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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16970
Non-Argument Calendar
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D.C. Docket No. 8:13-cv-01452-CEH-TBM
SETH DISANTO,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 15, 2019)
Before WILLIAM PRYOR, JORDAN, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Seth DiSanto, a Florida prisoner proceeding pro se, 1 appeals the district
court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus and the
district court’s denial of his Fed. R. Civ. P. 59(e) motion for reconsideration. No
reversible error has been shown; we affirm.
The State of Florida charged DiSanto with burglary of a dwelling and with
possession of cannabis. In July 2008, DiSanto pleaded no contest to both charges,
pursuant to a written plea agreement. At the beginning of DiSanto’s April 2009
sentencing hearing, however, DiSanto’s lawyer explained that DiSanto had
changed his mind and wanted to proceed to trial. Accordingly, DiSanto’s lawyer
moved the state court to set aside DiSanto’s “no contest” plea. The state court
denied the motion. The state court then sentenced DiSanto to a total of 15 years’
imprisonment. DiSanto’s convictions were affirmed on direct appeal. The state
court also denied DiSanto’s motions for post-conviction relief.
In 2013, DiSanto filed pro se his section 2254 petition. Pertinent to this
appeal, DiSanto argued that his trial lawyer was ineffective for failing to argue that
1
We construe liberally pro se pleadings. Tannenbaum v. United States,
148 F.3d 1262, 1263
(11th Cir. 1998).
2
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the trial court lacked discretion to deny DiSanto’s motion to withdraw his plea,
pursuant to Fla. R. Crim. P. 3.172(g).
The district court denied DiSanto’s claim on the merits, concluding that --
because DiSanto was unentitled to withdraw his plea under Rule 3.172(g) -- his
lawyer’s performance was not deficient. The district court also denied DiSanto’s
Rule 59(e) motion for reconsideration.
We granted DiSanto a certificate of appealability on this issue: “Whether
counsel was ineffective for failing to inform the trial court that it lacked discretion
to deny Mr. DiSanto’s oral motion to withdraw his plea, based on Fla. R. Crim. P.
3.172(g).”
We review de novo the district court’s denial of a section 2254 habeas
petition. McNair v. Campbell,
416 F.3d 1291, 1297 (11th Cir. 2005). “An
ineffective assistance of counsel claim is a mixed question of law and fact subject
to de novo review.”
Id.
To prevail on a claim of ineffective-assistance-of-counsel, a section 2254
petitioner must show that (1) his lawyer’s performance “fell below an objective
standard of reasonableness,” and (2) “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Brooks v. Comm’r,
719 F.3d 1292, 1300 (11th Cir. 2013) (citing
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Strickland v. Washington,
104 S. Ct. 2052, 2064 (1984)). “We determine the
reasonableness of . . . counsel’s performance through a deferential review of all of
the circumstances from the perspective of counsel at the time of the alleged
errors.” Baldwin v. Johnson,
152 F.3d 1304, 1311 (11th Cir. 1998). There exists
“a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance . . ..”
Strickland, 104 S. Ct. at 2065.
When -- as in this case -- the state court makes no ruling on the merits of a
habeas claim, we review the claim de novo. See Cone v. Bell,
556 U.S. 449, 472
(2009). “Even under de novo review, the standard for judging counsel’s
representation is a most deferential one.” Harrington v. Richter,
562 U.S. 86, 105
(2011).
DiSanto has failed to demonstrate that his trial lawyer’s performance was
deficient. 2 Critical to DiSanto’s claim is his contention that the trial judge never
accepted formally DiSanto’s “no contest” plea. As a result, DiSanto says he was
entitled to withdraw his plea for any reason, pursuant to Fla. R. Crim. P. 3.172(g).3
2
We reject the state’s arguments that DiSanto (1) failed to brief adequately the issue identified
in the certificate of appealability and (2) failed to exhaust his ineffective-assistance-of-counsel
claim in state court. Accordingly, we address DiSanto’s claim on the merits.
3
Rule 3.172(g) provides that “[n]o plea offer or negotiation is binding until it is accepted by the
trial judge formally after making all the inquiries, advisements, and determinations required by
this rule. Until that time, it may be withdrawn by either party without any necessary
justification.” Fla. R. Crim. P. 3.172(g).
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Contrary to DiSanto’s assertion, the record evidences that the trial court in
fact accepted DiSanto’s plea. At the plea hearing, the trial judge said these words:
So at this time, sir, I’ll find that you are making a knowing, voluntary
and intelligent waiver of your constitutional rights, and to the testing
of any physical evidence which DNA testing could exonerate you;
that you understand the significance of your plea; and that you are
represented by competent counsel with whom you are satisfied; and
that there’s a factual basis in both cases. So that at this time, sir,
we’re gonna put off your sentencing to the September 5th . . . at nine
o’clock a.m.
Then -- after the plea hearing -- the trial judge signed DiSanto’s Waiver of
Rights and Plea Agreement. In doing so, the trial judge attested as follows: “I have
determined that the defendant entered into this waiver of rights and plea agreement
freely and voluntarily and that there is sufficient factual basis. Therefore, I
approve this document and accept the defendant’s plea.” (emphasis added).
We are persuaded that the trial judge’s words were sufficient to constitute
formal acceptance of DiSanto’s plea for purposes of Rule 3.172(g). Cf. Campbell
v. State,
125 So. 3d 733, 740-41 (Fla. 2013) (interpreting “formal acceptance”
under Rule 3.172(g) to mean “an affirmative statement on the record, or an
affirmative act by the court that the plea has been accepted . . ..”).
On this record, we cannot conclude that DiSanto’s lawyer’s performance fell
below the wide range of competence demanded of attorneys in criminal cases.
DiSanto’s lawyer could have believed reasonably that the trial court had accepted
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DiSanto’s plea such that DiSanto was unentitled to automatic withdrawal under
Rule 3.172(g). DiSanto has failed to overcome the presumption that his lawyer
rendered adequate professional assistance and made all significant decisions in the
exercise of reasonable professional judgment.
The district court committed no error in denying DiSanto’s section 2254
petition. We affirm the denial of DiSanto’s section 2254 petition and the denial of
DiSanto’s Rule 59(e) motion.
AFFIRMED.
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