Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wilkes v. Sec'y

United States District Court, S.D. Florida

June 26, 2019

MICHAEL WILKES, Petitioner,
v.
SEC'Y, FLA. DEP'T OF CORR., et al, Respondents.

          Honorable Lisette M. Reid Judge

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BETH BLOOM UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court upon a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, by pro se petitioner Michael Wilkes, ECF No. [1] (the “Petition”). This case was previously referred to the Honorable Lisette M. Reid for a Report and Recommendation on all dispositive matters. See ECF Nos. [2] and [14]. On June 3, 2019, Judge Reid issued a Report and Recommendation recommending that the Petition be denied, that a final judgment be entered, that the request for a certificate of appealability be denied, and the case be closed. ECF No. [15]. The Report and Recommendation advised that objections to the report may be filed with the district judge within fourteen days of receipt of a copy of the report. Id. at 10. Petitioner filed Objections to the Report and Recommendation on June 19, 2 019. ECF No. [16]. The Court has conducted a de novo review of Judge Reid's Report and Recommendation, the Objections, and the record and is otherwise fully advised in the premises. See Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009) (citing 28 U.S.C. § 636(b)(1)).

         In his Petition, Petitioner contends that trial counsel rendered ineffective assistance of counsel by allegedly failing to advise him to accept 17- and 30-year plea offers. A habeas petitioner asserting an ineffective assistance of counsel claim must satisfy a two-prong inquiry: (1) defense counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In the Report and Recommendation Judge Reid concluded that Petitioner did not adequately allege that counsel misadvised him as to whether to accept plea offers because Petitioner did not allege any details about any communications he may have had with counsel regarding the plea offers. Thus, Petitioner's allegations were conclusory and do not support a Strickland claim or warrant an evidentiary hearing. As to the second Strickland prong, even had Petitioner adequately alleged that trial counsel misadvised him, Petitioner failed to show that he would have accepted the offers and pled guilty. Judge Reid reasoned that Petitioner's decision to vociferously profess his innocence at trial undercut his conclusory assertion that he would have accepted the plead but for counsel's alleged misadvise.

         In the Objections, Petitioner first states that he stands on the four corners of his ineffective assistance of counsel claim, in that that counsel's omission in failing to advise Petitioner to accept a favorable plea offer was a serious dereliction. However, in the Report and Recommendation, Judge Reid correctly found that the Petitioner did not satisfy the first Strickland prong because Petitioner did not allege any details about any communications with counsel regarding the plea offers. The Eleventh Circuit has explained that the § 2254 Rules

mandate “fact pleading” as opposed to “notice pleading, ” as authorized under Federal Rule of Civil Procedure 8(a). Coupled with the form petition or motion, the federal rules give the petitioner or movant ample notice of this difference. If, for example, Rule 2(c)(1) and (2) of the § 2254 Rules should cause a petitioner (or his counsel) to doubt what the words “specify all grounds” and “state the facts supporting each ground” mean, the CAUTION contained in paragraph (9) of the “Instructions” should remove such doubt. As the Supreme Court has observed, “[h]abeas corpus petitions must meet heightened pleading requirements, see 28 U.S.C. § 2254 Rule 2(c).” McFarland v. Scott, 512 U.S. 849, 856, 114 S.Ct. 2568, 2572, 129 L.Ed.2d 666 (1994).

Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011). Here, Petitioner has failed to allege sufficient facts to demonstrate that trial counsel's performance was deficient. Accordingly, Petitioner's Objection is overruled.

         Petitioner also argues that there is nothing in the record that would conclusively demonstrate that the Petitioner would have rejected the 17-year plea offer had he been properly advised to accept the plea offer by trial counsel. Petitioner turns the burden on its head. Petitioner bears the burden to “establish[] prejudice with respect to counsel's” ineffective assistance. Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991). As in Diaz, here Petitioner “did not establish a reasonable probability that, absent counsel's alleged ineffective assistance, he would have accepted the plea agreement.” Id.

         Finally, Petitioner objects on the basis of the “Martinez v. Ryan exception.Martinez v. Ryan, 566 U.S. 1 (2012) concerns the doctrine of procedural default and is wholly inapplicable here.[1]

         Upon review, the Court finds Judge Reid's Report and Recommendation to be well reasoned and correct. The Court agrees with the analysis in Judge Reid's Report and Recommendation, finds no merit in Petitioner's Objections, and concludes that the Petition must be denied for the reasons set forth in the Report and Recommendation.

         For the foregoing reasons, it is ORDERED and ADJUDGED as follows:

         1. Magistrate Judge Reid's Report and Recommendation, ECF No. [15], is ADOPTED;

         2. Petitioner's Petition, ECF No. [1], is DENIED;

         3. Petitioner's Objections, ECF No. [16], ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.