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Permenter v. Secretary, Florida Department of Corrections

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

October 17, 2019



          Brian J. Davis United States District Judge.


         Through 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).[1]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.


         Petitioner 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).


         Three 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.

         IV. In Custody

         Petitioner 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.


         The 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).

         Applying 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. 2019).

         Thus, 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).

         In 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).

         Of 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).

         Where 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).

         Once a 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).


         Petitioner 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).

         In 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.

         The 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.


         A. Exhaustion and Procedural Default

         Petitioner 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.

         In 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.

         In 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 victims ...

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