United States District Court, M.D. Florida, Orlando Division
ANTOON II UNITED STATES DISTRICT JUDGE
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.
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).
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
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. (Doc. 14-1 at
56-59; 14-4 at 116).
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).
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.
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).
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).
Standard of Review Under the Antiterrorism Effective Death
Penalty Act ("AEDPA")
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;
(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).
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." Parker v. Head, 244 F.3d 831, 835
(11th Cir. 2001), citing Wi7Ziams, 529 U.S. at 410.
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. §
Standard for Ineffective Assistance of Counsel
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).
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
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.
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). 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. (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 ...