United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Petitioner Julian Arocho's Petition for Writ
of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) filed
on December 27, 2016. The Secretary of the Department of
Corrections filed her Response in Opposition (Doc. 7) on June
6, 2017. The Petition is fully briefed and ripe for the
April 30, 2010, Petitioner was charged with a four-count
felony indictment for aggravated assault with a firearm,
first degree burglary while armed, grand theft of a motor
vehicle, and possession of a firearm by a minor. (Ex. 1, at
3-4). Petitioner, who was represented by Attorney Robert
Harris, pled guilty to the charges in open court. (Ex. 1 at
89-101). On July 25, 2011, the Honorable Edward Volz, Circuit
Judge for the Twentieth Judicial Circuit Court in and for Lee
County, Florida, sentenced Petitioner to ten years in prison
with ten years of probation upon release. (Ex. 1 at 215-245;
Ex. 2 at 75-78).
moved to withdraw his plea on August 22, 2011, alleging that
he did not fully understand the circumstances surrounding his
plea. Petitioner argued that trial counsel advised him he
would receive the Youthful Offender designation if he would
plea in open court, which did not happen. As a result of
Petitioner's motion, a hearing was held on February 14,
2012. After listening to testimony from Petitioner, trial
counsel, and members of Petitioner's family, the court
denied the request to withdraw the plea. (Ex. 1 at 300-306).
Petitioner appealed the denial to the Second District Court
of Appeal which denied his appeal per curiam. (Ex.
5); Arocho v State, 105 So.3d 529 (Fla. 2d DCA
March 17, 2014, Petitioner moved for post-conviction relief
under Fla. R. Crim P. 3.850. Petitioner's only ground
claimed that he was denied effective assistance of counsel
because trial counsel told him not to accept the State's
offer of seven-years imprisonment and to instead plead in
open to the court. The Post-Conviction Court summarily denied
the motion on February 1, 2016. Petitioner appealed the Rule
3.850 Post-Conviction Court's denial. The Second District
Court of Appeal affirmed the denial per curiam. (Ex.
12 at 1). Mandate issued on December 15, 2016. (Ex. 13).
Petitioner now files the Petition in this Court claiming one
ground for relief. Respondent concedes the Petition is timely
filed and Petitioner's claim has been exhausted.
Effective Death Penalty Act (“AEDPA”)
AEDPA, the standard of review is greatly circumscribed and
highly deferential to the state courts. Alston v. Fla.
Dep't of Corr., 610 F.3d 1318, 1325 (11th Cir. 2010)
(citations omitted). AEDPA altered the federal court's
role in reviewing state prisoner applications in order to
“prevent federal habeas ‘retrials' and to
ensure that state-court convictions are given effect to the
extent possible under law.” Bell v. Cone, 535
U.S. 685, 693 (2002). The following legal principles apply to
federal court must afford a high level of deference to the
state court's decision. Ferguson v. Culliver,
527 F.3d 1144, 1146 (11th Cir. 2008). Habeas relief may not
be granted with respect to a claim adjudicated on the merits
in state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
U.S.C. § 2254(d); Cullen v. Pinholster, 563
U.S. 170, 181(2011). “This is a difficult to meet, and
highly deferential standard for evaluating state-court
rulings, which demands that the state-court decisions be
given the benefit of the doubt.” Id. (internal
quotations and citations omitted). See also Harrington v.
Richter, 562 U.S. 86, 102 (2011) (pointing out that
“if [§ 2254(d)'s] standard is difficult to
meet, that is because it was meant to be.”).
the Eleventh Circuit and the Supreme Court broadly interpret
what is meant by an “adjudication on the merits.”
Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir.
2011). Thus, a state court's summary rejection of a
claim, even without explanation, qualifies as an adjudication
on the merits that warrants deference by a federal court.
Id.; see also Ferguson v. Culliver, 527
F.3d 1144, 1146 (11th Cir. 2008). Indeed, “unless the
state court clearly states that its decision was based solely
on a state procedural rule [the Court] will presume that the
state court has rendered an adjudication on the merits when
the petitioner's claim ‘is the same claim
rejected' by the court.” Childers v.
Floyd, 642 F.3d at 969 (quoting Early v.
Packer, 537 U.S. 3, 8 (2002)).
legal principle is ‘clearly established' within the
meaning of this provision only when it is embodied in a
holding of [the United States Supreme] Court.”
