Case: 19-12789 Date Filed: 08/25/2020 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12789
Non-Argument Calendar
________________________
D.C. Docket No. 5:16-cv-00587-RBD-PRL
DAVID DUNHAM,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 25, 2020)
Before JORDAN, NEWSOM, and LAGOA, Circuit Judges.
PER CURIAM:
Case: 19-12789 Date Filed: 08/25/2020 Page: 2 of 14
David Dunham (“Dunham”), a Florida prisoner, appeals from the district
court’s denial of his 28 U.S.C. § 2254 petition. We granted a certificate of
appealability (“COA”) on one issue: whether Dunham’s counsel rendered
constitutionally ineffective assistance by advising Dunham to enter a nolo
contendere plea without making Dunham fully aware of the potential maximum
sentence he could receive. For the reasons stated below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Dunham was charged with twenty counts of second- and third-degree
possession of child pornography. Dunham agreed to enter a no contest plea to all
twenty counts and signed a “Petition to Enter Plea of Guilty/Nolo Contendere” (the
“Petition to Enter Plea”) on February 25, 2013. In the Petition to Enter Plea,
Dunham agreed that his trial counsel, George Mason, had discussed his case with
him and that Dunham was “fully satisfied with [his] attorney’s representation” in the
case. Dunham also acknowledged that: (1) he was advised that the statutory
maximum possible sentence for the charges was 240 years; (2) if Mason told
Dunham he might receive a light sentence, that was “merely [Mason’s] opinion or
estimate and [was] not binding on the Judge”; and (3) Mason did not make any
promise, directly or indirectly, to Dunham.
At Dunham’s plea colloquy, Mason stated that Dunham was entering an open
no contest plea. After placing Dunham under oath, the state trial court advised
2
Case: 19-12789 Date Filed: 08/25/2020 Page: 3 of 14
Dunham that he was charged with a total of twenty counts that each carried a
maximum sentence of fifteen years of imprisonment. Mason stated that Dunham
understood the maximum sentence was 240 years, and Dunham confirmed that he
understood the penalties. Dunham stated that he was satisfied with Mason’s work,
that they had “spent a lot of time” discussing the case, and that no one had promised
him anything in exchange for his plea. Dunham then pleaded no contest to the
twenty counts, confirming that he understood the rights he was waiving and the
maximum penalties on the charges he faced.
On September 30, 2013, Dunham was sentenced to 180 months of
imprisonment on the second-degree convictions and to a consecutive 25.8 months
on the third-degree convictions, for a total of 205.8 months of imprisonment. On
October 8, 2013, Dunham filed a motion to withdraw the plea. In this motion,
Dunham claimed that Mason had failed to file a motion for downward departure,
that Dunham had “entered an open plea based upon the representations of trial
counsel . . . that [he] could receive a substantially lesser sentence than that plea offer
made by the Office of the State,” and that Mason’s “representations regarding the
potential discretion of the trial court forced [Dunham] to enter an open plea . . . and
made the plea involuntary.” The state trial court denied this motion. Dunham
subsequently filed a motion to modify his sentence, which was denied. Dunham
appealed, and the Florida Fifth District Court of Appeal dismissed his appeal as
3
Case: 19-12789 Date Filed: 08/25/2020 Page: 4 of 14
untimely but without prejudice for Dunham to seek a belated appeal. Dunham,
however, never sought a belated appeal.
On May 15, 2014, Dunham filed a state postconviction motion, arguing, in
relevant part, that his plea was involuntary because he did not understand the
consequences of his plea, that he was misled by Mason to believe that he would
receive a sentence of two years of community control if he entered the plea, and that
he would not have pleaded but for Mason’s misrepresentations. The state
postconviction court held an evidentiary hearing on Dunham’s motion, at which
Dunham and Mason both testified. At the hearing, Dunham testified that it was his
intent to go to trial to prove his innocence but that he decided to enter a plea during
a conversation he had with Mason the day of the plea hearing. Dunham testified that
Mason told him that Mason was not prepared to go to trial and that he would get
Dunham a sentence of two years of house arrest if Dunham pleaded no contest to all
of the charges. Dunham further testified that he understood that there was a risk he
could go to prison but did not understand that he could receive a 205.8-month
sentence. Dunham also testified that he understood the penalties he faced by
pleading but claimed that he initialed the Petition to Enter Plea with the
understanding that the document was simply a formality, as Mason did not go over
the petition form in detail with him.
