Jones v. Secretary, Department of Corrections , 319 F. App'x 792 ( 2009 )


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    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 08-12270                   MAR 16, 2009
    Non-Argument Calendar            THOMAS K. KAHN
    CLERK
    ________________________
    D. C. Docket No. 04-01930-CV-T-23-MSS
    DALE EDWARD JONES,
    Petitioner-Appellant,
    versus
    SECRETARY, DEPARTMENT OF CORRECTIONS,
    ATTORNEY GENERAL, STATE OF FLORIDA,
    Respondents-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    _________________________
    (March 16, 2009)
    Before CARNES, WILSON and PRYOR, Circuit Judges.
    PER CURIAM:
    Dale Edward Jones appeals the denial of his petition for a writ of habeas
    corpus. 
    28 U.S.C. § 2254
    . We granted a certificate of appealability to resolve two
    issues: (1) whether “the district court correctly applied the deferential standard of
    review set out in 
    28 U.S.C. § 2254
    (d)(1)” when the record was unclear whether the
    state court had considered Jones’s argument that he declined an offer to plead
    guilty based on the advice of counsel to consolidate his criminal charges; and (2)
    whether “the district court erred in denying [Jones’s] claim that his trial counsel
    was ineffective for failing to correctly advise him regarding the maximum possible
    sentence he faced if he declined the state’s plea offer and went to trial.” We
    affirm.
    I. BACKGROUND
    Jones was charged in two separate informations with five counts of lewd and
    lascivious acts against a minor, C.C., and four counts of lewd and lascivious acts
    against another minor, T.B. 
    Fla. Stat. § 800.04
    . Jones moved to consolidate the
    cases because the “offenses charged” were “allegedly based on two or more
    connected or related acts.” A Florida court granted Jones’s motion.
    Before trial, the state offered to recommend a sentence of fifteen years of
    imprisonment in exchange for Jones’s plea of guilt. Jones rejected the offer. A
    jury convicted Jones of five counts involving C.C. and three counts involving T.B.
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    At the sentencing hearing, Jones asked the trial court to impose concurrent
    minimum sentences of imprisonment. Jones argued that the offenses involved an
    ongoing criminal episode and the trial court could not enhance his sentence as an
    habitual offender and impose consecutive sentences. The trial court sentenced
    Jones as an habitual offender to concurrent sentences of thirty years of
    imprisonment for the crimes against C.C. to run consecutive to a sentence of ten
    years of imprisonment for the crimes against T.B., followed by five years of
    supervised probation. The state appellate court affirmed Jones’s convictions and
    sentences. See Jones v. State, 
    719 So. 2d 899
     (Fla. Dist. Ct. App. 1998).
    Jones later filed in a Florida court a motion for post-conviction relief. Jones
    alleged ineffective assistance of appellate counsel. See Fla. R. Crim. P. 3.850. The
    court denied relief, and the appellate court affirmed.
    In 1999, Jones filed in a Florida court a second motion for post-conviction
    relief. Jones argued that counsel was ineffective for failing to provide accurate
    information necessary to evaluate the offer to plead guilty. Jones alleged that trial
    counsel advised him that if he were to consolidate his criminal charges, he would
    receive a maximum sentence of concurrent thirty-year terms of imprisonment, but
    if he were convicted in separate trials, he could receive consecutive thirty-year
    sentences. Jones made equivocal statements about whether he would have pleaded
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    guilty if counsel had told him he faced a sentence greater than thirty years of
    imprisonment. Jones asserted that he would have accepted the offer to plead
    guilty, but stated in a footnote that “the (15) years would have been easier to
    consider if [he] knew he was facing (60) years as opposed to the (30) . . . years [he]
    was led to believe he was facing . . . .” Jones later stated that he would have
    “definitely opted to have separate trials.” Jones requested that he receive new
    separate trials or “in the alternative, an opportunity to re-negotiate a plea.”
    The trial court denied Jones’s second motion. The court interpreted Jones’s
    argument as alleging that counsel was ineffective for advising Jones to consolidate
    his criminal charges. The court ruled that counsel’s decision to consolidate “was
    within the broad range of reasonably competent performance” and that Jones was
    not prejudiced because, even if the cases had been tried separately, “the outcome at
    trial would not have been any different.”
    Jones moved for rehearing and asked the trial court to consider his argument
    that he declined the offer to plead guilty based on counsel’s advice. The court
    issued an order in which it identified both of Jones’s arguments, but the court
    repeated its previous ruling. Jones appealed and the state appellate court affirmed
    summarily.
