United States District Court, N.D. Florida, Tallahassee Division
ORDER AND REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE
cause is before the court on Petitioner's petition for
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
(ECF No. 1). Respondent filed an answer and relevant portions
of the state court record (ECF No. 25). Petitioner filed a
reply (ECF No. 27).
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(B); see also 28 U.S.C. §
636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful
consideration of all issues presented by the parties, it is
the opinion of the undersigned that no evidentiary hearing is
required for the disposition of this matter, Rule 8(a), Rules
Governing Section 2254 Cases. It is further the opinion of
the undersigned that the pleadings and attachments before the
court show that Petitioner is not entitled to relief.
BACKGROUND AND PROCEDURAL HISTORY
relevant aspects of the procedural background of this case
are established by the state court record (see ECF
No. 25). On June 7, 2013, Petitioner was indicted
in the Circuit Court in and for Leon County, Florida, No.
2013-CF-1757, with one count of capital first degree
premeditated murder (Ex. B1 at 6-7). On January 21, 2014,
Petitioner filed, in open court, a waiver of her right to a
twelve-peson jury, in exchange for the State's agreement
not to seek the death penalty (see Id. at 44). On
March 31, 2014, Petitioner entered a written plea agreement
pursuant to which she agreed to enter a no contest plea to a
reduced charge of second degree murder (a life felony) in
exchange for a sentence of forty-five (45) years in prison
with credit for 310 days (id. at 54-55). The same
day, the court held a plea and sentencing hearing
(id. at 83-97). The court conducted a colloquy, and
found that Petitioner understood the nature of the charges
against her and the consequences of her plea; that her
decision to enter a plea was made freely and voluntarily; and
that she was advised by a competent attorney (id. at
86-91). The trial court further found that there was a
sufficient factual basis for the plea (id. at 91).
The court accepted Petitioner's plea, adjudicated her
guilty of second degree murder, and sentenced her in
accordance with the plea agreement (id. at 56-64,
through counsel, appealed the judgment to the Florida First
District Court of Appeal (“First DCA”), No.
1D14-1622 (Ex. B2). Petitioner's counsel filed a brief,
pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that counsel was unable to make a good
faith argument that reversible error occurred in the trial
court (id.). The First DCA provided Petitioner an
opportunity to file a pro se initial brief (Ex. B3), but she
did not do so. The First DCA affirmed the judgment per curiam
without written opinion on December 18, 2014 (Ex. B4).
Bryant-Penny v. State, 152 So.3d 571 (Fla. 1st DCA
2014) (Table). The mandate issued January 13, 2015 (Ex. B5).
March 6, 2015, Petitioner filed a motion for post-conviction
relief and supporting memorandum in the state circuit court,
pursuant to Rule 3.850 of the Florida Rules of Criminal
Procedure (Ex. C1 at 1-14). On February 19, 2015, the state
circuit court dismissed Ground One as legally insufficient,
without prejudice to Petitioner's amending the claim
within sixty days (id. at 15). Petitioner filed a
timely amendment to Ground One (id. at 16-19). On
December 3, 2015, the state circuit court entered an order
summarily denying Grounds One, Two, and Four, and setting an
evidentiary hearing on Ground Three (id. at 21-38).
At the conclusion of the evidentiary hearing, the court
orally pronounced its denial of Ground Three (id. at
45-77). On February 23, 2016, the court issued a final order
denying the Rule 3.850 motion (id. at 39).
Petitioner appealed the decision to the First DCA, No.
1D16-1369 (Ex. C2). The First DCA affirmed the lower
court's decision per curiam without written opinion on
March 30, 2017 (Ex. C4). Bryant v. State, 224 So.3d
211 (Fla. 1st DCA 2017) (Table). The mandate issued April 25,
2017 (Ex. C5).
filed the instant federal habeas action on September 7, 2017
(ECF No. 1).
STANDARD OF REVIEW
courts may grant habeas corpus relief for persons in state
custody pursuant to 28 U.S.C. § 2254. Section 2254(d)
provides, in relevant part:
(d) 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; 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) (2011).
United States Supreme Court explained the framework for
§ 2254 review in Williams v. Taylor, 529 U.S.
