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Newton v. Secretary, Department of Corrections

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

October 10, 2019

COREY NEWTON, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE

         Corey Newton applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) and challenges the validity of his state convictions for burglary of a dwelling and possession of burglary tools, for which Mr. Newton serves thirty years' imprisonment. In his petition, Mr. Newton alleges a total of seven claims for relief based on ineffective assistance of counsel. (Dkt. 1). The Court ordered Respondent Secretary, Department of Corrections, to show cause why relief sought in the petition should not be granted. (Dkt. 4). Respondent filed a response in opposition to the petition and a copy of the state court record in paper format. (Dkts. 7, 8, 9). Mr. Newton filed a reply. (Dkt. 23). Respondent concedes the petition's timeliness. (Dkt. 7 at 5).

         Upon consideration of the petition (Dkt. 1), the response (Dkt. 7), and the reply (Dkt. 23), and in accordance with the Rules Governing Section 2254 Cases in the United States District Courts, it is ORDERED that the petition is DENIED.

         Facts[1]

         On the morning of October 10, 2012, law enforcement officers were conducting surveillance on a 2011 white Toyota Corolla. Law enforcement followed the vehicle to a residence later determined to be Mr. Newton's. Officers observed Mr. Newton unload items from the Corolla to his residence. The Corolla went to the victim's residence and backed into the front yard. Officers observed Mr. Newton and two other individuals exit the white Toyota Corolla and approach the front door of the victim's home. Law enforcement established a perimeter around the residence.

         Officer Shaw testified that after hearing glass breaking and banging sounds, three black males came out of the house. Mr. Newton and one of the other males fled to a seawall near the home and jumped in the water. Officers apprehended Mr. Newton on a dock.

         Officers observed pry marks on the front door of the victim's home. The pry marks were consistent with the use of a screwdriver to open the door. A screwdriver was found on the floorboard of the Corolla. The victim testified that his front door had been damaged and a window broken. The police discovered a firearm in a toilet in the victim's home. The victim testified that he was away from home during the burglary, that the pry marks were not previously there, and that he did not own the firearm. A television, which had been on a stand, was on the floor by the front door. Jewelry that belonged to the victim's wife was found in a pillowcase in the backyard.

         Mr. Newton was initially charged with (1) armed burglary of a dwelling, (2) possession of burglary tools, and (3) resisting an officer without violence. At the outset of the trial, Mr. Newton pled no contest to Count 3. Following a jury trial, Mr. Newton was found guilty of the lesser included offense of burglary of a dwelling on Count 1 and guilty as charged on Count 2. He was adjudicated guilty pursuant to the jury verdict and prior no contest plea and was concurrently sentenced to 30 years in prison as a Habitual Felony Offender (HFO) with 15 mandatory minimum years as a Prison Releasee Reoffender (PRR) on Count 1; five years in prison on Count 2; and time served on Count 3.

         Standard of Review

         The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of a state court adjudication, states in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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).

         In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied - - the state-court adjudication resulted in a decision that (1) "was contrary to ... clearly established Federal Law, as determined by the Supreme Court of the United States" or (2) "involved an unreasonable application of. . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this 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 this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

         "The focus... is on whether the state court's application of clearly established federal law is objectively unreasonable, ... an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011); accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide."). 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, 529 U.S. at 412.

         The purpose of federal review is not to re-try the state case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Cone, 535 U.S. at 693. A federal court must afford due deference to a state court's decision. "AEDPA prevents defendants - and federal courts - from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766, 779 (2010); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ("This is a 'difficult to meet,' . . . and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt' ...") (citations omitted).

