USCA11 Case: 21-12297 Document: 30-1 Date Filed: 12/05/2022 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12297
Non-Argument Calendar
____________________
FLORENTINO M. APOLONIO,
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
D.C. Docket No. 6:19-cv-02444-ACC-DCI
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____________________
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Florentino Apolonio, a Florida prisoner proceeding pro se,
appeals the district court’s denial of his
28 U.S.C. § 2254 petition.
We granted a certificate of appealability on two issues: whether
Apolonio was entitled to an evidentiary hearing before the district
court, and whether the district court erred in denying his claim that
trial counsel rendered ineffective assistance by failing to advise him
that the state’s plea offer expired prior to the change-of-plea
hearing, such that his guilty plea was not knowingly and
voluntarily entered. We conclude that Apolonio was not entitled
to an evidentiary hearing in federal court, and that the district court
did not err in denying his ineffective-assistance-of-counsel claim.
We therefore affirm.
I.
Apolonio was charged in Orange County, Florida with
attempted felony murder, sexual battery with a deadly weapon or
physical force, kidnapping with intent to inflict bodily harm or
terrorize, burglary of a dwelling with an assault or battery with a
weapon, aggravated assault with a battery, and aggravated battery
with a deadly weapon. He initially pleaded not guilty and in March
2015, announced that he was ready for trial.
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On the day that his case was called for trial, Apolonio asked
the trial court to dismiss his retained attorneys and appoint a public
defender to represent him. He complained that his attorneys did
not seem interested in helping him prepare his case and had not
provided him with the discovery produced by the State so that he
could prepare on his own. He said that what his attorneys had
“really tried to do is to get [him] to accept the whole charges
without even a reduction or removing some of the charges, which
are exaggerated.” The court did not find Apolonio’s complaints
credible; it denied his request for a new attorney and his
subsequent request for a continuance of the trial.
After a brief recess, Apolonio’s trial counsel announced that
Apolonio had decided to “plea to the bench.” The State informed
the court that it would drop the attempted felony murder and
aggravated assault charges and go forward with the remaining four
counts. The court explained to Apolonio that the sexual battery,
kidnapping, and burglary charges each carried a maximum
sentence of life in prison, and that the maximum sentence for the
aggravated assault charge was 15 years in prison. The court asked
if Apolonio wished to plead guilty to those charges, and Apolonio
responded that he wanted to “accept the plea offer” and eventually
appeal because he did not feel that he and his attorney were
prepared for trial. The court explained to Apolonio that he could
either enter a plea and waive his right to appeal most issues, or he
could go to trial. Apolonio confirmed that he wished to enter a
plea.
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During the plea colloquy, the following exchange occurred
between the trial court and Apolonio:
THE COURT: Has anybody promised you what sentence
you would receive if you entered a plea?
THE DEFENDANT: I didn’t understand the question.
THE COURT: Has anybody promised you what sentence I
would give you if you entered a plea today?
THE DEFENDANT: Oh, no.
Apolonio entered a plea of “no contest” to each charge, and the
trial court accepted his plea.
At the sentencing hearing the next day, the State asked the
court to impose the maximum sentence of life in prison.
Anticipating that Apolonio’s attorney would raise the issue of a
previously offered plea deal in mitigation, the State explained that
its pretrial offer of 30 years in prison was made in an effort to avoid
causing the victim the stress of preparing to testify and face
Apolonio at trial. But the victim had not avoided that stress
because Apolonio’s attorney had taken her deposition and the case
had been set for trial several times.
Apolonio’s counsel confirmed that the State had “at some
point” offered a plea deal of 30 years in prison and acknowledged
that the State was not obligated “to hold open an offer past a certain
point.” Counsel noted that the bottom of the sentencing guidelines
range was 25 years in prison and suggested that a 25-year sentence
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would serve equally well to protect the community and punish
Apolonio, while giving him an opportunity for rehabilitation.
Apolonio addressed the court, apologizing to the victim and
admitting that he was “partly guilty,” but insisting that some of the
victim’s allegations were lies or exaggerations.
The court imposed the maximum sentence of three life
sentences plus 15 years in prison, all running concurrently. The
court explained that it believed that a defendant who accepted
responsibility and avoided putting the victim of his crimes through
a trial deserved consideration at sentencing, but Apolonio’s “half-
given apology” and his record did not support giving him that
consideration.