362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The appropriate
test was described by Justice O'Connor as follows:
Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant
the writ if the state court identifies the correct governing
legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the
Id., 529 U.S. at 412-13 (O'Connor, J.,
the Williams framework, on any issue raised in a
federal habeas petition upon which there has been an
adjudication on the merits in a state court proceeding, the
federal court must first ascertain the “clearly
established Federal law, ” namely, “the governing
legal principle or principles set forth by the Supreme Court
at the time the state court render[ed] its decision.”
Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct.
1166, 155 L.Ed.2d 144 (2003). The law is “clearly
established” only when a Supreme Court holding at the
time of the state court decision embodies the legal principle
at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130
S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Woods v.
Donald, - U.S. -, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464
(2015) (“We have explained that clearly established
Federal law for purposes of § 2254(d)(1) includes only
the holdings, as opposed to the dicta, of this Court's
decisions.” (internal quotation marks and citation
identifying the governing legal principle(s), the federal
court determines whether the state court adjudication is
contrary to the clearly established Supreme Court case law.
The adjudication is not contrary to Supreme Court precedent
merely because it fails to cite to that precedent. Rather,
the adjudication is “contrary” only if either the
reasoning or the result contradicts the relevant Supreme
Court cases. See Early v. Packer, 537 U.S. 3, 8, 123
S.Ct. 362, 154 L.Ed.2d 263 (2002). Where there is no Supreme
Court precedent on point, the state court's conclusion
cannot be contrary to clearly established federal law.
See Woods, 135 S.Ct. at 1377 (holding, as to claim
that counsel was per se ineffective in being absent from the
courtroom for ten minutes during testimony concerning other
defendants: “Because none of our cases confront the
specific question presented by this case, the state
court's decision could not be contrary to any holding
from this Court.” (internal quotation marks and
citation omitted)). If the state court decision is contrary
to clearly established federal law, the federal habeas court
must independently consider the merits of the
petitioner's claim. See Panetti v. Quarterman,
551 U.S. 930, 954, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).
“contrary to” clause is not satisfied, the
federal habeas court next determines whether the state court
“unreasonably applied” the governing legal
principles set forth in the Supreme Court's cases. The
federal court defers to the state court's reasoning
unless the state court's application of the legal
principle(s) was “objectively unreasonable” in
light of the record before the state court.
Williams, 529 U.S. at 409; see Holland v.
Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d
683 (2004) (per curiam). In applying this standard, the
Supreme Court has emphasized:
When reviewing state criminal convictions on collateral
review, federal judges are required to afford state courts
due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong. Federal
habeas review thus exists as “a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through
appeal.” Harrington, supra, at
102-103, 131 S.Ct. 770 (internal quotation marks omitted).
Woods, 135 S.Ct. at 1376 (quoting Harrington v.
Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624
2254(d) also allows federal habeas relief for a claim
adjudicated on the merits in state court where that
adjudication “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)(2). The “unreasonable
determination of the facts” standard is implicated only
to the extent the validity of the state court's ultimate
conclusion is premised on unreasonable fact finding. See
Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011).
As with the “unreasonable application” clause,
the federal court applies an objective test. Miller-El v.
Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d
931 (2003) (holding that a state court decision 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.”). Federal courts “may not
characterize . . . state-court factual determinations as
unreasonable merely because we would have reached a different
conclusion in the first instance.” Brumfield v.
Cain, ___ U.S. ___, 135 S.Ct. 2269, 2277, 192 L.Ed.2d
356 (2015) (quotation marks omitted).
performing review under § 2254(d), the federal court
presumes that all factual determinations made by the state
court are correct. 28 U.S.C. § 2254(e)(1). The
petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing
evidence.” Id.; see, e.g.,
Miller-El, 537 U.S. at 340 (explaining that a
federal court can disagree with a state court's factual
finding and, when guided by the AEDPA, “conclude the
decision was unreasonable or that the factual premise was
incorrect by clear and convincing evidence”). Neither
the Supreme Court nor the Eleventh Circuit has interpreted
how § 2254(d)(2) and § 2254(e)(1) interact in the
context of fact-based challenges to state court
adjudications. See Cave v. Sec'y for Dep't of
Corr., 638 F.3d. 739 (11th Cir. 2011). However, the
Eleventh Circuit has declined to grant habeas relief under
§ 2254(d)(2) in the context of a state appellate
court's summary affirmance, where it found that the
validity of the state court decision was not premised on the
trial court's unreasonable fact finding, and that the
petitioner failed to demonstrate “by clear and
convincing evidence that the record reflect[ed] an
insufficient factual basis for affirming the state
court's decision.” Gill, 633 F.3d at 1292.