    Jones filed a federal petition for a writ of habeas corpus and raised both
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    grounds of ineffectiveness of trial counsel. The district court found that counsel’s
    advice to consolidate was a reasonable “trial strategy,” and, even if unreasonable,
    Jones failed to prove that, but for counsel’s advice he would have accepted the
    offer to plead guilty. The district court concluded that “[b]ased on the bare
    allegations presented to support this claim, the state court’s rejection of this claim
    amounts to neither an unreasonable application of Strickland nor an unreasonable
    determination of the facts.”
    II. STANDARD OF REVIEW
    We review de novo the denial of a petition for a writ of habeas corpus.
    McNair v. Campbell, 
    416 F.3d 1291
    , 1297 (11th Cir. 2006). An issue of
    ineffective assistance of counsel presents a mixed question of law and fact that we
    review de novo. 
    Id.
    III. DISCUSSION
    A petitioner is entitled to a writ of habeas corpus if the state court reached a
    decision that was “contrary to, or involved an unreasonable application of, clearly
    established Federal law.” 
    28 U.S.C. § 2254
    (d)(1). When the state court fails to
    rule on the merits of the argument, we are not required to defer to the decision of
    the state court. See Davis v. Sec’y for the Dep’t of Corr., 
    341 F.3d 1310
    , 1313
    (11th Cir. 2003). Because the state court did not address the merits of Jones’s
    5
    argument that but for counsel’s advice he would have accepted the offer to plead
    guilty, we review this issue with no deference to the state court decision. We
    nonetheless conclude that Jones is not entitled to habeas relief.
    To establish ineffective assistance of counsel, a petitioner must prove that
    counsel provided deficient representation and that the petitioner was prejudiced by
    the deficient performance. Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 2064 (1984); Cross v. United States, 
    893 F.2d 1287
    , 1290 (11th Cir.
    1990). A petitioner satisfies the prejudice element if he establishes that “counsel’s
    conduct so undermined the proper functioning of the adversarial process that the
    trial cannot be relied on as having produced a just result.” Strickland, 
    466 U.S. at 686
    , 
    104 S. Ct. at 2064
    . In the context of a guilty plea, the prejudice inquiry
    “focuses on whether counsel’s constitutionally ineffective performance affected the
    outcome of the plea process.” Hill v. Lockhart, 
    474 U.S. 52
    , 59, 
    106 S. Ct. 366
    ,
    370 (1985). To establish prejudice after the petitioner has rejected an offer to
    plead guilty, the petitioner must “establish a reasonable probability that, absent
    counsel’s alleged ineffective assistance, he would have accepted the plea
    agreement.” Diaz v. United States, 
    930 F.2d 832
    , 835 (11th Cir. 1991); accord
    Coulter v. Herring, 
    60 F.3d 1499
    , 1504 (11th Cir. 1995).
    Jones contends that counsel gave erroneous advice that prejudiced the
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    outcome of his case. Jones argues that counsel advised him that he would receive
    after trial a maximum sentence of thirty years of imprisonment if he consolidated
    his charges when in fact he might have received a sixty year sentence. Jones
    argues that, but for counsel’s advice, he would have accepted the offer to plead
    guilty to fifteen years of imprisonment. Jones’s argument fails.
    The record supports the finding of the district court that Jones was not
    prejudiced by counsel’s advice because Jones failed to establish that he would have
    pleaded guilty had he been advised correctly about the punishment he faced. See
    Diaz, 
    930 F.2d at 835
     (“[A]fter the fact testimony concerning [the] desire to plead,
    without more, is insufficient to establish that but for counsel’s alleged advice or
    inaction, [the defendant] would have accepted the plea offer.”). Jones stated in his
    petition for a writ of habeas corpus that counsel’s advice “played a key part,” not
    that it was the deciding factor that motivated him to reject the offer to plead guilty.
    Jones told the state courts that, had he known he faced consecutive sentences of
    imprisonment, he would have demanded separate trials, and Jones requested new
    trials as a remedy for counsel’s allegedly deficient conduct, even though Jones
    would again face a potential sixty year sentence after separate trials. The record
    establishes that Jones wanted and is still willing to risk greater punishment for the
    possibility of an acquittal.
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    IV. CONCLUSION
    The denial of Jones’s petition is AFFIRMED.
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