Thaler v. Haynes, 559 U.S. 43, 47 (2010); see
also Carey v. Musladin, 549 U.S. 70, 74 (2006)
(citing Williams v. Taylor, 529 U.S. 362, 412
(2000)) (recognizing “[c]learly established federal
law” consists of the governing legal principles, rather
than the dicta, set forth in the decisions of the
United States Supreme Court at the time the state court
issues its decision). “A state court decision involves
an unreasonable application of federal law when it identifies
the correct legal rule from Supreme Court case law but
unreasonably applies that rule to the facts of the
petitioner's case, or when it unreasonably extends, or
unreasonably declines to extend, a legal principle from
Supreme Court case law to a new context.”
Ponticelli v. Sec'y, Fla. Dep't of Corr.,
690 F.3d 1271, 1291 (11th Cir. 2012) (internal quotations and
citations omitted). The “unreasonable
application” inquiry requires the Court to conduct the
two-step analysis set forth in Harrington v.
Richter, 562 U.S. at 86. First, the Court determines
what arguments or theories support the state court decision;
and second, the Court must determine whether
“fair-minded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior” Supreme Court decision. Id. (citations
omitted). Whether a court errs in determining facts “is
even more deferential than under a clearly erroneous standard
of review.” Stephens v. Hall, 407 F.3d 1195,
1201 (11th Cir. 2005). The Court presumes the findings of
fact to be correct, and petitioner bears the burden of
rebutting the presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
Supreme Court has held that review “is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen, 131 S.Ct. at
1398. Thus, the Court is limited to reviewing only the record
that was before the state court at the time it rendered its
Assistance of Counsel
assistance of counsel claims are reviewed under the standards
established by 28 U.S.C. § 2254(d). Newland v.
Hall, 527 F.3d 1162, 1183 (11th Cir. 2008). Post-AEDPA,
the standard set forth in Strickland v. Washington,
466 U.S. 668 (1984), remains applicable to the claims of
ineffective assistance of counsel raised in this case.
Newland, 527 F.3d at 1184. In Strickland,
the Supreme Court established a two-part test to determine
whether a convicted person is entitled to habeas relief on
the grounds that his or her counsel rendered ineffective
assistance: (1) whether counsel's representation was
deficient, i.e., “fell below an objective
standard of reasonableness” “under prevailing
professional norms, ” which requires a showing that
“counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment”; and (2) whether the
deficient performance prejudiced the defendant,
i.e., there was a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different, which “requires
showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result
is reliable.” Strickland, 466 U.S. at 688;
see also Bobby Van Hook, 558 U.S. 4, 8 (2009);
Cullen v. Pinholster, 131 S.Ct. at 1403 (2011).
may “impose whatever specific rules . . . to ensure
that criminal defendants are well represented, ” but
“the Federal Constitution imposes one general
requirement: that counsel make objectively reasonable
choices.” Bobby Van Hook, 130 S.Ct. at 17
(internal quotations and citations omitted). It is petitioner
who bears the heavy burden to “prove, by a
preponderance of the evidence, that counsel's performance
was unreasonable.” Jones v. Campbell, 436 F.3d
1285, 1293 (11th Cir. 2006). A court must “judge the
reasonableness of counsel's conduct on the facts of the
particular case, viewed as of the time of counsel's
conduct, ” Roe v. Flores-Ortega, 528 U.S. 470,
477 (2000) (quoting Strickland, 466 U.S. at 690),
applying a “highly deferential” level of judicial
scrutiny. Id. A court must adhere to a strong
presumption that “counsel's conduct falls within
the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. An attorney is not
ineffective for failing to raise or preserve a meritless
issue. Ladd v. Jones, 864 F.2d 108, 109-10 (11th
Cir. 1989); United States v. Winfield, 960 F.2d 970,
974 (11th Cir. 1992) (“a lawyer's failure to
preserve a meritless issue plainly cannot prejudice a
client”). “To state the obvious: the trial
lawyers, in every case, could have done something more or
something different. So, omissions are inevitable. But the
issue is not what is possible or ‘what is prudent or
appropriate, but only what is constitutionally
compelled.'” Chandler v. United States,
218 F.3d 1305, 1313 (11th Cir. 2000) (quoting Burger v.
Kemp, 483 U.S. 776, 794 (1987)).
sole ground ...