the federal habeas court finds that the petitioner satisfied
§ 2254(d), does the court take the final step of
conducting an independent review of the merits of the
petitioner's claim. See Panetti, 551 U.S. at
954. Even then, the writ will not issue unless the petitioner
shows that he is in custody “in violation of the
Constitution or laws and treaties of the United
States.” 28 U.S.C. § 2254(a). “If this
standard is difficult to meet, that is because it was meant
to be.” Richter, 562 U.S. at 102.
EXHAUSTION AND PROCEDURAL DEFAULT
It is a
long-standing prerequisite to the filing of a federal habeas
corpus petition that the petitioner exhaust available state
court remedies, see 28 U.S.C. § 2254(b)(1),
thereby giving the State the “‘opportunity to
pass upon and correct' alleged violations of its
prisoners' federal rights.” Duncan v.
Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865
(1995) (quoting Picard v. Connor, 404 U.S. 270, 275,
92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citation omitted)). To
satisfy the exhaustion requirement, the petitioner must
“fairly present” his claim in each appropriate
state court, alerting that court to the federal nature of the
claim. Duncan, 513 U.S. at 365-66;
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S.
Supreme Court has provided lower courts with guidance for
determining whether a habeas petitioner has met the
“fair presentation” requirement. In Picard v.
Connor, the Court held that, for purposes of exhausting
state remedies, a claim for relief in habeas corpus must
include reference to a specific federal constitutional
guarantee, as well as a statement of the facts which entitle
the petitioner to relief. 404 U.S. at 277. In announcing that
“the substance of a federal habeas corpus claim must
first be presented to the state courts, ” id.,
404 U.S. at 278, the Court rejected the contention in that
case that the petitioner satisfied the exhaustion requirement
by presenting the state courts only with the facts necessary
to state a claim for relief.
the Court has indicated that it is not enough that a
petitioner makes a general appeal to a constitutional
guarantee as broad as due process to present the
“substance” of such a claim to a state court.
Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74
L.Ed.2d 3 (1982). In Anderson, the Sixth Circuit
Court of Appeals granted the habeas petition on the ground
that a jury instruction violated due process because it
obviated the requirement that the prosecutor prove all the
elements of the crime beyond a reasonable doubt. 459 U.S. at
7 (citing Sandstrom v. Montana, 442 U.S. 510, 99
S.Ct. 2450, 61 L.Ed.2d 39 (1979)). The only manner in which
the habeas petitioner cited federal authority was by
referring to a state court decision in which “the
defendant . . . asserted a broad federal due process right to
jury instructions that properly explain state law.”
Anderson, 459 U.S. at 7. On review by the Supreme
Court, the Court expressed doubt that a defendant's
citation to a state-court decision predicated solely on state
law was sufficient to fairly apprise a reviewing court of a
potential federal claim merely because the defendant in the
cited case advanced a federal claim. Id.,
459 U.S. at 7 and n.3. Furthermore, the Court clarified that
such a citation was obviously insufficient when the record
satisfied the federal habeas court that the federal claim
asserted in the cited case was not the same as the federal
claim on which federal habeas relief was sought. Id.
later, the Supreme Court readdressed the “fair
presentation” requirement in Duncan v. Henry,
513 U.S. 364. The Duncan Court strictly construed
the exhaustion requirement so as to mandate that, if state
and federal constitutional law overlap in their applicability
to a petitioner's claim, the petitioner must raise his
issue in terms of the applicable federal right in state court
in order to obtain federal review of the issue. The Supreme Court
explained, “[i]f a habeas petitioner wishes to claim
that an evidentiary ruling at a state court trial denied him
the due process of law guaranteed by the Fourteenth
Amendment, he must say so, not only in federal, but in state
court.” Duncan, 513 U.S. at 365-66.
