Lester Fisher v. Secretary, Florida Department of Corrections , 616 F. App'x 916 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15223
Non-Argument Calendar
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D.C. Docket No. 8:13-cv-00489-JSM-TBM
LESTER FISHER,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 24, 2015)
Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Petitioner Lester Fisher, a Florida state prisoner, appeals the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition. In support of his claim for
habeas relief, Petitioner argues that trial counsel was ineffective for failing to
advise him during plea negotiations that he faced a potential 40-year sentence, with
a 30-year mandatory minimum, if sentenced as a Violent Career Criminal
(“VCC”), and that as a result, he chose to reject the more favorable plea offer made
by the State of Florida (“the State”) and to proceed to trial. The Florida court
rejected Petitioner’s ineffective assistance argument in state post-conviction
proceedings, finding after a hearing that he had failed to show prejudice. We agree
with the district court that the Florida court’s decision was based neither on an
unreasonable determination of the facts nor on an unreasonable application of
clearly established federal law. Accordingly, we affirm.
I. Background
A. State Criminal Conviction
In March 2005, Petitioner was charged in a Florida state court with one
count of second-degree robbery. Around the same time, Petitioner was separately
charged with three additional robberies, as well as burglary and possession of
drugs and drug paraphernalia. After unsuccessful global plea negotiations,
Petitioner proceeded to trial in the second-degree robbery case (which is the only
conviction at issue in this habeas petition and appeal), and a jury found him guilty.
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The Florida court found that Petitioner qualified as a VCC based on his criminal
history, and imposed the maximum sentence available under the VCC statute: 40
years in prison, with a minimum of 30 years to serve. The Florida appellate court
affirmed Petitioner’s conviction and sentence on direct appeal.
B. State Post-Conviction Proceedings
In October 2007, Petitioner filed a motion for state post-conviction relief
pursuant to Florida Rule of Criminal Procedure 3.850. Among numerous other
grounds for relief asserted in his Rule 3.850 motion, Petitioner argued that his
attorney was ineffective by failing to advise Petitioner prior to trial that, if
convicted, he potentially faced a 40-year maximum sentence, with 30 years
mandatory to serve, as a VCC. Petitioner argued further that, had he been aware of
his eligibility for VCC status, and of the maximum and mandatory minimum
sentence associated with that status, he would have accepted the State’s plea offer
of a 15-year sentence to resolve all of the charges against him. 1
The Florida court held an evidentiary hearing on Petitioner’s ineffective
assistance claim, at which both Petitioner and his trial counsel, Maria Pavlidis,
testified. Petitioner indicated in his testimony that Pavlidis had advised him of the
1
The record indicates that the State offered Petitioner an 18-year and then a 15-year
sentence. Petitioner testified at his Rule 3.850 evidentiary hearing that the State made separate
18-year and 15-year plea offers. However, his trial counsel’s testimony and notes only reflected
an 18-year offer. For ease of reference, and to give Petitioner the benefit of the doubt, we will
refer to the plea offer as being for a 15-year sentence.
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15-year plea offer, and had told him about several sentencing enhancements that
would potentially apply if he rejected the offer, including the Habitual Felony
Offender (“HFO”) enhancement, the Prison Release Reoffender (“PRR”)
enhancement, and the Habitual Violent Felony Offender (“HVFO”) enhancement.
Petitioner testified that, based on his discussions with Pavlidis, he understood that
he would likely face a sentence of 30 years in prison if convicted on the second-
degree robbery charge. However, Petitioner stated that Pavlidis neglected to tell
him about his potential VCC status, and he was thus unaware that he actually faced
a 40-year sentence, with 30 years minimum to serve. Petitioner testified that he
would have accepted the State’s 15-year plea offer if he had known the full extent
of his exposure under the VCC statute.