Apolonio filed a pro se motion to withdraw his no-contest
plea based on ineffective assistance of counsel, contending that he
had been led to believe that if he entered the plea, the judge would
sentence him to no more than 25 years. He asserted that his
attorney had explained to him that the State had offered a plea deal
of 25 years, and he had expected to receive that sentence. The trial
court dismissed the motion for lack of jurisdiction because
Apolonio’s attorney had already initiated appeal proceedings by
the time Apolonio filed his pro se motion. The state appellate court
affirmed Apolonio’s convictions and sentences. Apolonio v. State,
185 So. 3d 1252 (Fla. Dist. Ct. App. 2016).
Apolonio raised the issue of ineffective assistance of trial
counsel again in a Florida Rule 3.850 motion for postconviction
relief. See Fla. R. Crim. P. 3.850. He argued, among other claims,
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that his trial attorney had induced him to enter an “open plea” by
telling him that if he did so, the judge would “treat him fairly” and
sentence him to no more than 25 years in prison. He contended
that he would not have entered his plea if he had known that the
court would impose a life sentence.
The state circuit court denied Apolonio’s Rule 3.850 motion.
It determined that Apolonio’s claim that defense counsel promised
that the court would impose a sentence of no more than 25 years
was refuted by Apolonio’s statement under oath at the change-of-
plea hearing that no one had promised him what sentence the
court would impose if he pleaded guilty. Responding to Apolonio’s
assertion that his attorney had told him to answer “no” to the
court’s questions during the plea colloquy, the court admonished
Apolonio that he could not have his plea set aside by contending
that he had committed perjury at the change-of-plea hearing.
Apolonio later filed a second Rule 3.850 motion raising
similar ineffective-assistance claims. This time, he asserted that the
district court had informed him at a hearing on April 2, 2015, that
the State had offered him 25 years in prison in exchange for a guilty
plea. Apolonio said that he asked the court for time to consider the
offer, and the court gave him 24 hours and postponed the matter
until the next day. He indicated that he had expected to be brought
back to court the next day, but “for some uncontrollable reasons”
was not brought back until April 7, the first day of trial. At that
point, Apolonio alleged, he “surrendered himself to the mercy of
the Court under the misbelieve [sic], and misadvice [sic] that the
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Judge would give him either 25 years or less; or the 25 years agreed
upon on April 2, 2015.” He alleged that he learned during the plea
hearing that he was entering an “open plea” and could be sentenced
up to life in prison, but he was not informed that the previously
offered 25-year plea deal had an expiration date. He contended that
but for his attorney’s deficient performance, he would have
accepted the 25-year offer—and in fact, thought he was doing so by
entering his plea.
The Florida court determined that Apolonio’s second
postconviction motion was procedurally barred as successive
because he had raised the same claim in his first Rule 3.850 motion.
The court therefore denied the second motion.
Apolonio turned to federal court, filing a petition for a writ
of habeas corpus pursuant to
28 U.S.C. § 2254. Apolonio again
claimed that the trial court had informed him of a 25-year plea offer
at a hearing on April 2, 2015, and that he had asked the court for
time to consider the offer. He alleged that he had initially decided
to accept the plea offer, but was not brought back to court the
following day as his attorney told him he would be. He claimed
that when he arrived for the first day of trial, his attorney told him
that the 25-year offer was still open, but that if he entered an open
plea, the trial court would sentence him to less than 25 years. He
entered his plea as advised and was shocked when the court
sentenced him to life in prison.
In Ground Two of his federal habeas petition, Apolonio
alleged that he had entered an “open plea” that was induced by his
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trial attorney’s promises that he would receive a sentence of less
than 25 years in prison. In Ground Five of the same petition, he
alleged that although no one mentioned the 25-year offer on the
day of his plea hearing, he thought that entering a plea to the court
was a necessary step toward accepting the offer. Apolonio asked
for an evidentiary hearing and for remand to the state court to
allow him to withdraw his plea and proceed to trial.
The district court denied Apolonio’s § 2254 petition. It
pointed out that Apolonio had stated under oath at the change-of-
plea hearing that no one had promised him what sentence the
court would impose if he entered a plea of guilty or no contest. It
determined that Apolonio had not shown that his attorney
promised that he would receive a 25-year sentence because he had
not overcome the presumption that his testimony at the plea
hearing was true. It also determined that the record did not
support his claim that the State had ever offered him a 25-year plea
deal.
