United States District Court, M.D. Florida, Jacksonville Division
J. Davis United States District Judge.
a Petition for Writ of Habeas Corpus (Petition) (Doc. 1)
pursuant to 28 U.S.C. § 2254, William Permenter, an
inmate of the Florida penal system, challenges his state
court (Duval County) conviction for two counts (counts one
and two) of lewd or lascivious molestation, two counts
(counts six and seven) of sale, distribution, or showing of
obscene materials to minors, and three counts (counts eight,
nine, and ten) of sale/providing alcoholic beverages to a
person under age twenty-one. In support of the Petition,
Petitioner filed a Memorandum of Law in Support of §
2254 Petition for Writ of Habeas Corpus (Memorandum) (Doc.
2). Respondents addressed the grounds of the Petition in an
Answer to Petition for Writ of Habeas Corpus (Response) (Doc.
17).Petitioner elected to file a Reply to
Response to Petition for a Writ of Habeas Corpus (Doc. 18).
The Petition is timely filed. See Response at 7.
raises three grounds in the Petition and seeks an evidentiary
hearing on the second and third grounds. Petition at 15;
Memorandum at 9. It is Petitioner's burden to establish a
need for an evidentiary hearing. See Chavez v. Sec'y,
Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011) (opining a petitioner bears the burden of establishing
the need for an evidentiary hearing with more than
speculative and inconcrete claims of need), cert.
denied, 565 U.S. 1120 (2012). The Court finds no need
for an evidentiary hearing as the pertinent facts are fully
developed in this record or the record otherwise precludes
habeas relief. As such, the Court can "adequately assess
[Petitioner's] claim[s] without further factual
development," Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034
(2004). Therefore, Petitioner is not entitled to an
evidentiary hearing. Schriro v. Landrigan, 550 U.S.
465, 474 (2007).
CLAIMS OF PETITION
grounds are raised in the Petition, two of which are
unexhausted: (1) the trial court erred in admitting
statements recorded during a call initiated by detectives
after Petitioner had invoked his right to counsel
(exhausted); (2) the ineffective assistance of trial counsel
for misadvising Petitioner with respect to a plea offer made
during the pre-trial phase, resulting in the loss of a
favorable plea (unexhausted); and, (3) the ineffective
assistance of trial counsel for improperly relying upon a
defense strategy which was legally inadmissible as a matter
of law (unexhausted). Petition at 5-10.
does not satisfy the “in custody” requirement of
28 U.S.C. § 2254(a) as to counts six, seven, eight,
nine, and ten of the conviction. See Response at 8-9. The
sentences for these offenses expired prior to the filing of
his federal Petition. However, he meets the “in
custody” requirement as to counts one and two of the
Petition. Id. Since the jury returned a not guilty
verdict on counts four and five and the state withdrew count
three, the only convictions open to collateral attack in this
federal habeas proceeding are counts one and two.
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act (AEDPA) governs
a state prisoner's federal petition for habeas corpus.
See 28 U.S.C. § 2254. This statute "imposes
important limitations on the power of federal courts to
overturn the judgments of state courts in criminal
cases." Shoop v. Hill, 139 S.Ct. 504, 506
(2019) (per curiam). The AEDPA statute: "respects the
authority and ability of state courts and their dedication to
the protection of constitutional rights." Id.
Therefore, "[u]nder AEDPA, error is not enough; even
clear error is not enough." Meders v. Warden, Ga.
Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019)
(citing Virginia v. LeBlanc, 137 S.Ct. 1726, 1728
(2017) (per curiam)), petition for cert. filed, (U.S. July
30, 2019) (No. 19-5438).
the statute as amended by AEDPA, federal courts may not grant
habeas relief unless one of the claims: "(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)." Nance v. Warden, Ga.
Diagnostic Prison, 922 F.3d 1298, 1300-1301 (11th Cir.
in order to obtain habeas relief, the state court decision
must unquestionably conflict with Supreme Court precedent.
Harrington v. Richter, 562 U.S. 86, 102 (2011). If
some fair-minded jurists could agree with the lower
court's decision, habeas relief must be denied.
Meders, 911 F.3d at 1351. As noted in
Richter, unless the petitioner shows the state
court's ruling was so lacking in justification that there
was error well understood and comprehended in existing law
beyond any possibility for fair-minded disagreement, there is
no entitlement to habeas relief. Burt v. Titlow, 571
U.S. 12, 19-20 (2013).
undertaking its review, this Court is not obliged "to
flyspeck the state court order or grade it."
Meders, 911 F.3d at 1349. Indeed, specificity and
thoroughness of the state court decision is not required;
even if the state court fails to provide rationale or
reasoning, AEDPA deference is due "absent a conspicuous
misapplication of Supreme Court precedent." Id.
at 1350 (citation and quotation marks omitted).
importance, a state court's finding of fact, whether a
state trial court or appellate court, is entitled to a
presumption of correctness under 28 U.S.C. § 2254(e)(1).
