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Lewis v. Inch

United States District Court, N.D. Florida, Gainesville Division

September 13, 2019

LACY E. LEWIS, Petitioner,
v.
MARK S. INCH, [1] Respondent.

          ORDER AND REPORT AND RECOMMENDATION

          HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Petitioner Lacy E. Lewis's (“Lewis”) petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF Doc. 1. Respondent filed a response (ECF Doc. 19) and Lewis filed a reply (ECF Doc. 21). The matter was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). As explained further below, Lewis has asserted one ground for relief - that his trial counsel was ineffective for advising him that consent to enter by the owner, rather than the consent of a tenant, was sufficient to defeat a burglary charge. As discussed further below, it is unclear, however, whether Lewis's claim is that counsel's mis-advice deprived him of a fair trial or deprived him of effective counsel when considering whether to take the State's proffered 5-year plea, or both. Thus, both claims are addressed herein, and for the reasons set forth below, the undersigned recommends the Petition be DENIED without an evidentiary hearing.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On April 21, 2011, Lewis was convicted by a jury of aggravated stalking and burglary of a dwelling - a single-family home at 1118 SE 19th Street in Gainesville, Florida (“the 19th Street house”). ECF Doc. 19-1 at 38, 61. The 19th Street house was owned by Lewis's older sister and her husband, Harry and Wanda Cobb. Id. at 32. Although the Cobbs owned the house, they did not live there. Rather, Debra Baker, Lewis's other sister, lived in the house. Id. at 127.

         The events leading to Lewis's arrest are as follows. On the evening of April 24, 2010, Baker and her boyfriend arranged to go to dinner with Lewis and Lewis's then girlfriend. Id. at 36. When the two couples arrived at the restaurant, a verbal altercation between Baker and Lewis occurred in the parking lot. Id. 19-2 at 38, 157-58. Lewis abruptly left in his girlfriend's car. Id.

         Later that evening, after Baker got a ride from her daughter from the restaurant and got the girlfriend back to her car, Baker discovered Lewis had left her several disturbing voice messages on her cell phone. Before returning to the 19th Street house, Baker called the Alachua County Sheriff and was told that a deputy would meet her at the house. Id. at 44. When she arrived at the 19th Street house, she noticed the door was ajar, and she could not lock it. Id. at 45. She noticed the screen to one of the windows was pulled back and a footprint was still on the door. Id. After noticing that one of Lewis's voice mail messages came from a number inside the home, she realized it was Lewis who had broken into the house at some point in the night. Id.

         Lewis was charged by information on July 1, 2010, with aggravated stalking, trespass in a structure or conveyance, and criminal mischief (for damaging the door and window screen). ECF Doc. 19-1 at 25-26. On July 20, 2010, the State filed notice that Lewis was going to be charged as a prison releasee reoffender (“PRR”). Id. at 36. Represented by public defender AuBroncee Martin, Lewis entered a plea of not guilty on July 29, 2010. Id. at 37. On December 22, 2010, an amended information was filed, increasing the charge on count II to burglary of a dwelling rather than trespass of a structure or conveyance. Id. at 38. Lewis was arraigned on the amended information and informed in open court of the burglary charge and possible sentence on January 12, 2011. ECF Doc. 19-9 at 223.

         Lewis's jury trial was held on April 21, 2011. ECF Doc. 19-2 at 1. After deliberations, the jury found Lewis guilty of both the aggravated stalking and burglary charges. Lewis was convicted and sentenced to five years for aggravated stalking, to run concurrently with the mandatory-minimum 15-year sentence on the burglary of a dwelling charge. ECF Doc. 19-2 at 65-66. Lewis appealed on May 11, 2011, and the First DCA affirmed, per curiam, [2] on April 16, 2012, and the mandate was issued on May 2, 2012. ECF Doc. 19-6.

         Lewis filed a motion for postconviction relief under Fla. R. Crim. P. 3.850 on July 5, 2012, which contained six grounds for relief. ECF Doc. 19-7 at 23-49. In Ground Four he argued trial counsel's “advice that consent from landlord was a viable and coherent defense to burglary was erroneous based on the law of the case …[and] [f]ailure to advise Defendant on applicable law precluded defendant from accepting five year plea offer from State.” Id. at 39. The state court summarily denied the motion on August 20, 2014. Id. at 211. Lewis appealed, id. at 362, and the First DCA affirmed on all the grounds except Ground Four. ECF Doc. 19-8 at 2-3. The First DCA remanded Ground Four to the state court for an evidentiary hearing. Id. at 3.

