United States District Court, M.D. Florida, Tampa Division
ROBERT L. DAVIS, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
a Florida prisoner, instituted this action by filing a
petition for writ of habeas corpus under 28 U.S.C. §
2254. Dkt. 1. At the Court's direction, Respondent
responded to Petitioner's petition (Dkt. 19) and filed
relevant portions of the state court record in paper format
(cited as “Resp. Ex.__ ”) (Dkts. 21, 22).
Petitioner asked for and received multiple extensions of time
to file a reply. Dkts. 29, 32. The extended deadline has
passed, and he has not filed a reply. Thus, the matter is ripe for
review. The Court has reviewed the entire record, and, upon
consideration, the Court concludes that the petition is due
to be denied.
State Court Criminal Proceedings
December 11, 2013, Petitioner was charged in case number
13-CF-017145 with burglary of an unoccupied structure (a
second-degree felony) and grand theft (a third-degree
felony). Resp. Ex. 1. On January 7, 2014, Petitioner was
charged in case number 13-CF-18157 with another count of
burglary of an unoccupied structure and another count of
grand theft. Resp. Ex. 2. Petitioner was represented in both
cases by the same attorney. Resp. Ex. 1; Resp. Ex. 2.
February 12, 2014 Hearing
February 12, 2014, Petitioner appeared with counsel before a
state court judge for a status conference. Resp. Ex. 3 at
¶ 118-P124. At the beginning of the hearing,
Petitioner's attorney informed the judge that the defense
would like to set both of Petitioner's cases for trial.
Id. at P121. The judge then asked if there had been
a plea offer. Id. The lead prosecutor on the case
was not present, and the prosecutor who was filling in knew
only that Petitioner was at the “bottom of the
guidelines” of 33.675 months and that it
“look[ed]” like Petitioner was a “habitual
felony offender.” Id. The judge then asked
Petitioner's attorney if the defense wanted a
negotiation, an advisory sentence, or to set the cases for
trial. Id. Petitioner's attorney again stated
that the defense wanted to set the cases for trial.
Id. At that point, the lead prosecutor on the case
arrived at the hearing and said, “The offer's 25.75
months, Your Honor.” Id. at P122. He also told
the judge that the Petitioner was a habitual felony offender.
Id. When the judge asked if there was any room for
negotiation, the lead prosecutor said, “It's
possible if there's a counter offer made with, you know,
mitigation. We'll review it.” Id.
Petitioner's attorney reiterated that the defense would
like to set the case for trial. Id. The Clerk then
set the trial for May 12, 2014. Id.
Letter to Prosecutor
April 2014, Petitioner sent a letter to the prosecutor.
Id. at P134-P136. The letter was entered on the
state court docket on May 5, 2014. Id. at P134. In
the letter, Petitioner attempted to engage in plea
negotiations. The letter reads, in relevant part:
I first would like to apologize to the state for being a
nuisance. I also apologize to the people of [Hillsborough]
County I have harmed directly and or indirectly . . . . When
released from prison I have a positive [attitude] and have
always set out to establish employment, residency, and goals
within God's will. But after several months I was
drinking and subsequ[a]ntly doing drugs. Which has [led] to
me breaking the law and being incarcerated. I know this is
not the first time you have heard a plea for assistance for
an alcohol and drug addiction. But this is a sincer[e] plea
for mental health and drug addiction treatment. For after
doing (13 ½) years in D.O.C. I again find myself
incarcerated [due] to mental health and drug addiction . . .
. [W]hen released from prison . . . I . . . enrolled into a
faith-base[d] drug program called ‘New Beginning'.
Unfortunately I was kicked out of the program for selling
beer after the 3rd quarter when working concession
stand voluntarily for New Begin[n]ings during Bucs games. I
still need help.
The last plea offer the State offered is 27 months D.O.C. and
I appreciate a offer that gives me a chance at freedom. But
if you just send me to prison I am likely to fall again. I am
begging for a 2-years split sentence. One year to be
served in the county jail, followed by one-year probation.
For the purpose of successfully completing a drug program.
Id. at P134-P135 (emphasis in original).
May 8, 2014 Hearing
6, 2014, the prosecution filed notices in both cases stating
that it intended to seek an enhanced sentence because
Petitioner was a habitual felony offender. Resp. Ex. 1
(docket entry #26); Resp. Ex. 2 (docket entry #74); Resp. Ex.