Baldwin v. Reese, the Supreme Court again focused
upon the requirement of “fair presentation, ”
holding that “ordinarily a state prisoner does not
‘fairly present' a claim to a state court if that
court must read beyond a petition or a brief (or a similar
document) that does not alert it to the presence of a federal
claim in order to find material, such as a lower court
opinion in the case, that does so.” 541 U.S. 27, 32,
124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The Baldwin
court commented that “[a] litigant wishing to raise a
federal issue can easily indicate the federal law basis for
his claim in a state-court petition or brief, for example, by
citing in conjunction with the claim the federal source of
law on which he relies or a case deciding such a claim on
federal grounds, or by simply labeling the claim
‘federal.'” Id., 541 U.S. at 32.
With regard to this language, the Eleventh Circuit explained
in McNair v. Campbell, 416 F.3d 1291 (11th Cir.
If read in a vacuum, this dicta might be thought to create a
low floor indeed for petitioners seeking to establish
exhaustion. However, we agree with the district court that
this language must be “applied with common sense and in
light of the purpose underlying the exhaustion requirement[:]
‘to afford the state courts a meaningful opportunity to
consider allegations of legal error without interference from
the federal judiciary.'” McNair [v.
Campbell], 315 F.Supp.2d at 1184 (quoting Vasquez v.
Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88
L.Ed.2d 598 (1986)). This is consistent with settled law
established by the Supreme Court. . . . We therefore hold
that “‘[t]he exhaustion doctrine requires a
habeas applicant to do more than scatter some makeshift
needles in the haystack of the state court
416 F.3d at 1302-03 (citations omitted).
issue that was not properly presented to the state court and
which can no longer be litigated under state procedural rules
is considered procedurally defaulted, that is, procedurally
barred from federal review. See Bailey v. Nagle, 172
F.3d 1299, 1302-03 (11th Cir. 1999). This court will also
consider a claim procedurally defaulted if it was presented
in state court and rejected on the independent and adequate
state ground of procedural bar or default. See Coleman v.
Thompson, 501 U.S. 722, 734-35 and n.1, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991); Caniff v. Moore, 269 F.3d
1245, 1247 (11th Cir. 2001) (“[C]laims that have been
held to be procedurally defaulted under state law cannot be
addressed by federal courts.”); Chambers v.
Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998)
(applicable state procedural bar should be enforced by
federal court even as to a claim which has never been
presented to a state court); accord Tower v.
Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker
v. Dugger, 876 F.2d 1470 (11th Cir. 1990), rev'd
on other grounds, 498 U.S. 308, 111 S.Ct. 731, 112
L.Ed.2d 812 (1991). In the first instance, the federal court
must determine whether any future attempt to exhaust state
remedies would be futile under the state's procedural
default doctrine. Bailey, petitioner had never
mentioned the federal standards regarding extraneous
materials in his brief, but relied on state law for his
arguments. Id. 172 F.3d at 1303. In the second
instance, a federal court must determine whether the last
state court rendering judgment clearly and expressly stated
its judgment rested on a procedural bar. Id.
federal court is not required to honor a state's
procedural default ruling unless that ruling rests on
adequate state grounds independent of the federal question.
See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038,
103 L.Ed.2d 308 (1989). The adequacy of a state procedural
bar to the assertion of a federal question is itself a
federal question. Lee v. Kemna, 534 U.S. 362, 122
S.Ct. 877, 885, 151 L.Ed.2d 820 (2002). The federal court
“lacks jurisdiction to entertain a federal claim on
review of a state court judgment, if that judgment rests on a
state law ground that is both independent of the merits of
the federal claim and an adequate basis for the court's
decision.” Foster v. Chatman, - U.S. -, 136
S.Ct. 1737, 1745, 195 L.Ed.2d 1 (2016) (internal quotation
marks and citation omitted). Even where a state court has
ruled in the alternative, addressing both the independent
state procedural ground and the merits of the federal claim,
the federal court should apply the state procedural bar and
decline to reach the merits of the claim. Alderman v.
Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (citing
Harris, 489 U.S. at 264 n.10).
Eleventh Circuit has set forth a three-part test to determine
whether a state court's procedural ruling constitutes an
independent and adequate state rule of decision. Judd v.
Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). First, the
last state court rendering judgment must clearly and
expressly state it is relying on state procedural rules to
resolve the federal claim. Second, the state court's
decision on the procedural issue must rest entirely on state
law grounds and not be intertwined with an interpretation of
federal law. Id. Third, the state procedural rule
must be adequate. Id. The adequacy requirement has
been interpreted to mean the rule must be firmly established
and regularly followed, that is, not applied in an arbitrary
or unprecedented fashion. Id.
overcome a procedural default, the petitioner must show cause
for the default and prejudice resulting therefrom, or that
the federal court's failure to reach the merits of the
claim would result in a fundamental miscarriage of justice.
Tower, 7 F.3d at 210; Parker, 876 F.2d
1470. “For cause to exist, an external impediment,
whether it be governmental interference or the reasonable
unavailability of the factual basis for the claim, must have
prevented petitioner from raising the claim.”
McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct.
1454, 113 L.Ed.2d 517 (1991) (quoting Murray v.
Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986)). To satisfy the miscarriage of justice exception,
the petitioner must show that “a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.” Schlup v. Delo, 513
U.S. 298, 327, 115 S.Ct. 85, 130 L.Ed.2d 808 (1995).
“To establish the requisite probability, the petitioner
must show that it is more likely than not that no reasonable
juror would have convicted him.” Schlup, 513
U.S. at 327. Further:
a substantial claim that constitutional error has caused the
conviction of an innocent person is extremely rare. To be
credible, such a claim requires [a] petitioner to support his
allegations of constitutional error with new reliable
evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial.
Id. Although a habeas petitioner asserting a
convincing claim of actual innocence need not prove diligence
to overcome a procedural bar, timing is a factor relevant in
evaluating the reliability of a petitioner's proof of
innocence. See McQuiggin v. Perkins, 569 U.S. 383,
399, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013). As the Court
stated in Schlup, “[a] court may consider how
the timing of the submission and the likely credibility of [a
petitioner's] affiants bear on the probable reliability
of . . . evidence [of actual innocence].” 513 U.S. at
332; see also House v. Bell, 547 U.S. 518, 537, 126
S.Ct. 2064, 165 L.Ed.2d 1 (2006).
this framework, the court will review Petitioner's
A. Ground One: “Petitioner's constitutional
amendment right [sic] was violated where counsel failed to
move for a continuance in order to determine
Pet[itioner's] mental state.”
Ground Three: “Counsel was ineffective for failing
to inform, investigate, and/or prepare defense [of] insanity,
mental incompetence, thus denying her 6th U.S. Constitutional
Ground One, Petitioner alleges that at the beginning of the
plea proceeding, the court “discussed the
Defendant's struggle to stabalize [sic] her
medication” (ECF No. 1 at 5). Petitioner alleges she had
not been taking her medication for some time (id.).
Petitioner alleges the court asked her if she had taken any
medication, and she responded that she was not taking any
medication (id.). Petitioner alleges this was
“a clear indication of the Defendant's mental
incompetence and failure to understand simply asked
questions” (id.). Petitioner contends defense
counsel should have requested a continuance of the plea
hearing to permit her to be evaluated for mental competence
(see ECF No. 27 at 2).
Ground Three, Petitioner alleges she is diagnosed with
schizophrenia and bipolar disorder, which causes separation
of thought process and emotion, disorientation of reality
accompanied by delusion and hallucination, fragmentation of
the personality, motor disturbances, and bizarre behavior
(ECF No. 1 at 8). Petitioner alleges both of her mental
disorders are extremely severe (id.). She alleges
defense counsel failed to inform her that her mental
disorders were a viable defense to the murder charge
asserts Ground One is essentially the same claim Petitioner
presented to the state courts as Amended Ground One of her
Rule 3.850 motion, and it thus “appears” to be
exhausted (ECF No. 25 at 7, 21-22). Respondent contends the
state court's adjudication Ground One was not contrary to
or an unreasonable application of clearly established federal
law (id. at 22-27).
respect to Ground Three, Respondent contends this claim of
ineffective assistance of trial counsel (“IATC”)
is similar to the IATC claim
presented as Ground Three in Petitioner's Rule 3.850
motion, but the claims are dissimilar in that Petitioner did
not cite the Sixth Amendment in her Rule 3.850 motion (ECF
No. 25 at 9-11) (emphasis in original). Respondent further
contends Petitioner's citation to a Florida state case,
which in turn cited Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was
insufficient to fairly present her federal claim to the state
courts (id.). Respondent contends Ground Three is
thus unexhausted and procedurally defaulted (id.).
