United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
December 5, 2016, the Court received Petitioner Wilder's
petition under 28 U.S.C. § 2254 for writ of habeas
corpus by a person in state custody. Dkt. 1. He filed an
Amended Petition on December 20, 2016. Dkt. 5. Petitioner
seeks relief from a 2014 Florida state court revocation of
community control. Id. at 1. Respondents have filed
a response in opposition, Dkt. 9, to which Petitioner
replied, Dkt. 13. The Court finds that no hearing is
necessary and DENIES the petition.
and 2013, Petitioner was charged in Citrus County for six
felony and two misdemeanor offenses in three separate
cases. Pursuant to a global plea agreement,
Petitioner was adjudicated guilty of the charges, sentenced
to time served, placed on five-year drug offender probation,
and his driver's license was suspended for two years.
Dkt. 10-1 at 177-80. The sentencing scoresheet showed two
prior scorable felonies and five prior scorable misdemeanors.
Dkt. 10-3 at 77-79. Upon affidavits of Petitioner's
violation of the conditions of probation filed in late 2013,
the court revoked probation and imposed two years of
community control followed by three years of drug offender
probation. Dkt. 10-2 at 20.
next year, affidavits supporting a violation of community
control for an incident of driving without a license were
filed. Dkt. 10-2 at 28-32. Following the denial of a motion
to suppress and the presentation of law enforcement
testimony, the court found the violation proved by a
preponderance of the evidence and beyond a reasonable
doubt. Dkt. 10-1 at 123. Petitioner also
admitted to the violation. Dkt. 10-1 at 112. The court
revoked Petitioner's community control and sentenced him
to sixty years' incarceration. Id. at 139. The
sixty-year sentences were concurrent terms based upon the two
first-degree felonies (which were punishable by life in
appealed the revocation and sentence to the District Court of
Appeal for the Fifth District of Florida (Fifth DCA). Dkt.
10-5 at 4. Petitioner voluntarily dismissed the appeal after
his attorney filed an Anders brief. Id.
at 4, 26. Petitioner then filed, through counsel, a 3.850
motion for postconviction relief arguing an involuntary plea
and ineffective assistance of counsel. Dkt. 10-5 at 57. The
postconviction court denied the motion and the subsequent pro
se motion for rehearing without an evidentiary hearing. Dkt.
10-5 at 34, 41. The Fifth DCA affirmed the denial. Dkt. 10-5
acknowledges that the petition is timely and its one claim
exhausted. Dkt. 9 at 4-5. Petitioner claims that his
admission of the violation of community control was
unlawfully induced, involuntary, and unknowing of the charges
and consequences of the plea, and that he suffered related
ineffective assistance of counsel.
petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). AEDPA
“establishes a highly deferential standard for
reviewing state court judgments, ” Parker v.
Sec'y for Dep't of Corr., 331 F.3d 764, 768
(11th Cir. 2003) (citation omitted), that does not allow
relief from a state court conviction on a claim
“‘that was adjudicated on the merits in the State
court proceedings' unless the state court's decision
was ‘(1) . . . contrary to, or involved an unreasonable
application of, clearly established Federal law as determined
by the Supreme Court of the United States; or (2) . . . based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,
'” Nejad v. Attorney Gen., State of Ga.,
830 F.3d 1280, 1288 (11th Cir. 2016) (quoting 28 U.S.C.
established Federal law” means holdings of the U.S.
Supreme Court “as of the time of the relevant
state-court decision.” Id. at 1288-89
(citation omitted). “Contrary to” requires a
state court conclusion “opposite to that reached by
[the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme Court] has
on a set of materially indistinguishable facts.”
Id. at 1289 (citations omitted) (alterations in
original). The “unreasonable application” clause
applies only “if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Id.
(citation omitted) (alterations in original).
court's factual determination, meanwhile, “is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first
instance.” Id. (citation omitted). AEDPA
“requires federal habeas courts to presume the
correctness of state courts' factual findings unless
applicants rebut this presumption with ‘clear and
convincing evidence.'” Id. (citation
omitted). This is a “demanding but not insatiable
standard, requiring proof that a claim is highly
probable.” Id. (citation and internal
quotation marks omitted).
is ineffective under the Sixth Amendment if “(1)
counsel's performance was deficient; and (2) the
deficient performance prejudiced the defense such that
petitioner was deprived of a fair trial.” Dill v.