         In a per curiam decision without written opinion, the state appellate court affirmed Mr. Newton's conviction and sentence. (Exhibit 5, Second District Court of Appeal Order dated April 8, 2015); see also Newton v. State, 173 So.3d 976 (Fla. 2d DCA 2015). On May 28, 2015, Mr. Newton filed a Motion for Post-Conviction Relief pursuant to Rule 3.850(a), Fla. R. Crim. P. (Exhibit 7, Motion for Post-Conviction Relief, at 1-24).[2] Mr. Newton's 3.850 motion was denied on June 23, 2015. (Exhibit 7, Order Denying Defendant's Motion for Postconviction Relief, at 34-44). A notice of appeal of the order denying post-conviction relief was filed July 22, 2015. (Exhibit 8, Second District Court of Appeal Case Docket). No. briefs were filed in the post-conviction appeal. Id. In another per curiam decision without a written opinion the state appellate .court affirmed the lower court's denial of Mr. Newton's Rule 3.850 motion. (Exhibit 9); see also Newton v. State, 208 So.3d 1171 (Fla. 2d DCA 2016). The state appellate court's affirmances warrant deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert, denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").

         Review of the state court decision is limited to the record that was before the state court.

We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time, i.e., the record before the state court.

Pinholster, 563 U.S. at 181-82. Mr. Newton bears the burden of overcoming by clear and convincing evidence a state court factual determination. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert denied, 534 U.S. 1046 (2001).

         Standard for Ineffective Assistance of Counsel

         Mr. Newton claims ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297 (11th Cir. 1998), explains that Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, "[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Sims, 155 F.3d at 1305. Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 (holding "there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one"); see also Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.") (citation omitted). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.

         Mr. Newton must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691. To meet this burden, Mr. Newton must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.

         Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91. Mr. Newton cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.... We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992); accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. ... [T]he issue is not what is possible or 'what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). The required extent of counsel's investigation was addressed recently in Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir. 2014), cert, denied sub nom., Hittson v. Chatman, 135 S.Ct. 2126 (2015):

[W]e have explained that "no absolute duty exists to investigate particular facts or a certain line of defense." Chandler, 218 F.3d at 1317. "[C]ounsel has a duty to make reasonable investigations or make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066 (emphasis added). "[C]ounsel need not always investigate before pursuing or not pursuing a line of defense. Investigation (even a nonexhaustive, preliminary investigation) is not required for counsel reasonably to decline to investigate a line of defense thoroughly." Chandler, 218 F.3d at 1318. "In assessing the reasonableness of an attorney's investigation ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Wiggins, 539 U.S. at 527, 123 S.Ct. at 2538.

See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty to raise a frivolous claim).

         Under 28 U.S.C. § 2254(d) Mr. Newton must prove that the state court's decision was "(1). . . contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or (2) ... based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Sustaining a claim of ineffective assistance of counsel is very difficult because "[t]he standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Richter, 562 U.S. at 105 (citations omitted); see also Pinholster, 563 U.S. at 202 (a petitioner must overcome this '"doubly deferential' standard of Strickland and [the] AEDPA"), Johnson v. Sec'y, Dep 't of Corr., 643 F.3d 907, 911 (11th Cir. 2011) ("Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding."), and Pooler v. Sec'y, Dep't of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) ("Because we must view Pooler's ineffective counsel claim-which is governed by the deferential Strickland test-through the lens of AEDPA deference, the resulting standard of review is 'doubly deferential.'"), cert, denied, 134 S.Ct. 191 (2013).

         In denying Mr. Newton's motion for post-conviction relief, the state court recognized that Strickland governs a claim of ineffective assistance of counsel. (Exhibit 7 at 34). Because the state court rejected the claims based on Strickland, Mr. Newton cannot meet the "contrary to" test in Section 2254(d)(1). Mr. Newton instead must show that the state court unreasonably applied Strickland or unreasonably determined the facts. In determining "reasonableness," a federal petition for the writ of habeas corpus authorizes determining only "whether the state habeas court was objectively reasonable in its Strickland inquiry," not an independent assessment of whether counsel's actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert denied, 537 U.S. 870 (2002). The presumption of correctness and the highly deferential standard of review requires that the analysis of each claim begin with the state court's analysis.

         Discussion

         I. Ground One

         In ground one, Mr. Newton claims that his trial counsel was ineffective in failing to object to a constitutional double jeopardy violation. (Dkt. 1 at 5). Specifically, he claims that sentencing him under both the habitual felony offender (HFO) statute and the prison releasee re-offender (PRR) statute violated his constitutional right prohibiting double jeopardy. Id. Mr. Newton raised this issue in his motion for post-conviction relief pursuant to Rule 3.850(a), Fla. R. Crim. P. (Exhibit 7 at 3-5).