Respondent argues even assuming Ground Three was not
procedurally defaulted, Petitioner is not entitled to federal
habeas relief, because the state court adjudicated the merits
of the claim, and the court's adjudication was not
contrary to or an unreasonable application of clearly
established federal law (id. at 34-41).
Petitioner's reply, she argues she fairly presented
Ground Three as a federal claim in state court by arguing
that her claim was a claim of ineffective assistance of
counsel, even though she did not expressly cite the Sixth
Amendment in her argument of Ground Three (ECF No. 27 at 2).
court will first address Respondent's exhaustion defense
as to Ground Three. The state court record shows that
Petitioner's Rule 3.850 motion presented four IATC claims
(Ex. C1 at 1-7). Petitioner argued counsel's conduct was
deficient, and it prejudiced the outcome of her case
(id.). In Petitioner's Amended Ground One, she
cited Strickland, and in her argument of Ground Two,
she contended counsel's ineffective assistance violated
her Sixth Amendment right (id. at 3, 17). Petitioner
did not mention federal law in her arguments of Grounds Three
and Four (see Id. at 4-6). In the state court's
written order denying three of Petitioner's four IATC
claims (Grounds One, Two, and Four), the court cited
Strickland as the applicable legal standard
(id. at 21). On appeal to the First DCA, Petitioner
abandoned two IATC claims (Grounds Two and Four), but with
respect to Grounds One and Three, she argued that the lower
court's adjudication of those claims was erroneous under
Strickland (Ex. C2 at 6-7).
undersigned concludes that Petitioner alerted the state
circuit court to the federal nature of all of her IATC
claims, and she alerted the First DCA to the federal nature
of those IATC claims she was appealing. Further, the state
courts adjudicated the merits of the federal claims which
Petitioner presented. Therefore, Petitioner satisfied the
exhaustion requirement as to Grounds One and Three. The court
will thus proceed with the next step of determining whether
Petitioner has demonstrated that the last state court's
adjudication of the merits of Grounds One and Three (in this
case, it is the First DCA's decision in the
post-conviction appeal) was based upon an unreasonable
determination of the facts, or was contrary to or an
unreasonable application of clearly established federal law.
Clearly Established Federal Law
two-part test articulated in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984) applies to claims that counsel was ineffective during
the plea process. See Lafler v. Cooper, 566 U.S.
156, 162-63, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (applying
Strickland's two-part test to federal habeas
petitioner's claim that counsel was ineffective for
advising him to reject a plea offer); Missouri v.
Frye, 566 U.S. 133, 145, 132 S.Ct. 1399, 182 L.Ed.2d 379
(2012) (applying Strickland's two-part test to
federal habeas petitioner's claim that counsel was
ineffective for failing to communicate a prosecution plea
offer before it lapsed); Hill v. Lockhart, 474 U.S.
52, 48, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (applying
Strickland's two-part test to defendant's
challenge to his guilty plea based on ineffective assistance
of counsel). Strickland's first prong requires a
defendant to show “‘that counsel's
representation fell below an objective standard of
reasonableness.'” Hill, 474 U.S. at 57
(quoting Strickland, 466 U.S. at 688). The focus of
inquiry under the performance prong of the
Strickland standard is whether counsel's
assistance was “reasonable considering all the
circumstances.” Strickland, 466 U.S. at 691.
Strickland's second prong requires a defendant
to show “that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.”
Strickland, 466 U.S. at 694. In the context of
pleas, “[t]he . . . ‘prejudice' requirement .
. . focuses on whether counsel's constitutionally
ineffective performance affected the outcome of the plea
process.” Hill, 474 U.S. at 59.
district court considers a habeas petition, the state
court's findings of historical facts in the course of
evaluating an ineffectiveness claim are subject to the
presumption of correctness, while the performance and
prejudice components are mixed questions of law and fact.
See Strickland, 466 U.S. at 698; Collier v.
Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999).