Apolonio sought leave to appeal the district court’s order.
We issued a certificate of appealability giving him leave to appeal
on two issues: whether he was entitled to an evidentiary hearing
before the district court, and whether the district court erred in
denying his claim that trial counsel rendered ineffective assistance
by failing to advise him that the State’s plea offer expired prior to
the plea colloquy, such that his plea was not entered into
knowingly and voluntarily. We consider each issue in turn.
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II.
A.
“When a habeas petitioner seeks a hearing in federal court,
the court must first determine ‘whether the prisoner was diligent
in his efforts’ to develop the facts in state court.” Ledford v.
Warden, Georgia Diagnostic Prison,
975 F.3d 1145, 1163 (11th Cir.
2020) (quoting Williams v. Taylor,
529 U.S. 420, 435 (2000)).
Diligence in this context requires that the petitioner must at least
request an evidentiary hearing in state court. Williams,
529 U.S. at
437.
The record shows that Apolonio was not diligent in his
efforts to develop the facts supporting his claim that his counsel
was ineffective for failing to inform him that the State’s 25-year
offer expired before the plea hearing. He did not request an
evidentiary hearing in connection with his second Rule 3.850
petition—the one that included this claim. Nor did he make any
representation about what evidence he could produce in support
of his claim if he were given the opportunity.
Because Apolonio was not diligent in developing the facts in
support of his claim in state court, he was required to satisfy the
conditions of
28 U.S.C. § 2254(e)(2) to obtain an evidentiary
hearing in federal court. Ledford, 975 F.3d at 1163. That provision
requires the petitioner to first show that his claim relies on either a
previously unavailable “new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court” or
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“a factual predicate that could not have been previously discovered
through the exercise of due diligence.”
28 U.S.C. § 2254(e)(2)(A).
If the prisoner’s claim meets one of these two requirements, the
district court may hold an evidentiary hearing if the prisoner also
shows that the facts underlying his claim “would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.”
Id. § 2254(e)(2)(B).
Apolonio made no attempt to satisfy these requirements in
the district court, and he does not try to do so on appeal either.
And even reviewing his pro se briefing liberally, we cannot discern
any basis for concluding that his claim met either of the alternate
preliminary requirements in § 2254(e)(2)(A)—it did not rely on a
new rule of constitutional law or on a previously undiscovered
factual predicate. Apolonio was not entitled to an evidentiary
hearing on this claim in the district court.
B.
Turning to the ineffective-assistance-of-counsel claim for
which we granted a certificate of appealability, we first consider the
issue of procedural default. The district court determined that
Apolonio’s claim was procedurally defaulted “because the trial
court so determined in its order denying Petitioner’s second Rule
3.850 motion.” The state trial court, in turn, determined that
Apolonio’s second collateral motion was procedurally barred
because he “raised the same claim in his prior Rule 3.850 motion,
it was denied on the merits, and that ruling has been affirmed by
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the Fifth District Court of Appeal.” But the claim before us—that
Apolonio’s trial counsel was ineffective for failing to inform him
that the State’s 25-year plea offer expired before Apolonio entered
his plea—was not raised in Apolonio’s first Rule 3.850 motion, and
the Florida court never ruled on the claim on its merits. Still, the
fact that Apolonio could have raised his plea-offer-expiration claim
in his first Rule 3.850 motion and failed to do so means that the
claim probably was procedurally defaulted under Florida law in
any event. See Fla. R. Crim. P. 3.850(h)(2) (providing for dismissal
of a successive Rule 3.850 motion that raises a new ground for relief
and does not show “good cause” for omitting the claim from a prior
motion).
Ultimately, we need not untangle the question of whether
Apolonio’s claim was procedurally defaulted because it fails on the
merits. See Dallas v. Warden,
964 F.3d 1285, 1307 (11th Cir. 2020)
(“As we have said many times and as the Supreme Court has held,
a federal court may skip over the procedural default analysis if a
claim would fail on the merits in any event.”). To succeed on a
claim of ineffective assistance of counsel, the petitioner must show
that his counsel’s performance was deficient, and that the deficient
performance prejudiced him. Strickland v. Washington,
466 U.S.
668, 687 (1984). In the context of the plea negotiation process,
“defense counsel has the duty to communicate formal offers from
the prosecution to accept a plea on terms and conditions that may
be favorable to the accused.” Missouri v. Frye,
566 U.S. 134, 145
(2012). Counsel who allows an offer with a fixed expiration date to
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lapse without advising the defendant or allowing him to consider
it fails to provide the effective assistance guaranteed by the Sixth
Amendment.
