United States District Court, M.D. Florida, Ocala Division
J. DAVIS UNITED STATES DISTRICT JUDGE.
Efrain Camarill Cruz, a former detainee of the Citrus County
Jail, proceeds on a petition for writ of habeas corpus under
28 U.S.C. § 2254, filed by counsel (Doc. 1; Petition).
Petitioner challenges a 2013 Citrus County judgment of
conviction. Respondents filed a response (Doc. 12; Response),
and Petitioner’s counsel replied (Doc. 22;
raises three grounds for habeas relief: (1) his guilty plea
was not voluntary because of his mental illness, or
alternatively, the ineffective assistance of counsel for
failure to argue Petitioner was incompetent to enter a guilty
plea and for failure to request a competency hearing under
the Florida Rules of Criminal Procedure; (2) the ineffective
assistance of counsel for failure to move to dismiss count
four of the indictment; and (3) his convictions and sentence
under Florida Statutes sections 847.0135(3)(a) and (4)(a)
violate double jeopardy principles. Petition at 10, 17, 18.
a Mexican citizen, was convicted on August 19, 2013, and
sentenced to serve 90 days in the county jail followed by
three years of probation with possible deportation. Petition
at 1. As of the date of this Order, Petitioner completed his
sentence. However, when Petitioner filed his Petition, on
August 19, 2016, he met the “custody” requirement
under § 2254 because his probationary term had not
expired. Id. It appears Petitioner faces a possible
collateral consequence related to his conviction because he
alleges he was subject to deportation as a result.
was arrested on June 22, 2012, following an undercover
operation. Ex. A at 27. According to the probable cause
affidavit, Petitioner used his “email account to
seduce, solicit, lure or entice or attempt to seduce,
solicit, lure or entice a parent of a child to commit any
illegal sex act.” Id. at 28. An undercover
agent, Deputy Phil Graves, posing as an adult single mother,
posted an advertisement online, titled “ready for
training–W4M.” Id. That same day,
Petitioner responded to the advertisement using an online
email service. Id. Deputy Graves responded
immediately and identified the child as a 13-year-old girl.
Id. Petitioner exchanged numerous text messages with
whom he thought was the parent of the child. Id. The
two also exchanged pictures through email. Id.
Petitioner spoke by phone with the supposed parent and the
supposed daughter, talking to the daughter about engaging in
sex acts with her. Id. at 28-29. Deputy Graves
provided Petitioner an address and the two arranged to meet.
Id. at 29. When Petitioner arrived, officers
arrested him, confiscating two cell phones and a thumb drive
device, each of which was believed to contain pertinent
information. Id. at 59, 66. After being read his rights,
Petitioner stated he made a mistake. Id.
16, 2012, Petitioner was charged by Information with four
counts: (1) use of the internet or device to lure a child
identified as Tiffany Wright; (2) use of the internet or
device to lure the parent of a child; (3) traveling to meet a
minor, identified as Jenny,  for illegal sexual conduct; and
(4) attempted lewd/lascivious battery on a child identified
as Jenny. Id. at 38.
August 19, 2013, Petitioner entered a guilty plea as
“an open plea to the Court, ” not as a result of
a plea negotiation with the prosecutor. Id. at 3, 4.
After Petitioner was sworn in, Petitioner’s attorney,
Mr. Grant, informed the trial judge he spoke with Petitioner
prior to the proceedings to explain the terms of the plea,
including the sentence:
MR. GRANT: Mr. Cruz, Judge, for the record, reads and writes
English, is extremely articulate. He, in addition to that,
Your Honor, did acquire his GED and one year of college.
He’s been in the United States for 16 years. I have,
Judge, in this case, we have not taken any depositions . . .
because Mr. Cruz, through the decision-making process, has
agreed to take the deal that the State of Florida –
well, that the court is going to offer.
Specifically, Your Honor, we discussed it, I gave him my
professional opinion, the likelihood of success at trial
which was limited in this case. There are post-Miranda
admissions written and oral. There were text messages, there
were – the government had a very strong case
I want to make sure that I have advised Mr. Cruz that as a
foreign national, it is my opinion that he will be deported
from the United States upon . . . entering of the plea of
I want to make it abundantly clear that my client understands
that, is prepared to go to Mexico if the United States
government does, in fact, deport him.
Id. at 5-6.
Mr. Grant also informed the judge the following:
Your Honor, we have discussed that [my client is] waiving his
right to a jury trial, waiving the right to confront
witnesses, waiving his right to an appeal other than for any
legal [sic] sentence, that he has waived – that
he’s going to be getting DNA from the Court, and that
he’s waiving all his other constitutional rights that
relate to a jury trial and the right to confront witnesses
and challenge the witnesses and the evidence that the
government may present against him. In light of that,
we’re here to change our plea today, enter a plea of
guilty, receive 90 days in the Citrus County Jailhouse and
three years standard probation.