“Surmounting Strickland's high bar is
never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
“Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult.” Richter, 562 U.S. at
105. As the court explained in Richter:
An ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard
must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very
adversary process the right to counsel is meant to serve.
Strickland, 466 U.S. at 689-690, 104 S.Ct. 2052.
Even under de novo review, the standard for judging
counsel's representation is a most deferential one. . . .
Establishing 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, ” id. at 689, 104 S.Ct. 2052;
Lindh v. Murphy, 521 U.S. 320, 333 n.7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in
tandem, review is “doubly” so, Knowles
[v. Mirzayance], 556 U.S. [111, ] 123, 129 S.Ct.
[1411, ] 1420[, 173 L.Ed.2d 251 (2009)]. The
Strickland standard is a general one, so the range
of reasonable applications is substantial. 556 U.S. at 123,
129 S.Ct. at 1420. Federal habeas courts must guard against
the danger of equating unreasonableness under
Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not
whether counsel's actions were reasonable. The question
is whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard.
Richter, 562 U.S. at 105.
Process Clause of the Fourteenth Amendment prohibits states
from trying or convicting a defendant who is mentally
incompetent. See Pate v. Robinson, 383 U.S. 375, 86
S.Ct. 836, 15 L.Ed.2d 815 (1966). The Supreme Court set the
standard to be used in determining mental competency as
whether a defendant “has sufficient present ability to
consult with his [or her] lawyer with a reasonable degree of
rational understanding-and whether he [or she] has a rational
as well as factual understanding of the proceedings against
him [or her].” Dusky v. United States, 362
U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per
curiam); Drope v. Missouri, 420 U.S. 162, 171, 95
S.Ct. 896, 43 L.Ed.2d 103 (1975); see also Indiana v.
Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345
Drope, the Court elaborated as follows:
The import of our decision in Pate v. Robinson is
that evidence of a defendant's irrational behavior, his
[or her] demeanor at trial, and any prior medical opinion on
competence to stand trial are all relevant in determining
whether further inquiry is required, but that even one of
these factors standing alone may, in some circumstances, be
sufficient. There are, of course, no fixed or immutable signs
which invariably indicate the need for further inquiry to
determine fitness to proceed; the question is often a
difficult one in which a wide range of manifestations and
subtle nuances are implicated. That they are difficult to
evaluate is suggested by the varying opinions trained
psychiatrists can entertain on the same facts.
Drope, 420 U.S. at 180.
Eleventh Circuit has applied and expounded upon these
standards. “[N]either low intelligence, mental
deficiency, nor bizarre, volatile, and irrational behavior
can be equated with mental incompetence to stand
trial.” Medina v. Singletary, 59 F.3d 1095,
1107 (11th Cir. 1995) (citation omitted). A Pate
analysis must focus on “what the trial court did in
light of what it then knew, [and] whether objective facts
known to the trial court were sufficient to raise a bona fide
doubt as to the defendant's competency.”
Fallada v. Dugger, 819 F.2d 1564, 1568 (11th Cir.
1987) (citations omitted). A petitioner who makes a
substantive competency claim, contending that she was
convicted while mentally incompetent, “is entitled to
no presumption of incompetency and must demonstrate his or
her incompetency by a preponderance of the evidence.”
James v. Singletary, 957 F.2d 1562, 1571 (11th Cir.
1992). This standard is in contrast to a petitioner who makes
a procedural competency claim alleging that the trial court
failed to hold a competency hearing after her competency was
put at issue. To prevail on a procedural competency claim,
“a petitioner must establish that the state trial judge
ignored facts raising a ‘bona fide doubt' regarding
the petitioner's competency to stand trial.”
Id. at 1572 n.15 (citing Fallada, 819 F.2d
at 1568). A petitioner who presents “clear and
convincing evidence” which creates a “real,
substantial and legitimate doubt” as to her competence
is entitled to an evidentiary hearing on her substantive
competency claim. Medina, 59 F.3d at 1106 (quoting
James, 957 F.2d at 1573). However, the standard of
proof is high, and “the facts must positively,
unequivocally, and clearly generate the legitimate
doubt.” Card v. Singletary, 981 F.2d 481, 484
(11th Cir. 1992) (quotations omitted). Relevant information
may include evidence of a defendant's irrational
behavior, demeanor at trial, or prior medical opinion.