3 at ¶ 23.
8, 2014, Petitioner appeared in court with his attorney. It
appears that, at that point, the prosecution had made an
offer that was “bottom of the guidelines” or
33.675 months in state prison. Resp. Ex. 3 at ¶ 128;
see also Id. at P130 (stating that 33.675 months is
“bottom of the guidelines”). A few days earlier,
the judge had given Petitioner an advisory sentence, but
Petitioner did not hear the advisory sentence because it was
made to counsel from the bench. Thus, at the May 8 hearing,
Petitioner's attorney asked the judge to give Petitioner
another advisory sentence-this time so that Petitioner could
hear it. Id. at P128. Petitioner then asked to
address the court and said (referring to himself as
The Defendant wanted to resolve this case. I just wanted to
inform you that the reasons that the case probably hasn't
been resolved, is Defendant is requesting a split sentence.
The reason why is he has a long history of mental health and
. . . doing very stupid and petit crimes, and the reason for
that is he has a drug problem, and he's been requesting
drug treatment for a while.
Id. at P129. The judge then gave Petitioner an
advisory sentence and said, “If you enter a plea to
these charges, I will go to the bottom of the guidelines on
it, which is 33.675 months Florida State Prison.”
Id. at P130. Petitioner asked if it could contain a
split sentence, and the judge said, “No, it's a
prison sentence . . . . I'm not going to split based on
what I heard and what I decided.” Id. at P131.
The court then recessed. When Petitioner returned to court
later that day, his attorney told the Court, “Your
Honor, after this morning, I have attempted talking to
[Petitioner]. He's completely stopped speaking to me at
this point. So in the absence of him telling me he wants to
accept any type offer, I would say that we're keeping it
set for trial.” Id. at P132.
May 12, 2014 Hearing and Guilty Plea
12, 2014, Petitioner appeared in court with his attorney on
the scheduled trial date. Id. at P70-P117. Before
the court could proceed with jury selection, Petitioner told
the judge that he wanted to terminate his attorney.
Id. at P73. The judge then proceeded to hold a
Nelsonhearing. Id. at P74. Among
other things, Petitioner complained about his attorney's
conduct at the February 12 hearing. Specifically, he
complained that, after the prosecution made a “27 month
offer” and indicated that there was room for
negotiation, his attorney did not negotiate even though he
had previously “told [his] counsel that [he] was . . .
interested in negotiating a plea offer” and that he
“would like to resolve the case.” Id. at
P76-P77, P78. The following exchange then occurred:
[PETITIONER]: Before I go on, I believe that her
discouragement saying that I should wait until later on, that
I would probably get a better offer-
THE COURT: Are you saying that your lawyers advised you to
wait till later to get a better offer?
[PETITIONER]: That's what she said. And I believe she
said that just because she didn't want me to receive that
type of offer. She . . . told me that I have a habit of
wanting to get the kind of sentence I want. She told me that
I have a problem of . . . wanting to get the type of sentence
I want . . . . I think . . . she believes that I have a
reputation of . . . wanting to go to trial until I get what I
Id. at P78-P79.
judge then asked Petitioner's attorney for her side of
the story. As to Petitioner's allegations about the
February 12 hearing, she said:
The State had provided a scoresheet to me where [Petitioner]
was scoring out to a little over 24 months, and [t]he State
had indicated that they would make that offer to him on that
day only. The prosecutor had said that he was waiting on some
more certified convictions to add to his prior record on the
scoresheet which would cause his score to go up. So that is
why they were offering for that day only. I conveyed that
offer to [Petitioner]. He told me, he did not want to accept
it. I did tell him that it was a one-day-only offer and that
was his only day to accept it . . . . So that is what I told
the Judge, that he wished to reject the offer; and that is
when we set the case for trial.
Id. at P87-P88. When asked about Petitioner's
claim that he had told his attorney that he wanted to resolve
the case, she said:
He has told me that multiple times. However, he has not
wished to accept any of the offers that were made, and I have
made counteroffers on his behalf which were not accepted by
Id. at P88. When asked if it was true that she
advised him not to accept the offer and wait for a better
offer, she said:
I advised that we set the case for trial since he did not
want to accept the current offer. And at that time he
indicated to me that he agreed and that he wanted to
continue, you know, negotiating as we moved forward.
Id. at P88-P89.
judge then denied Petitioner's request to discharge his
counsel. As relevant here, the judge made the following