United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
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).
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.
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.
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
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.
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.
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;
(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).
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.
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.
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
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). 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.").
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).
for Ineffective Assistance of Counsel
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.
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.
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
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
[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
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).
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.
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).
rejecting this argument, the state post-conviction court
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).
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).
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. §§
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).
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. ...