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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11756
Non-Argument Calendar
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D.C. Docket No. 8:14-cv-00458-EAK-EAJ
JAMES DUFFY,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 27, 2018)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
James Duffy, a Florida prisoner serving a fifteen-year imprisonment
sentence for trafficking in methamphetamine or amphetamine, appeals the denial
of his 28 U.S.C. § 2254 petition, which had raised, in relevant part, a claim that his
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trial counsel had rendered ineffective assistance by failing to discuss the pros and
cons of his plea offer. The district court denied Duffy’s petition as to that issue
because the claim had been procedurally defaulted in the state court. Duffy argues
on appeal that, pursuant to Martinez v. Ryan,
566 U.S. 1 (2012), the procedural
default should be excused and that his claim of ineffectiveness of his trial counsel
should be considered on the merits because his post-conviction counsel was
ineffective for failing to raise that issue in the original state post-conviction
proceeding. After careful review, we affirm.
When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error. Nyland v. Moore,
216 F.3d 1264, 1266 (11th Cir. 2000). We may
affirm the denial of habeas relief for any ground supported by the record. Trotter
v. Sec’y, Dep’t of Corrs.,
535 F.3d 1286, 1291 (11th Cir. 2008).
Under Martinez, a prisoner may establish cause for the default of a claim of
ineffective assistance of trial counsel by showing that: (1) post-conviction counsel
was ineffective under the two-prong test of Strickland v. Washington,
466 U.S.
668 (1984); and (2) the defaulted claim is a “substantial one,” which means that the
prisoner must show that “the claim has some merit.”
Martinez, 566 U.S. at 14. A
defaulted claim is substantial if the resolution of its merits would be debatable
among jurists of reason. Miller–El v. Cockrell,
537 U.S. 322, 336 (2010).
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To make a successful claim of ineffective assistance of counsel under
Strickland, a defendant must demonstrate both that (1) his counsel’s performance
was deficient, and (2) the deficient performance prejudiced his
defense. 466 U.S.
at 687. First, deficient performance requires showing that counsel made errors so
serious that counsel was not functioning as the counsel guaranteed the defendant
by the Sixth Amendment.
Id. The burden is on a petitioner to prove, by a
preponderance of competence evidence, that counsel’s performance was
unreasonable. Putman v. Head,
268 F.3d 1223, 1243 (11th Cir. 2001).
Second, prejudice occurs when there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.
Strickland, 466 U.S. at 694. If a plea offer has been rejected due to
counsel’s allegedly deficient performance, a defendant shows prejudice by
demonstrating a reasonable probability that: (1) he would have accepted the earlier
plea offer had he been afforded effective assistance of counsel during plea
negotiations; (2) the plea would have been entered without the state canceling it or
the trial court refusing to accept it; and (3) the end result of the criminal process
would have been more favorable by reason of a plea to a lesser charge or a
sentence of less prison time. Lafler v. Cooper,
566 U.S. 156, 164 (2012).
In this case, Duffy has failed to satisfy the standard set forth in Martinez. As
for its first prong, Duffy must show that his post-conviction counsel was
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ineffective under Strickland for failing to raise in Duffy’s first Rule 3.850 motion
the issue of trial counsel’s ineffectiveness.
Martinez, 566 U.S. at 14. In relevant
part, Duffy argues that his post-conviction counsel should have argued that his trial
counsel was ineffective when it failed to properly advise him regarding the state’s
plea offer, which was a four-year sentence in exchange for his guilty plea. Duffy
says that, when the offer was made by the state, defense counsel told him about the
offer and told him to think about it, without advising him of the “pros and cons” of
the offer. Duffy claims that if he had been fully advised of the offer, he would
have pled guilty and not gone to trial.
However, Duffy has not met his burden of showing that his post-conviction
counsel was ineffective for failing to raise his trial counsel’s ineffectiveness.
Id.
While Duffy alleges that he would have accepted the plea offer if he had known
more information, he offers nothing indicating -- much less showing a reasonable
probability -- that he had any intent to plead guilty. See
Lafler, 566 U.S. at 164.
Nor has Duffy has cited to anything suggesting that the trial court would have
accepted the negotiated plea of a four-year sentence, especially when the
mandatory-minimum sentence was fifteen years’ imprisonment. See
Lafler, 566
U.S. at 164;
Putman, 268 F.3d at 1243. Indeed, we’ve held that a defendant failed
to satisfy Lafler where, as here, the district court could not have sentenced him to
the prosecutor’s recommended sentence under the plea, since it was less than the
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mandatory minimum. See Osley v. United States,
751 F.3d 1214, 1225 (11th Cir.
2014) (citing United States v. Castaing–Sosa,
530 F.3d 1358, 1360 (11th Cir.
2008) (“It is well-settled that a district court is not authorized to sentence a
defendant below the statutory mandatory minimum unless the government filed a
substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. §
5K1.1 or the defendant falls within the safety-valve of 18 U.S.C. § 3553(f).”)).
As for the second prong of Martinez, even if Duffy’s allegations are
sufficient to demonstrate deficient performance on the part of post-conviction
counsel, Duffy has failed to demonstrate that his underlying claim of ineffective
assistance of trial counsel is “substantial.” To do so, he would need to show that
his claim has merit, yet as we’ve already explained, he has not done so. See
Martinez, 566 U.S. at 14;
Miller–El, 537 U.S. at 336. Indeed, he has failed to
demonstrate that his trial counsel was deficient, or that the alleged deficiency
prejudiced him. See
Strickland, 466 U.S. at 687-90;
Putman, 268 F.3d at 1243.
Because he did not meet this burden, he did not meet the standard in Martinez to
excuse the procedural default. See
Putman, 268 F.3d at 1243;
Martinez, 566 U.S.
at 14.
AFFIRMED.
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