Pavlidis acknowledged in her testimony that she had not explained the VCC
enhancement to Petitioner prior to trial because she was unaware that the State
would pursue such an enhancement. She testified, however, that she had discussed
with Petitioner the fact that he faced a maximum sentence of 85 years on all of his
charges without any enhancements, and that Petitioner could potentially be
sentenced to 30 years for each robbery as a Habitual Violent Felon, resulting in a
total of 120 years if the sentences on each robbery charge were imposed
consecutively. Pavlidis testified further that she had advised Petitioner that the
trial court might well impose maximum, consecutive sentences on each robbery
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count because of his lengthy criminal record, which included 20 or 21 prior
robberies. According to Pavlidis, the State’s 15-year offer would have disposed of
all four of Petitioner’s pending robbery charges, in addition to the other charges
against him.
Based on the above testimony, the Florida court denied Petitioner’s
ineffective assistance claim. Specifically, the Florida court found that Petitioner
could not demonstrate that he was prejudiced by trial counsel’s alleged deficiency
in failing to inform him about the sentencing consequences of a VCC
enhancement. In reaching this conclusion, the Florida court found it significant
that Petitioner had rejected the State’s 15-year plea offer to resolve all of his
pending cases, despite knowing that he faced a maximum exposure that was
significantly higher than the 40-year sentence he received as a VCC. Given that
fact, the Florida court found that Petitioner’s testimony that he would have
accepted the plea offer if he had known about the VCC enhancement was not
credible. Petitioner appealed this decision to the Florida appellate court, which
affirmed without opinion.
C. Federal Habeas Petition
Petitioner subsequently filed the present § 2254 petition, asserting multiple
grounds for relief. As relevant to this appeal, Petitioner alleged that trial counsel
was ineffective for failing to advise him of his eligibility for VCC status and the
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sentencing implications of that status. The district court denied the petition on all
grounds, specifically concluding that the Florida court’s decision on the ineffective
assistance claim was not based on an unreasonable determination of the facts or an
unreasonable application of clearly established federal law. This Court granted a
certificate of appealability as to whether Petitioner’s trial counsel “was ineffective
for misadvising him of his potential sentencing exposure.”
II. Discussion
A. Standard of Review
We review a district court’s denial of a habeas petition under 28 U.S.C.
§ 2254 de novo. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245
(11th Cir. 2014). Although we review the district court’s factual findings for clear
error, we review its rulings on questions of law and mixed questions of law and
fact de novo. Id. An ineffective assistance claim “presents a mixed question of
law and fact that we review de novo.” Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d
1254, 1261 (11th Cir. 2014).
B. Availability of Federal Habeas Relief
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets
a high bar for granting federal habeas relief on a claim that the state court has
adjudicated on the merits. See White v. Woodall, 134 S. Ct. 1697, 1702 (2014)
(noting the difficulty of obtaining habeas relief under AEDPA); Harrington v.
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Richter, 562 U.S. 86, 102 (2011) (“If this standard is difficult to meet, that is
because it was meant to be.”). Under AEDPA, a federal court may only grant
habeas relief on such a claim if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established [f]ederal law” or “was
based on an unreasonable determination of the facts in light of the evidence
presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d). As discussed
below, neither requirement is met in this case.
1. The Florida court’s decision that Petitioner failed to show
prejudice is not based on an unreasonable determination of the
facts in light of the evidence presented.
To prevail on this prong of § 2254(d), a petitioner must do more than
convince the federal habeas court that it would have made a different factual
determination than the state court. Landers v. Warden, Att’y Gen. of Ala., 776 F.3d
1288, 1294 (11th Cir. 2015). Instead, the petitioner must satisfy the “substantially
higher threshold” of showing that the state court’s factual determination was
“objectively unreasonable” based on the evidence presented in the state court
proceeding. Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007) and
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)) (internal quotation marks
omitted). The Supreme Court has found that this standard was satisfied when “the
direction of the evidence, viewed cumulatively, was ‘too powerful to conclude
anything but’” a petitioner’s factual claim. Id. (quoting Miller-El v. Dretke, 545
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U.S. 231, 265 (2005)). We have further explained that a state court’s factual
finding is unreasonable if “no ‘fairminded jurist’ could agree” with it. Id. (quoting
Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012)).
