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Clumm v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Orlando Division

August 27, 2019

DONALD MERRILL CLUMM, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.

          ORDER

          JOHN ANTOON II UNITED STATES DISTRICT JUDGE

         Donald Merrill Clumm ("Petitioner") filed a Petition for Writ of Habeas Corpus ("Petition," Doc. 1) pursuant to 28 U.S.C. § 2254, alleging seven claims for relief based on ineffective assistance of counsel at trial in violation of the Sixth Amendment to the United States Constitution. Petitioner also filed a supporting Memorandum of Law (Doc. 3). Respondents filed a Response to Petition ("Response" Doc. 13) and a Supplemental Response to Petitioner ("Supplemental Response" Doc. 21) in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner filed a Reply (Doc. 27) to the Response and Supplemental Response. For the following reasons, the Court concludes that Petitioner is not entitled to relief on his claims.

         I. Procedural Background

         The state trial court sentenced Petitioner to 4 years of incarceration and 6 years of probation for the offense of aggravated battery in Seminole County, Florida on January 4, 2010. (Doc. 14-1 at 30; case number 2008CF005107A). Judge Marlene Alva presided over this proceeding. (Id. at 28). Petitioner was released to probation on January 23, 2012. (Id. at 41). On April 13, 2012, while on probation, Florida's Department of Corrections filed an affidavit of violation of probation alleging that Petitioner had violated the conditions of his probation in three ways, the most serious violation being committing the criminal offense of burglary of a conveyance. (Id. at 41-42).

         Petitioner made his first appearance on the violation of probation on April 13, 2012. (Id. at 40). On May 14, 2012, the state filed an information charging Petitioner with a new substantive offense for the burglary of a conveyance (Count One). (Id. at 68). This new offense was assigned case number 12CF1095A. At Petitioner's violation of probation arraignment on May 29, 2012 before Judge Kenneth Lester, the violation was consolidated with case number 12CF1095A. (Id. at 44). The parties agreed to this consolidation.[1]

         The case proceeded to trial before Judge Lester on August 29, 2012 and a jury found Petitioner guilty of a burglary of a conveyance. (Id. at 117). The trial court adjudicated Petitioner guilty of that offense (Doc. 14-3 at 324) and then found Petitioner in willful violation of his probation on the aggravated battery charge. (Id. at 325; Doc. 14-1 at 50). On October 10, 2012, the trial court sentenced Petitioner as a violent career criminal to a term of fifteen years imprisonment for the burglary of a conveyance offense. (Doc. 14-1 at 56, 125-28). The trial court also sentenced Petitioner to a term of fifteen years imprisonment for the violation, to be served consecutively to the sentence imposed for the burglary offense.[2] (Doc. 14-1 at 56-59; 14-4 at 116).

         Petitioner filed an appeal of the October 10, 2012 order adjudicating Petitioner guilty and imposing the sentences for the burglary offense and the violation with Florida's Fifth District Court of Appeal. (Doc. 14-2 at 58). The Fifth District Court of Appeal affirmed per curiam. (Doc. 14-4 at 94).

         Petitioner next filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), which the trial court granted only to the extent that the violent career criminal designation was stricken from the sentencing order as to the violation of probation. (Doc. 14-5 at 43-51). The Fifth District Court of Appeal affirmed per curiam. (Id. at 65).

         Petitioner then filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which the trial court denied. (Doc. 14-4 at 97-119). Petitioner appealed the denial, and the Fifth District Court of Appeal affirmed per curiam. (Doc. 14-5 at 35).

         Finally, Petitioner filed a second Rule 3.850 motion, which the trial court dismissed as an abuse of process. (Id. at 72-111). The Fifth District Court of Appeal affirmed per curiam. (Id. at 132).

         II. Legal Standards

         A. Standard of Review Under the Antiterrorism Effective Death Penalty Act ("AEDPA")

         Pursuant to the AEDPA, federal 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; or
(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.

28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

         "[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application7 clauses articulate independent considerations a federal court must consider” Maharaj v. Secretary for Def't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was described in Williams:

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 413. Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable."[3] Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001), citing Wi7Ziams, 529 U.S. at 410.

         Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

         B. Standard for Ineffective Assistance of Counsel

         The Supreme Court decision applicable to an ineffective-assistance claim is Strickland v. Washington, 466 U.S. 668 (1984). See Premo v. Moore, 562 U.S. 115, 121 (2011). To make a successful claim of ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. In determining whether counsel gave adequate assistance, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment" Id. at 690. Counsel's performance is deficient only if it falls below the wide range of competence demanded of attorneys in criminal cases. See Id. at 687-88. To make such a showing, a defendant must demonstrate that "no competent counsel would have taken the action that his counsel did take." United States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003) (quotation omitted).

         Prejudice is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "Conclusory allegations of ineffective assistance are insufficient." Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) (quotation omitted). In light of the general principles and presumptions applicable to a claim of ineffective assistance of counsel, the cases in which a habeas petitioner can prevail are "few and far between” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc).

         III. Analysis

         A. Claim One

         Petitioner claims trial counsel was ineffective for failing to advise him "of the maximum prison exposure he faced if he refused the State's plea offer” (Doc. 1 at 5). According to Petitioner, he would have accepted the State's plea offer if he had known that the rejection thereof "exposed him to 30 years in prison." (Id. at 6). It does not appear that this claim was raised with the state courts and, thus, it is procedurally defaulted. However, Petitioner argues that this claim should be considered pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).[4]

         In this case, the trial court held a Pretrial Conference on August 16, 2012, which appeared to involve the burglary of a conveyance case (Case Number 2012-CF-1095) and the violation of probation case (Case Number 2008-CF-5107).[5] At the Pretrial Conference, the State informed the trial court that Petitioner qualified as a "violent career criminal" and that it had made a plea offer of ''seventy months prison" (Doc. 14-4 at 3-4). The State noted that there was a minimum mandatory sentence of ten years' imprisonment. (Id.). The State also filed in open court a Notice of Intention to Seek Sentencing As Violent Career Criminal ("Notice"), which was served on Petitioner.[6] (Doc. 14-1 at 76; Doc. 14-4 at 4). The Notice revealed a "Maximum Prison Exposure" of "15 Years Prison" and a minimum mandatory sentence of "10 Years Prison." (Doc. 14-1 at 76). There is no indication from the record that Petitioner was ever advised by ...


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