         On August 24, 2015, the state court held an evidentiary hearing at which Lewis and his two trial attorneys testified. ECF Doc. 19-9 at 208. On August 31, 2015, the state court denied relief on Ground Four by written order, finding that Lewis was unable to show he would have taken the government's plea offer even had his counsel correctly stated the law as to the owner of a property for purposes of a burglary. Id. at 53. Lewis was allowed to file a belated notice of appeal on November 17, 2016, id. at 206, and filed the Notice of Appeal on December 15, 2016. Id. at 207. The First DCA affirmed the denial of Ground Four, per curiam, [3]without opinion, on January 10, 2018. ECF Doc. 19-13 at 1. The mandate was issued on February 7, 2018. Id. at 3. Lewis delivered the instant petition to prison mail officials on May 15, 2018. ECF Doc. 1 at 13.

         II. LEGAL STANDARDS

         A. Federal review of state court decision

         Under the standard of review for a § 2254 motion, this Court is precluded from granting habeas relief unless the state court's decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, ” or (2) “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 United States Supreme Court set forth the framework for a § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000). See id., at 412-13 (O'Connor, J., concurring). Under the Williams framework, a federal court must first determine the “clearly established Federal law, ” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” See Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). The law is “clearly established” only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. See Thaler v. Haynes, 559 U.S. 43, 47 (2010). Once the governing legal principle is identified, the federal court must determine whether the state court's adjudication is “contrary to” the identified governing legal principle or the state court “unreasonably applie[d] that principle to the facts of the [] case.” See Williams, 529 U.S. at 412-13 (O'Connor, J., concurring). Even if a federal court concludes the state court applied federal law incorrectly, habeas relief is appropriate only if that application was “objectively unreasonable.” See Maharaj v. Sec'y Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).

         Finally, in determining whether the state court's decision “was an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” the state court's determination of factual issues is presumed correct. See Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001). The burden is on the petitioner to rebut that presumption of correctness by clear and convincing evidence. See Id. at 835-36; 28 U.S.C. § 2254(e)(1); see also, Siplen v. Sec'y, Fla. Dept. of Corr., 649 Fed.Appx. 809, 811 (11th Cir. 2016). Additionally, this Court must accept the state court's credibility determinations. See Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) (“We must accept the state court's credibility determination and thus credit [counsels'] testimony over [petitioner's].”); see also, Consalvo v. Sec'y for Dept. of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (“[d]etermining the credibility of witnesses is the province and function of the state courts, not a federal court engaging in habeas review”).

         B. Standards for an Ineffective Assistance of Counsel Claim

         A claim of ineffective assistance of counsel requires a showing that (1) counsel's performance during representation fell below an objective standard of reasonableness, and (2) prejudice resulted, i.e., that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 689 (1984). The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. Id. at 689. The defendant bears the burden of proving that counsel's performance was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Id. at 688-89

         Strickland's prejudice prong requires a petitioner to allege more than simply that counsel's conduct might have had “some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. The petitioner must show a reasonable probability exists that, “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Bare allegations that the petitioner was prejudiced by counsel's performance are not enough. Smith v. White, 815 F.2d 1401, 1406-07 (11th Cir. 1987).

         A defendant's Sixth Amendment right to counsel “extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012) (citing Missouri v. Frye, 566 U.S. 133, 138 (2012), and McMann v. Richardson, 397 U.S. 759, 771 (1970)). “If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Lafler, 566 U.S. at 168. Thus, the two-part test articulated in Strickland applies to claims that counsel was ineffective during plea negotiations. See Id. at 163 (applying Strickland's two-part test to federal habeas petitioner's claim that counsel was ineffective for advising him to reject a plea offer).

         In the context of a rejected plea offer, a petitioner must show that “but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.” Id. at 163-64.

         III. ANALYSIS

         As stated above, Lewis raises one ground for relief in his petition, that his trial counsel was ineffective for misadvising him that consent from the owner/landlord was a viable defense to the burglary charge. In his 3.850 motion, Lewis framed the issue as resulting in his rejection of the State's 5-year plea offer. In the instant petition, Lewis continues to argue that “[b]ased on the misadvice of Petitioner's Attorney, Petitioner believed he had an absolute right to enter the home and reject every plea offer, ” but adds “the core issue of Petitioner's claim is not the rejection of the plea offer, but the guaranteed Sixth Amendment right to effective assistance of counsel.” Id. at 8. Lewis further states that “trial counsel erroneously pursued an illegal defense during the trial proceeding.” Id. Therefore, as an initial matter, and out of an abundance of caution, the undersigned addresses both claims and finds the claim Lewis was denied a fair trial should be dismissed because it was not presented to the state court and is procedurally barred, and the claim he was denied effective assistance of counsel as to the plea offer should be dismissed on the merits.

