
circumstances. Originally the Petitioner agreed to a 10 year
plea offer; but at the plea hearing decided to plea open to
the court. Was counsel ineffective for failing to object, and
due process violated, where a sentence of 20 years was
imposed and the record lacks explanation for the harsher
sentence?” Id. at 15-16.
Respondent has filed an answer and exhibits, ECF No. 13, as
well as an answer to the amended § 2254 petition, ECF
No. 24. Maiorano has not filed a reply, although give the
opportunity to do so. See ECF No. 23.
to 28 U.S.C. § 2254, as amended by the Anti-Terrorism
and Effective Death Penalty Act of 1996 (AEDPA), federal
courts may grant habeas corpus relief for persons in state
custody. Section 2254(d) provides, in pertinent part:
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.
28 U.S.C. § 2254(d). See, e.g., Cullen v.
Pinholster, 563 U.S. 170, 180-83 (2011); Gill v.
Mecusker, 633 F.3d 1272, 1287-88 (11th Cir. 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.'” Cullen,
563 U.S. at 181 (quoting Harrington v. Richter, 562
U.S. 86, 102 (2011), and Woodford v. Visciotti, 537
U.S. 19, 24 (2002)). This Court's review “is
limited to the record that was before the state court that
adjudicated the claim on the merits.” Id.
claims of ineffective assistance of counsel (IAC), the United
States Supreme Court has adopted a two-part test:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This 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 v. Washington, 466 U.S. 668, 687 (1984).
To demonstrate ineffectiveness, a “defendant must show
that counsel's performance fell below an objective
standard of reasonableness.” Id. at 688. To
demonstrate prejudice, a defendant “must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. For
this Court's purposes, importantly, “[t]he 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 (2009) (quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)). “And, because the
Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.”
Id. It is a “doubly deferential judicial
review that applies to a Strickland claim evaluated
under the § 2254(d)(1) standard.” Id.
1: Trial Court Error/Violation of Due Process -
Consideration of Uncharged Offenses
first ground, Petitioner Maiorano argues the trial court
violated due process in considering “uncharged offenses
or unsubstantiated information prior to imposing
sentence.” ECF No. 19 at 6. In particular, Maiorano
asserts that, after the trial judge accepted the pleas and
proceeded to sentencing, the prosecutor provided information,
in support of his argument for a 30-year sentence, describing
“evidence of additional offenses that were not charged
or included in the Petitioner's plea, nor was the
information intertwined with the offenses to which the
Petitioner was charged; specifically the described
allegations of selling drugs to minors and possession of a
firearm.” Id. at 7. Further, the prosecutor
stated Petitioner “is one of the most prolific drug
dealers in Wakulla County.” Id.; Ex. C1 at 57.
When defense counsel and Petitioner questioned the
information, the prosecutor indicated he was
“explaining the facts of the probable cause as they
were cited.” Ex. C1 at 60; ECF No. 19 at 7. Petitioner
asserts this information was hearsay and “the state was
required to present the probable cause/police report, law
enforcement testimony/law enforcement's transcribed
depositions to refute the Petitioner's challenge - or
other evidence in support of the trustworthiness of the
hearsay, ” but “the state never offered evidence
in corroboration of the hearsay and the court failed to hold
the state to its burden of production to verify the
hearsay.” ECF No. 19 at 7. Petitioner asserts the judge
“misconstrued Petitioner's attempt to clarify and
contest the veracity of the assertions made by the state as
an attack on the plea.” Id. at 8.
raised a similar claim in state court, in his pro se brief
filed in connection with his Anders appeal. In
particular, he there asserted, “Appellant's due
process rights were violated when Appellee introduced two (2)
unsubstantiated allegations, possession of a firearm by a
convicted felon, and unlawful sale of a controlled substance
by a person 18 years of age or older to a person under the
age of 18 to the trial court prior to imposing sentence, for
which the record supports the trial court impermissibly
considered prior [to] imposing a sentence almost five (5)
times greater than the lowest permissible sentence.”
Ex. G at 7-8. The First DCA per curiam affirmed the appeal
without a written opinion. Ex. H.
entered a straight-up, open plea to the trial court on June
10, 2009. Ex. C1 at 41-68 (transcript of plea and sentencing
hearing), 10-15 (written and signed plea forms). At the start
of the plea and sentencing hearing, defense counsel, Justin
Judge, Mr. Maiorano is going to enter a plea to the bench
today. He has got a few people that would like to speak. I
don't know if you want to set it off to the end here or
let him go ahead and do it now.
Id. at 42. An off-the-record discussion occurred
after which the judge asked, “Is there any
understanding or agreement with the State?”
Id. The prosecutor answered, “No, sir.”
Id. Discussion ensued regarding the Rule 3.992(a)
Criminal Punishment Code Scoresheet. Id. at 42-43.
The lowest permissible prison sentence in Maiorano's case
was 44.775 months according to the scoresheet. Ex. C1 at 37.
The highest possible sentence was 50 years. Id. The
judge specifically questioned defense counsel and Maiorano
about Maiorano's understanding of the score sheet
computation and possible sentence:
THE COURT: All right. So he understands that his score point
total is 87.7, which reflects under the code a sentencing
range of 44 months - 44.75 months in the State penitentiary
up to a maximum of 50 years. And that Count 1 in Case
2008-486 requires a minimum mandatory sentence of three
years, plus a $50, 000 fine. Does he understand that?
MR. GIVENS: He does, Judge.
THE COURT: All right. And he understands that absent any
basis for departure - there can, of course, be no departure
from any minimum mandatory. But absent a legal basis for a
departure and demonstrated evidence to support by a
preponderance that there would be an entitlement, there is no