Allen, 488 F.3d 1344, 1354 (11th Cir. 2007) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
But in the habeas context, “[t]he question is not
whether a federal court believes the state court's
determination under the Strickland standard was
incorrect but whether that determination was unreasonable-a
substantially higher threshold.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (citation and
internal quotation marks omitted). “If there is
‘any reasonable argument that counsel satisfied
Strickland's deferential standard,' then a
federal court may not disturb a state-court decision denying
the claim.” Hittson v. GDCP Warden, 759 F.3d
1210, 1248 (11th Cir. 2014) (citation omitted).
Court finds that a hearing is unnecessary, see Turner v.
Crosby, 339 F.3d 1247, 1274-75 (11th Cir. 2003), and
that habeas relief is unwarranted.
claims that his admission of the violation of community
control was unlawfully induced, involuntary, and unknowing of
the charges and consequences of the plea, and that he
suffered related ineffective assistance of counsel. Dkt. 5 at
10. Specifically, he states that (1) his counsel told him to
reject a State offer of 102 months, (2) he was promised if he
could pay the outstanding restitution his community control
would be reinstated and that, if not, he would face a
sentence of 8.5 years, (3) his counsel did not communicate
with him about the case, and (4) counsel was at the time
under investigation by the Florida Bar and was later
disbarred. Dkt. 5 at 10. Petitioner also faults the
postconviction court for not holding an evidentiary hearing
or including attachments that refuted his claim in its order
denying the 3.850 motion. Id. at 11.
merely reviewing the April 24, 2014 violation of community
control hearing, at which Petitioner was represented by
counsel, demonstrates that habeas relief is unwarranted. The
hearing began with Petitioner admitting his identity, that he
was on community control, and that he was instructed on the
conditions of community control. Dkt. 10-1 at 63. Those
instructions, as confirmed by the testimony of an officer,
included refraining from driving without a license.
Id. at 63-64, 67.
State also called a deputy who was familiar with Petitioner
and his facial and body features. Id. at 71. That
deputy testified he was on duty on February 15, 2014 and
checked that day to see whether Petitioner had a suspended
license. Id. at 72. Later that morning, the deputy
was positioned in front of Petitioner's address
“running radar” on passing cars when he saw a
motorcycle leave the residence. Id. at 74-75. The
motorcycle had no tag. Id. at 78. Shortly after the
deputy was able to recognize Petitioner as the individual
operating the motorcycle, Petitioner did an abrupt U-turn and
returned to his residence. Id. at 77.
deputy conducted a traffic stop when the motorcycle pulled
into the driveway. Petitioner got off the motorcycle, removed
his helmet, and pleaded with the deputy. Id. at 79.
As an explanation, Petitioner told the deputy that he got
into an argument with his wife and did not want to hit her.
Id. This operation of the motorcycle without a
license formed the basis of Petitioner's violation of
community control. There were later statements from
Petitioner's wife that also confirmed Petitioner drove
the motorcycle. Id. at 131.
the court heard the officer's and deputy's testimony,
Petitioner's counsel argued a motion to suppress the
deputy's identification and observations of Petitioner
during the traffic stop. The court denied the motion.
Id. at 104. The court then shifted gears to discuss
Petitioner's violation. Id. at 107. In relevant
COURT: [Petitioner] has not necessarily pled. I don't
want to force him to do anything. I don't want to chill
his constitutional rights. I've now heard, under oath,
that he was on probation.
. . .
That the material terms and conditions of his probation were
lawfully explained to him; that he has been identified by a
law enforcement officer as the same person and has committed
a new law violation . . . even though that case is still
pending in county court. Nonetheless, I've heard now the
-- basically the not even the synopsis. I've heard the
. . .
COURT: At this point right now, if he would want to admit - -
DEFENSE COUNSEL: Absolutely.
COURT: That's all fine and well, but he doesn't
necessarily need to because I've already heard the
Does [Petitioner] want to make any statement under oath
regarding . . . the violation ...