United States District Court, S.D. Florida
Honorable Lisette M. Reid Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
BLOOM UNITED STATES DISTRICT JUDGE
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.  (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.  and
. 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. . 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.
. 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)).
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.
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
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
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
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.
foregoing reasons, it is ORDERED and
ADJUDGED as follows:
Magistrate Judge Reid's Report and Recommendation,
ECF No. , is ADOPTED;
Petitioner's Petition, ECF No. , is
Petitioner's Objections, ECF No. , ...