         In rejecting this argument, the state post-conviction court explained:

The PRR statute sets a mandatory minimum provision which creates a sentencing floor. See Cotto v. State, 139 So.3d 283 (Fla. 2014). The PRR statute indicates that "nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 [the habitual offender statute] or any other provision of the law." § 775.082(9)(c), Fla. Stat. (2012). In contrast, the HFO provision allows courts to sentence a defendant who qualifies as a[n] HFO to an extended term of imprisonment. See § 775.084(1)(a), Fla. Stat. (2012). Concurrent HFO and PRR sentences for the same offense are permissible when the incarceration period of the HFO sentence exceeds the PRR sentence. See Williams v. State, 129 So.3d 453 (Fla. 2d DCA 2014); Sinclair v. State, 65 So.3d 573, 575 (Fla. 3d DCA 2011) (affirming sentence of twenty years as an HFO and concurrent fifteen years as a PRR because "the incarceration period of the HFO sentence exceeds the PRR sentence[]"). Moreover, concurrent HFO and PRR sentences for the same offense do not violate double jeopardy. Sinclair, 65 So.3d at 574.

(Exhibit 7 at 35-36).

         The state post-conviction court properly found trial counsel is not deemed ineffective for failing to raise an objection when the objection would have been meritless. Although an ineffective assistance of counsel claim is a federal constitutional claim which the court considers in light of the clearly established law of Strickland, when "the validity of the claim that [counsel] failed to assert is clearly a question of state law, ... we must defer to the state's construction of its own law." Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (citation omitted).

         Florida law provides that "concurrent HFO and PRR sentences for the same offense are permissible when the incarceration period of the HFO sentence exceeds the PRR sentence." Johnson v. State, 927 So.2d 251, 252 (Fla. 2d DCA 2006). Here, Mr. Newton's 30-year sentence as an HFO exceeded his 15-year mandatory minimum sentence as a PRR. Thus, even if Mr. Newton's trial counsel would have objected to the imposition of the sentence, the objection would have been overruled, and therefore counsel cannot be deemed ineffective. See Hitchcock v. State, 991 So.2d 337, 361 (Fla. 2008) ("Counsel cannot be deemed ineffective for failing to make a meritless objection.") (citation omitted). Because the state post-conviction court, and the state appellate court by its affirmance of the Order denying post-conviction relief, concluded that the trial judge properly applied state law in sentencing Mr. Newton, Mr. Newton establishes neither deficient performance nor resulting prejudice from counsel's alleged error. Strickland, 466 U.S. at 691-92. Mr. Newton fails to meet his burden of proving that the state court unreasonably applied Strickland or unreasonably determined the facts by rejecting this ground. 28 U.S.C. §§ 2254(d)(1), (d)(2).

         II. Ground Two

         In his second ground, Mr. Newton contends that his counsel was ineffective in misadvising him to reject a plea offer. (Dkt. 1 at 7). He states that counsel advised him to not accept a 20-year plea offer from the State. He claims he followed this advice and proceeded to trial. Because he was ultimately sentenced to 30 years with a 15-year minimum mandatory, a sentence much harsher than the rejected offer, he argues that counsel's poor advice deprived him of his Sixth Amendment right to competent counsel. Id. Mr. Newton raised this issue in his 3.850 motion. (Exhibit 7 at 6-8).

         In ruling against Mr. Newton on this ground, the state post-conviction court stated as follows:

The Defendant's claim is refuted by the record. Prior to trial, the Court asked the Defendant if he wanted to make any offers to the State to try and resolve his case. The Defendant indicated that he was unsure, stating that counsel "didn't say anything to me about any offers or nothing." (See Exhibit C: Transcript of Jury Trial, pp. 12-13). This statement directly contradicts with the Defendant's claim that counsel advised him to reject a plea offer.
Moreover, the record reflects that the State indicated that it would consider an offer of twenty years' imprisonment. When asked about this offer, the Defendant indicated that he was not interested in that sentence. (See Exhibit C at 7-13). Therefore, the Defendant's claim that counsel advised him to reject a plea offer which would have resulted in a lower sentence is without merit. ...

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