Petitioner contends that the Florida court’s prejudice ruling was based on an
unreasonable determination that Petitioner was aware that his exposure on the one
second-degree robbery charge that he took to trial was 85 to 120 years in prison.
However, read in context, it is clear that what the Florida court actually found was
that Petitioner rejected the 15-year plea offer knowing that his maximum exposure
on all of his pending charges, including the four robberies and the burglary and
drug possession charges, was 85 to 120 years. That finding was reasonable, as it
was directly supported by Pavlidis’s testimony that she advised Petitioner during
the plea negotiations that he faced a maximum unenhanced sentence of 85 years on
all of his cases, and an enhanced sentence of 30 years on each robbery that, if
imposed consecutively, would amount to 120 years.
Petitioner alternatively suggests that it was unreasonable for the Florida
court to consider his knowledge about the maximum sentence that could be
imposed if convicted in all of his cases to determine whether he was prejudiced in
this case. We disagree. To establish prejudice, Petitioner had to demonstrate a
reasonable probability that he would have accepted the plea if he had been advised
about the maximum 40-year sentence and the 30-year mandatory minimum
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applicable under the VCC statute. See Lafler v. Cooper, 566 U.S. __, 132 S. Ct.
1376, 1385 (2012) (holding that to show prejudice in the context of a foregone
guilty plea, a petitioner must show, inter alia, that, but for the ineffective
assistance of counsel, there is a reasonable probability that he would have accepted
the plea offer); Osley v. United States, 751 F.3d 1214, 1223 (11th Cir. 2014)
(affirming the denial of a § 2255 motion to vacate on the ground that the movant
failed to establish a reasonable probability that he would have accepted a plea offer
because he had already refused to accept a deal that proposed a significantly lower
sentence). The fact that Petitioner rejected a 15-year plea offer to dispose of
numerous cases that he knew potentially carried a 120-year combined sentence is
unquestionably relevant to this inquiry. 2 See Osley, 751 F.3d at 1224 (finding that
the movant’s claim that he would have accepted a plea offer had he known that he
faced a guideline range of up to 262 months, instead of 121 months, and included a
15-year mandatory minimum, was undermined by the fact that he turned down a
plea of 70-87 months knowing his maximum exposure at trial was life
imprisonment); cf. Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003)
(“Other panels in this and other circuits have pointed to the disparity between the
plea offer and the potential sentence exposure as strong evidence of a reasonable
2
Petitioner notes that one of his robbery charges was dismissed before trial. Assuming
that is true, and that the 15-year plea deal was still an offer to resolve the remaining cases,
Petitioner still decided to forego the offer knowing that he faced 90 years on the remaining three
robbery charges.
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probability that a properly advised defendant would have accepted a guilty plea
offer.”).
Finally, Petitioner argues that the Florida court’s credibility finding was
unreasonable because his testimony that he would have accepted the plea offer if
he had been advised about his sentencing exposure as a VCC was “uncontested.”
This argument mischaracterizes the evidence presented at the state post-conviction
hearing. Although Petitioner did testify that he would have accepted the plea if he
had been aware of the 40-year maximum/30-year mandatory minimum sentence
that could be imposed under the VCC statute, his credibility on that point was
called into question by Pavlidis’s testimony that: (1) Petitioner rejected the State’s
15-year plea offer in spite of her advice (a) that he could potentially be sentenced
to 120 years if convicted in all of the cases that the plea would resolve and (b) that
the trial court might well impose maximum, consecutive sentences in each case,
given Petitioner’s lengthy prior record (which included 20 robberies); (2)
Petitioner stated unequivocally that he would not accept any sentence that required
more than five years in prison; and (3) Petitioner’s steadfast refusal to accept more
than five years in prison ended plea negotiations. Based on Pavlidis’s testimony,
the Florida court reasonably found that Petitioner’s claim that he would have
accepted the 15-year plea offer if he had been aware of the potential VCC
enhancement was not credible. See Bishop v. Warden, GDCP, 726 F.3d 1243,
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1259 (11th Cir. 2013) (concluding that, absent clear and convincing evidence, this
Court has no power to revisit the state court’s credibility determinations).
