United States District Court, M.D. Florida, Ocala Division
Morales Howard United States District Judge
John Gancedo, an inmate of the Florida penal system,
initiated this action on February 23, 2016,  by filing a pro
se Petition for Writ of Habeas Corpus under 28 U.S.C. §
2254 (Petition; Doc. 1). In the Petition, Gancedo challenges
a 2015 state court (Citrus County, Florida) judgment of
conviction for manufacturing methamphetamine and possession
of listed chemicals. Gancedo raises one ground for relief.
See Petition at 6-11. Respondents have submitted a
memorandum in opposition to the Petition. See
Response to Petition (Response; Doc. 12) with exhibits (Resp.
Ex.). On August 28, 2017, Gancedo filed a brief in reply.
See Reply to State's Response (Reply; Doc. 14.).
Gancedo also filed a motion for summary judgment (Motion;
Doc. 19) on June 19, 2019. This case is ripe for review.
September 6, 2013, the State of Florida (State) charged
Gancedo by way of Information with manufacturing
methamphetamine (count one), possession of paraphernalia
(count two), and possession of listed chemicals (count
three). Resp. Ex. A at 1-2. On September 25, 2013, Gancedo
entered a no contest plea to all three counts. Id.
at 9. On the same day, the circuit court sentenced Gancedo to
time served as to count two and imposed a sixty-month term of
drug offender probation as to counts one and three.
Id. 9, 11-17. Gancedo did not appeal.
April 15, 2014, the Florida Department of Corrections (DOC)
sent a notification to the circuit court regarding a
technical violation of probation from a positive urinalysis
test. Id. at 18. The circuit court took no further
action on the violation. Id. On July 1, 2014, the
DOC issued an affidavit of violation of probation, alleging
Gancedo tested positive for methamphetamine. Id. at
19-20. On August 12, 2014, Gancedo admitted violating his
probation. Id. at 24. That same day, the circuit
court revoked Gancedo's probation and imposed a term of
incarceration of seven years in prison, suspended upon
successful completion of twenty-four months of community
control and drug offender probation. Id. at 24-40.
Gancedo did not appeal.
October 27, 2014, Gancedo violated his community control by
failing to remain confined to his approved residence.
Id. at 41-44. On January 16, 2015, the circuit court
dismissed the violation of probation charge. Id. at
45. The DOC again notified the circuit court of a technical
violation of Gancedo's drug offender probation on June 8,
2015, when the DOC alleged Gancedo tested positive for
benzodiazepines and methamphetamine. Id. 46. The
circuit court determined no further action was required and
ordered supervision be continued. Id.
2, 2015, the DOC issued another affidavit of violation of
probation, alleging Gancedo failed to participate in a
specialized drug court treatment program and failed to remain
confined to his approved residence. Id. at 47-56.
The DOC later issued an amended affidavit adding an
additional allegation that Gancedo failed to notify his
probation officer that he changed addresses. Id. at
57-58. On October 9, 2015, Gancedo admitted violating his
probation. Id. at 59. On the same day, the circuit
revoked his community control and probation and sentenced
Gancedo to a term of incarceration of seven years in prison
as to counts one and three, with each count running
concurrently. Id. at 59-72. Gancedo did not appeal.
April 13, 2016, Gancedo filed a motion for postconviction
relief pursuant to Florida Rule of Criminal Procedure 3.850
(Rule 3.850 Motion). Resp. Ex. B at 44-58. In the Rule 3.850
Motion, Gancedo raised the following four claims of
ineffective assistance: (1) advising him to enter an open
plea of guilty to his violation of probation charges; (2)
failing to investigate witnesses; (3) failing to advise him
of how he violated his probation; and (4) failing to file a
direct appeal. Id. The circuit court denied the Rule
3.850 Motion. Id. at 3-7. On December 13, 2016,
Florida's Fifth District Court of Appeal (Fifth DCA) per
curiam affirmed the circuit court's denial of the Rule
3.850 Motion without issuing a written opinion. Resp. Ex. C
at 32. Gancedo moved for rehearing, id. at 33-34,
which the Fifth DCA denied on December 21, 2016. Id.
at 36. The Fifth DCA issued its Mandate on January 30, 2017.
Id. at 37. Gancedo petitioned the Florida Supreme
Court to review the Fifth DCA's decision, id. at
38, but the Florida Supreme Court dismissed the petition for
lack of jurisdiction. Id. at 39.
January 27, 2017, Gancedo filed a motion entitled stay of
execution, in which he argued his plea was illegal because
the court costs, fees, and fines the circuit court ordered
him to pay violated the United States Constitution. Resp. Ex.
A at 73-75. The circuit court construed this motion as a
motion to correct an illegal sentence pursuant to Florida
Rule of Criminal Procedure 3.800(a) and struck the motion.
Id. at 76-77. On February 27, 2017, Gancedo filed a
motion to reduce his sentence pursuant to Florida Rule of
Criminal Procedure 3.800(c). Id. at 78-82. On March
7, 2017, the circuit court dismissed the motion as untimely.
Id. at 83-84.
One-Year Limitations Period
action is timely filed within the one-year limitations
period. See 28 U.S.C. § 2244(d).
habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See
Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007);
Jones v. Sec'y, Fla. Dep't of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2245 (2017). “It follows
that if the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.”
Schriro, 550 U.S. at 474. The pertinent facts of
this case are fully developed in the record before the Court.
Because the Court can “adequately assess
[Gancedo's] claim[s] without further factual development,
” Turner v. Crosby, 339 F.3d 1247, 1275 (11th
Cir. 2003), an evidentiary hearing will not be conducted.
Governing Legal Principles
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner's federal petition for habeas
corpus. See Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S.Ct. 1432 (2017).
“‘The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme
malfunctions in the state criminal justice systems, and not
as a means of error correction.'” Id.
(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)
(quotation marks omitted)). As such, federal habeas review of
final state court decisions is “‘greatly
circumscribed' and ‘highly deferential.'”
Id. (quoting Hill v. Humphrey, 662 F.3d
1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim
on the merits. See Marshall v. Sec'y, Fla. Dep't
of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue a written opinion explaining its
rationale in order for the state court's decision to
qualify as an adjudication on the merits. See Harrington
v. Richter, 562 U.S. 86, 100 (2011). Where the state
court's adjudication on the merits is unaccompanied by an
explanation, the United States Supreme Court has instructed:
[T]he federal court should “look through” the
unexplained decision to the last related state-court decision
that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). The
presumption may be rebutted by showing that the higher state
court's adjudication most likely relied on different
grounds than the lower state court's reasoned decision,
such as persuasive alternative grounds that were briefed or
argued to the higher court or obvious in the record it
reviewed. Id. at 1192, 1196.
claim was “adjudicated on the merits” in state
court, § 2254(d) bars relitigation of the claim 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 of the United
States;” 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); Richter, 562 U.S. at 97-98. The Eleventh
Circuit describes the limited scope of federal review
pursuant to § 2254 as follows:
First, § 2254(d)(1) provides for federal review for
claims of state courts' erroneous legal conclusions. As
explained by the Supreme Court in Williams v.
Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000), § 2254(d)(1) consists of two distinct clauses: a
“contrary to” clause and an “unreasonable
application” clause. The “contrary to”
clause allows for relief only “if the state court
arrives at a 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 413, 120 S.Ct. at 1523 (plurality opinion).
The “unreasonable application” clause allows for
relief only ...