         A. Lewis Failed To Exhaust His Claim That He Was Deprived of an Unfair Trial

         Before filing a habeas petition in federal court, a petitioner must exhaust all available state court remedies. 28 U.S.C. § 2254(b), (c). A failure to exhaust occurs “when a petitioner has not fairly presented every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review.” Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (internal quotation marks and brackets omitted). The key question for exhaustion is whether Lewis “fairly presented” this issue to the state courts. As the Eleventh Circuit has explained:

It is not sufficient merely that the federal habeas petitioner has been through the state courts ... nor is it sufficient that all the facts necessary to support the claim were before the state courts or that a somewhat similar state-law claim was made. Rather, in order to ensure that state courts have the first opportunity to hear all claims, federal courts have required a state prisoner to present the state courts with the same claim he urges upon the federal courts. While we do not require a verbatim restatement of the claims brought in state court, we do require that a petitioner presented his claims to the state court such that a reasonable reader would understand each claim's particular legal basis and specific factual foundation.

McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005) (internal citations and quotations omitted).

         1. Lewis Did not Fairly Present this Issue to the State Court

         Upon review, the undersigned finds that Lewis did not fairly present the argument he was deprived a fair trial to the state court in his rule 3.850 motion. As set forth above, the sole issue Lewis raised in Ground Four (a/k/a Ground D) of Lewis's 3.850 motion was that his counsel's misadvice resulted in him not taking the 5-year plea deal. In the bolded heading for Ground Four, Lewis states, “Failure To Advise Defendant On Applicable Law Precluded Defendant From Accepting Five Year Plea Offer From State.” ECF Doc. 19-17 at 39. Additionally, Lewis begins the “argument on the merits” section by stating, “[t]o establish prejudice after Defendant has rejected an offer to plead guilty, Defendant must establish a reasonable probability that, absent counsel's alleged ineffective assistance, he would have accepted the plea agreement, Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991).” Id. at 40. Lewis further states, “[t]his claim demonstrates counsel's failure to understand the law in relation to the defendant rejecting a five year prison sentence.” Id. at 41. He ends his merits argument with “[a]bsent counsel's error, the defendant would have accepted the state's five year plea deal. Absent counsel's error, there is a reasonable probability that the result of the proceeding would have been different.” Id. at 43. Nowhere in Lewis's motion does he contend that counsel's misadvice deprived him of a fair trial.

         When the Eleventh Circuit remanded the issue for an evidentiary hearing, the court stated as follows:

In ground four of his motion, Appellant alleged that prior to trial he turned down a five-year plea offer on the advice of counsel, who allegedly told him that he could not be convicted of burglary because he had the consent of the owner to enter the house. However, the owner for purposes of the burglary statute, from whom consent must be obtained, is the tenant who occupies the burglarized premises. Appellant alleged he would have taken the five-year plea offer had he been advised that consent from the non-occupying homeowner was not a defense to the charge. Because there is nothing in the record which refutes Appellant's allegations of misadvice or prejudice, we reverse and remand the denial of ground four for an evidentiary hearing.

ECF Doc. 19-9 at 35-36. Thus, the focus of the evidentiary hearing was the advice given to Lewis regarding consent and the reason Lewis declined the State's offer. There was no testimony elicited regarding whether Lewis was deprived a fair trial. There was no argument made by the parties regarding whether Lewis was deprived of a fair trial. In closing argument, the State framed the issue as “whether or not the defendant knew he could've been convicted of burglary even with his defense, and that if he were convicted of burglary he would get 15 years. If he took the plea in lieu of going to trial, he would've gotten five years PRR.” Id. at 275. Likewise, Lewis's counsel argued “had Mr. Lewis known that he could not get the permission, and did not have the permission, and could not get the permission of the landlord, but he had to get the permission of the tenant, which he obviously knew he did not have, then the case probably would have ended in a plea, Your Honor. The fact that he relied to his detriment, is ...


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