Id. To demonstrate prejudice in these
circumstances, the defendant must show a reasonable probability
that, but for his counsel’s deficient performance: (1) he would have
accepted the plea offer, (2) “the plea would have been entered
without the prosecution 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.”
Id. at 147.
In his briefing in this Court, Apolonio alleges for the first
time that that he instructed his trial counsel to accept the plea offer
that was discussed at the April 2, 2015, hearing before the 24-hour
deadline set by the state trial court expired. We cannot consider
this new factual allegation as evidence supporting Apolonio’s
ineffective-assistance claim because Apolonio has not satisfied the
requirements for a federal evidentiary hearing under
28 U.S.C.
§ 2254(e)(2). See Shinn v. Ramirez,
142 S. Ct. 1718, 1738 (2022). In
any event, Apolonio’s allegation that he accepted the State’s offer
on April 2, 2015, is contradicted by his complaints to the trial court
several days later that his retained attorneys had been trying to get
him to plead to “the whole charges” instead of preparing for trial,
and his requests that the court appoint new trial counsel and give
him additional time to prepare for trial. His new position is also
inconsistent with the sworn factual allegations in his state court
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pleadings that he entered an open plea in the hope that the trial
court would “treat him fairly” and sentence him to 25 years or less.
By contending that he instructed his attorney to accept the
State’s plea offer before the 24-hour deadline expired, Apolonio
appears to have abandoned his argument that his trial counsel
failed to inform him that the offer had an expiration date. But even
if we read his pro se filings liberally to include some vestiges of that
argument, it too is refuted by the record. In his state court
pleadings, Apolonio stated under oath that when the trial court
informed him of the State’s plea offer, he asked for time to think
about it and the court “granted 24 hours.” And he reiterates in his
briefing to this Court that he “was given (24) hours to consider the
State’s offer” of 25 years in prison, and that his attorney informed
him that they would have to come back to court the next day for
the plea, “if he decided to take it.” In other words, Apolonio was
well aware that the State’s offer had an expiration date. He
therefore cannot show that his counsel performed deficiently by
failing to ensure that he knew the terms of the State’s plea offer.
On this record, Apolonio also cannot meet his burden on
Strickland’s prejudice prong because he cannot show that but for
his attorney’s alleged failure to inform him that the State’s offer had
an expiration date, he would have—and by entering his plea,
thought he had—accepted the State’s plea offer before it expired.
See Frye,
566 U.S. at 147. He contends now that he intended to
accept the State’s plea offer on the day that it was made. On the
first day of trial and during the plea hearing, however, Apolonio
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indicated that he was frustrated with his counsel for trying to
persuade him to enter a plea, that he wanted to go to trial, and that
he only decided to enter a plea on the day of trial because his
attorneys were unprepared and the trial court would not appoint
new counsel or grant him a continuance. And to the extent that
Apolonio contends that he was promised—either by the State or
by his attorney—that he would receive a sentence of 25 years in
exchange for his open plea, that assertion is contradicted by his
testimony at the change-of-plea hearing that no one had made any
promises about what sentence the court would impose if he
entered a plea.
Apolonio “bears the heavy burden of proving his ineffective-
assistance-of-counsel claim by a preponderance of the evidence.”
Ward v. Hall,
592 F.3d 1144, 1163 (11th Cir. 2010). He cannot meet
his burden on this record because his allegations that he was not
informed that the State’s plea offer would expire and that he was
promised a 25-year sentence in exchange for his plea are
contradicted by his own statements elsewhere in the record.
III.
Apolonio was not entitled to an evidentiary hearing in
federal court because he failed to develop the factual basis for his
claim in state court and he did not satisfy the requirements for an
evidentiary hearing under
28 U.S.C. § 2254(e)(2). Based on the
state court record, Apolonio failed to show that his trial attorney
provided ineffective assistance by not informing him that the
State’s plea had an expiration date—or, even assuming that counsel
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performed deficiently, that he was prejudiced as a result. We
therefore affirm the district court’s denial of Apolonio’s § 2254
petition.
AFFIRMED.