2. The Florida court did not unreasonably apply clearly
established federal law.
A state court decision is “contrary to” clearly established federal law if it
applies a rule that contradicts the governing Supreme Court precedent or arrives at
a different result than the Supreme Court in the face of materially indistinguishable
facts. Burton v. Comm’r, Ala. Dep’t of Corr., 700 F.3d 1266, 1269 (11th Cir.
2012). An “unreasonable application” of clearly established federal law occurs if
the state court correctly identifies the governing legal principle from Supreme
Court precedent but “unreasonably applies it to the facts of the particular case.” Id.
(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)) (quotation marks omitted).
Relief is not available under this prong of § 2254(d) if the state court’s application
of federal law is “merely wrong.” Woodall, 134 S. Ct. at 1702. Rather, the
application must be “objectively unreasonable” to warrant relief. Id. (the state
court’s error must be “well understood and comprehended in existing law beyond
any possibility for fairminded disagreement”).
The Florida court’s decision clearly was not “contrary” to federal law, as it
correctly identified the governing legal principles from the relevant Supreme Court
authority. In Strickland v. Washington, the Supreme Court held that, to prevail on
a claim of ineffective assistance of counsel, a petitioner must demonstrate that (1)
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counsel’s performance was deficient, falling below an objective standard of
reasonableness, and (2) the petitioner suffered prejudice as a result of the deficient
performance. 466 U.S. 668, 687-88 (1984). The Supreme Court later clarified
that, to show prejudice in the context of a foregone guilty plea, the petitioner must
show that he would have accepted the plea offer but for the ineffective advice of
counsel. Lafler, 566 U.S. at ___, 132 S. Ct. at 1385.
While the Florida court did not cite to either Strickland or Lafler, 3 it
determined that Petitioner had to show prejudice in order to prevail on his claim, as
required by Strickland. The Florida court further determined that in order to
establish prejudice, Petitioner had to show a reasonable probability that he would
have accepted the plea, as required by Lafler. Accordingly, the court correctly
identified the governing legal principles, and thus, its decision was not contrary to
federal law. Petitioner does not cite any materially indistinguishable Supreme
Court cases that arrive at a different result.
Neither was the Florida court’s prejudice determination an “unreasonable
application” of federal law. In denying Petitioner’s Rule 3.850 motion, the Florida
3
In fact, the Florida court could not have cited to Lafler as that case was decided in
March 2012, and the Florida court issued its decision in January 2011. However, the Florida
court nevertheless applied the principle set forth in Lafler, as the decision in Lafler confirmed
this Court’s approach to prejudice in previous cases examining the question of prejudice in a
guilty plea context. See Coulter v. Herring, 60 F.3d 1499, 1503-04 (11th Cir. 1995) (holding
that to succeed on an ineffective assistance of counsel claim based on a foregone guilty plea, a
petitioner must show that there was a reasonable probability that, but for counsel’s errors, he
would have pleaded guilty and not insisted on going to trial).
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court did not consider whether counsel’s performance was deficient, but instead
denied Petitioner’s claim based solely on Strickland’s prejudice prong. Such an
approach does not make the determination unreasonable, as we have held that if
the petitioner makes an insufficient showing on the prejudice prong, the court need
not address the performance prong, and vice-versa. See Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000).
Finally, and as discussed above, the Florida court reasonably found, based
on the evidence presented, that Petitioner could not show that he would have
accepted the plea offer had he known of the 40-year maximum/30-year mandatory
minimum sentences applicable under the VCC. Such a showing is required by
Lafler. Accordingly, Petitioner cannot prevail on the “unreasonable application”
prong of § 2254(d).
III. Conclusion
For the reasons stated above, we affirm the denial of Petitioner’s § 2254
petition for a writ of habeas corpus.
AFFIRMED.
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