But, this presumption of correctness applies only to findings
of fact, not mixed determinations of law and fact.
Brannan v. GDCP Warden, 541 Fed.Appx. 901, 903-904
(11th Cir. 2013) (per curiam) (recognizing the distinction
between a pure question of fact from a mixed question of law
and fact), cert. denied, 573 U.S. 906 (2014).
there has been one reasoned state court judgment rejecting a
federal claim followed by an unexplained order upholding that
judgement, federal habeas courts employ a "look
through" presumption: "the 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 reasoning." Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018) (Wilson).
claim is adjudicated in state court and a prisoner seeks
relief in the federal court system, AEDPA's formidable
barrier to habeas relief comes into play, and it is very
difficult for a petitioner to prevail under this stringent
standard. As such, state-court judgments will not easily be
set aside once the Court employs this highly deferential
standard that is intentionally difficult to meet. See
Richter, 562 U.S. at 102. Although AEDPA does not impose
a complete bar to issuing a writ, it severely limits those
occasions to those "where there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts" with Supreme Court precedent.
Id. In sum, application of the standard set forth in
28 U.S.C. § 2254(d) ensures that habeas corpus is a
guard against extreme malfunctions in the state criminal
justice systems, and not a mechanism for ordinary error
correction. Richter, 562 U.S. at 102-103 (citation and
quotation marks omitted).
INEFFECTIVE ASSISTANCE OF COUNSEL
raises claims of ineffective assistance of trial counsel. To
prevail on a Sixth Amendment claim, Petitioner must satisfy
the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 688 (1984), requiring that he
show both deficient performance (counsel's representation
fell below an objective standard of reasonableness) and
prejudice (there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different). See Brewster v.
Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019)
(reviewing court may begin with either component).
order to obtain habeas relief, a counsel's errors must be
so great that they adversely affect the defense. In order to
satisfy this prejudice prong, the reasonable probability of a
different result must be "a probability sufficient to
undermine confidence in the outcome."
Strickland, 466 U.S. at 694.
standard created by Strickland is a highly
deferential standard, requiring a most deferential review of
counsel's decisions. Richter, 562 U.S. at 105.
Not only is there the "Strickland mandated one
layer of deference to the decisions of trial counsel[,
]" there is the added layer of deference required by
AEDPA: the one to a state court's decision.
Nance, 922 F.3d at 1303. Thus,
Given the double deference due, it is 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." Johnson v.
Sec'y, DOC, 643 F.3d 907, 911 (11th Cir. 2011). And,
for the reasons we have already discussed, it is rarer still
for merit to be found in a claim that challenges a strategic
decision of counsel.
Nance, 922 F.3d at 1303.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhaustion and Procedural Default
admits he did not exhaust grounds two and three of the
Petition. Petition at 7, 9. He concedes these claims should
have been raised through a post-conviction collateral attack,
but he claims his procedural default should be excused based
on the narrow exception under Martinez v. Ryan, 566
U.S. 1 (2012), asserting he meets the exception. Id.
The record demonstrates Petitioner did not have counsel for
his post-conviction Rule 3.850 motion. Ex. P.
order to overcome his default, Petitioner must demonstrate
that the underlying ineffectiveness claims are substantial.
The Supreme Court, in Martinez, 566 U.S. at 14
(citation omitted), advised: "[t]o overcome the default,
a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit." As discussed
in the merits analysis that follows, the ineffectiveness
claims raised in grounds two and three lack merit. Therefore,
Petitioner has not shown he can satisfy an exception to the
procedural bar. A discussion follows.
ground two, Petitioner claims trial counsel was
constitutionally ineffective for misadvising Petitioner with
respect to a plea offer made during the pre-trial phase,
resulting in the loss of a favorable plea. Petition at 7. The
record demonstrates the following. Detectives interviewed
Petitioner on April 26, 2012 in the Sex Crimes Division. Ex.
A at 4. Briefly,
The 58 year old suspect has been involved in the 9 year old
victim and 12 year old victim['s] lives since birth and
they refer to him as “Uncle Mike.” While spending
the night with the suspect at his residence, the suspect
provided the victims and their 16 year old friend with
numerous alcoholic drinks. After getting the juvenile girls
intoxicated the suspect exposed his penis, had the girls
touch his penis, and had the victims watch pornographic
movies with him. The victim's mother conducted a
controlled phone call with the suspect and the suspect
admitted to providing them with alcohol, they were looking at
the pornography, they could have seen his penis but denied
the victims touching his penis.
The suspect came to the Police Memorial Building for an
interview and was read his United States Constitutional
Rights. The suspect admitted to all the victims drinking
“wine coolers” at his house and that the victims
were watching his “adult videos.”
The suspect invoked his right to remain silent before
discussing further details of the allegations made by the