See Watts v. Singletary, 87 F.3d 1282, 1287 (11th
lifelong history of mental illness and emotional problems
does not demonstrate incompetency without a specific showing
of how these difficulties generated a substantial doubt as to
the defendant's competency at the time in question.
See Medina, 59 F.3d at 1106; Card, supra.
Similarly, the fact that the accused is undergoing treatment
with psychiatric drugs, while relevant, does not alone prove
incompetence. See Sheley v. Singletary, 955 F.2d
1434, 1438-39 (11th Cir. 1992). In order to establish
incompetence, evidence must establish that the drugs affected
the accused to the point that she could not effectively
consult with her attorney and could not understand the
proceedings. See Id. at 1439.
Federal Review of State Court Decision
respect to Ground One, trial counsel's failure to request
a continuance of the plea hearing in order to have Petitioner
mentally evaluated, the only fact Petitioner alleged in
support of this claim was that her stating “No, ”
when the trial court asked her if she was currently under the
influence of any medication, should have indicated to counsel
and the court that she was incompetent to proceed
(see Ex. C1 at 17). Petitioner alleged:
Counsel, knowledge [sic] of Defendant's diagnosis of
schizophrenia and severe bi-polar disorder, and his open
discussion at plea hearing with Judge about her mental
instability and the jail's struggle to medicate her
correctly shows he cannot claim ignorance of her condition.
Defendant shows a lack of understanding and easy confusion
over a simple question. At this time, counsel should have
requested the Court to reschedule the hearing until he set up
further evaluation for Defendant's competency and his
failure to do so meets the deficiency prong for ineffective
assistance of counsel. This is counsel's specific act of
omission, by letting proceedings continue after witnessing
Defendant's incompetency. Someone who does not even know
they are taking medications until they are told so is clearly
state circuit court adjudicated Ground One as follows:
Defendant now brings four grounds alleging ineffective
assistance of counsel. To prevail on these claims, Defendant
must establish that counsel's performance was both
deficient and prejudicial. See Spera v. State, 971
So.2d 754, 757 (Fla. 2007) (outlining standard enunciated in
Strickland v. Washington, 466 U.S. 668 (1984)).
Based on this legal framework, the Court will analyze
Defendant claims that counsel should have requested that the
hearing be continued because she originally answered no to
the Court's question of whether she was under the
influence of alcohol, drugs, or medication. The remainder of
the colloquy regarding Defendant's mental state refutes
this claim. Under oath Defendant affirmed her attorney's
explanation to the Court that she was clear headed and had
her medications well adjusted. Exh. 1 - pp. 4-5. As
such, there was no basis for counsel to seek a continuance.
Defendant cannot go behind her statements made under oath and
the plea hearing. Davis v. State, 938 So.2d 555, 557
(Fla. 1st DCA 2006). This claim is denied.
transcript of Petitioner's plea colloquy is part of the
state court record. Contrary to Petitioner's assertions,
her statements during the colloquy did not indicate she was
MR. CUMMINGS [defense counsel]: . . . At this time, Ms.
Bryant is prepared to withdraw her previously entered written
pleas, tender to the court a plea of no contest as charged to
second degree murder. The State has agreed to waive the PRR
[Prison Releasee Reoffender enhancement].
The agreement is for 45 years Department of Corrections,
credit for 310 days served, whatever the court costs are, and
I believe a PD fee of $100.
THE COURT: . . . Is that your understanding of what
you're doing, Ms. Bryant?
THE DEFENDANT: Yes, sir. . . . .
THE COURT: Would you swear the defendant, please?
THE COURT: State your name for the record, please.
THE DEFENDANT: Cynthia Bryant.
THE COURT: And, Ms. Bryant, are you currently under the
influence of any alcohol, drug, or medication?
THE DEFENDANT: No.
THE COURT: It was my understanding you are taking some
THE DEFENDANT: I took the medication this morning.
THE COURT: All right. Well, that's what we're trying
to discuss. Have you taken anything other than what's
been prescribed for you by a doctor?
THE DEFENDANT: No, sir.
THE COURT: Is that medication interfering with your ability
to understand what's ...