Id. at 9.
receiving Mr. Grant’s assurances that Petitioner wished
to enter a guilty plea understanding the implications and
potential consequences, the judge engaged Petitioner in the
THE COURT: Mr. Cruz, you heard your attorney’s
representations. Is that how you want to handle this matter?
THE DEFENDANT: Yes, sir.
THE COURT: Are you presently under the influence of any
alcohol or intoxicant that would negatively affect your good
judgment here today?
THE DEFENDANT: No, sir.
THE COURT: Have you ever been found to be insane,
incompetent, or mentally challenged?
THE DEFENDANT: No, sir.
THE COURT: Okay. Are you comfortable in the English language?
THE DEFENDANT: Yes, sir.
THE COURT: Have you been able to understand everything
I’ve said in English as well as what [your attorney]
has said in English?
THE DEFENDANT: Yes, I did, sir.
THE COURT: Very good. Now, then, Mr. Cruz, you heard about
your situation regarding your immigration status, residency
status, and/or likely deportation status. Do you understand
that this plea could and likely would subject you to
deportation by the federal authorities, you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: [A] guilty plea is one saying that I am guilty of
this offense, that you heard your attorney indicate the
rights you’re giving up. Do you need me to go over each
one of those rights individually like he’s already done
in your presence?
THE DEFENDANT: No, sir.
Id. at 10-11.
trial judge then stated the factual predicate for the plea,
Mr. Cruz, the facts of the case would tell me that on or
about June the 22nd, of 2012 . . . you did knowingly utilize
a computer online service, Internet service, local bulletin
board, or other electronic status storage device to seduce,
solicit, lure, entice a Tiffany Wright believed by you, Mr.
Cruz, to be a child to commit an illegal act as defined by
Florida [laws], this by conversing or chatting or sending
emails or messages to this person.
Id. at 11-12.
judge further explained Petitioner communicated with someone
Petitioner believed to be the parent of the child to solicit
the parent’s consent for the child to participate in an
illegal act. Id. at 12. The judge explained
Petitioner traveled some distance “to conduct sexual
contact with Jenny or Tiffany or somebody else utilizing this
electronic data storage matter, ” and explained:
In other words, you traveled for the purpose of having sex
with Jenny and that further on or about this same date, that
you did attempt to engage in sexual activity with Jenny who
was believed by you to be a person over the age of 12 but
less than 16, this [sic] by attempting to have sexual contact
. . . .
Id. at 13.
setting forth the factual predicate, the judge explained to
Petitioner that Mr. Grant was not appointed as
Petitioner’s immigration attorney and reiterated
Petitioner’s plea may result in his deportation.
Id. at 14. The judge said:
If you are, in fact, deported, you can’t come back
later on and say that Mr. Grant has done anything improper or
has given you bad advice or anything. He’s given you
the best that he has and you know your situation. Is that
correct, Mr. Cruz?
Id. Petitioner responded, “Yes,
sir.” The judge explained to Petitioner his
guilty plea would result in the waiver of certain rights:
So you’re forever waiving your rights to appeal or
challenge any of the facts of this case as we’ve
already discussed the facts of the case or any legalities of
any decisions that have already been made by me and of
course, you still have the right to, you know, have an
immigration hearing . . . . You understand that?
Id. at 14-15. Petitioner responded, “Yes,
sir.” Id. at 15. Petitioner agreed Mr. Grant
“answered all of [his] questions to complete and utter
satisfaction, ” and Mr. Grant confirmed Petitioner was
“competent.” Id. The judge explained
Petitioner would be designated a sexual offender and would be
subject to the requirements of the Jimmy Ryce and Lunsford
Acts. Id. at 19-20. The judge accepted
Petitioner’s plea of guilty, finding it “freely
and voluntarily entered into after knowing waiver of
rights” and after the factual basis was established.
Id. at 17.
through counsel, filed a direct appeal, Id. at 82,
which he voluntarily dismissed, Ex. B. Petitioner’s
counsel then filed a motion under Florida Rule of Criminal
Procedure 3.850 requesting the trial court vacate
Petitioner’s judgment. Ex. D-5. The trial court denied
the 3.850 motion. Ex. D-3; Ex. G. Petitioner appealed the
trial court’s ruling. Ex. H. On August 18, 2015, the
appellate court affirmed without opinion. Ex. M. The