4
Case: 19-12789 Date Filed: 08/25/2020 Page: 5 of 14
In contrast, Mason testified that he never promised Dunham a sentence of two
years of community control or house arrest if Dunham pleaded no contest. Rather,
Mason testified that he and Dunham had an “aspirational” goal that Dunham “would
have substantial mitigation to present” at sentencing relating to his health, age, and
lack of criminal history. Mason further testified that he discussed the consequences
of entering the plea and the range of possible sentences with Dunham, including the
fact that the judge could deviate below the guidelines if they provided mitigation.
Mason also testified that he went over the Petition to Enter Plea on multiple
occasions with Dunham and that Dunham did not want to go trial, as Dunham
believed it was in his best interest to enter a plea and hope for mercy from the court
due to mitigation. Finally, Mason testified that the decision to enter a plea was made
months before the plea hearing and that if Dunham had not wanted to enter a plea,
Mason would have represented him at trial.
On July 14, 2015, the state postconviction court denied Dunham’s motion. As
to Dunham’s plea-related claim, the state postconviction court, after reviewing the
record evidence and testimony from the evidentiary hearing, found the claim to be
without merit. The state postconviction court noted that portions of Dunham’s
testimony were in direct conflict with Mason’s testimony and found, based on its
observations, that Mason was more credible than Dunham. As such, the court
“resolve[d] any conflicts in testimony in favor of Mr. Mason being the more credible
5
Case: 19-12789 Date Filed: 08/25/2020 Page: 6 of 14
witness.” Dunham subsequently appealed the state postconviction court’s denial of
his motion, which the Florida Fifth District Court of Appeal affirmed without a
written opinion.
On September 9, 2016, Dunham filed a pro se § 2254 petition that raised five
grounds for relief, including the claim that Mason failed to effectively represent him
by misadvising Dunham about the consequences of his plea and that, as a result, his
plea was involuntarily entered. As to this claim, Dunham asserted that Mason
advised him that a no contest plea would only result in two years of house arrest and
further asserted that he would not have entered the plea if he had known that he
would not receive a house arrest sentence. Dunham alleged that he had wanted to
go to trial but Mason informed him that Mason was not ready for trial and that, as a
result, Dunham felt he had no choice but to take a plea. Dunham admitted that he
and Mason had discussed the minimum and maximum sentences he could face under
the sentencing guidelines but claimed that Mason told him the trial court could go
below the guidelines’ range of possible sentences.
The district court denied Dunham’s petition. The district court explained that
sworn statements on the record were presumed to be true and noted that Dunham
had sworn in his plea colloquy that he understood the maximum sentence he could
receive and that he had received no promises in exchange for his plea. Reviewing
the state court’s ruling regarding the plea-related claim, the district court found the
6
Case: 19-12789 Date Filed: 08/25/2020 Page: 7 of 14
state court’s decision to be reasonable “in accord with, and not contrary to,”
Strickland v. Washington, 466 U.S. 668 (1984), and that it was not “unreasonable[]
in light of the evidence presented in the state court proceedings.”
This Court subsequently granted Dunham a COA on the issue of whether
Mason rendered constitutionally ineffective assistance of counsel by advising
Dunham to enter a nolo contendere plea without making Dunham fully aware of the
potential severity of the sentence Dunham could receive for his convictions. This
appeal ensued.
II. STANDARD OF REVIEW
We review de novo the district court’s denial of a habeas corpus petition.
McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Under 28 U.S.C.
§ 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), after a state court has adjudicated a claim on the merits, a federal court
may grant habeas relief only if the state court’s decision was (1) “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,” or (2) “based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.”
Therefore, “[w]e review de novo the district court’s decision about whether the state
court acted contrary to clearly established federal law, unreasonably applied federal
law, or made an unreasonable determination of fact.” Reed v. Sec’y, Fla. Dep’t of
7
Case: 19-12789 Date Filed: 08/25/2020 Page: 8 of 14
Corr., 593 F.3d 1217, 1239 (11th Cir. 2010) (quoting Smith v. Sec’y, Dept’ of Corr.,
572 F.3d 1327, 1332 (11th Cir. 2009)).
While we review the district court’s decision de novo, we “owe deference to
the final state habeas judgment.” Id. (quoting Peterka v. McNeil, 532 F.3d 1199,
1200 (11th Cir. 2008)). Indeed, pursuant to AEDPA, there is a “highly deferential
standard for evaluating state-court rulings,” Renico v. Lett, 559 U.S. 766, 773 (2010)
(quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)), which “demands that state-
court decisions be given the benefit of the doubt,” id. (quoting Woodford v. Visciotti,
537 U.S. 19, 24 (2002)). Thus, “[t]he question under AEDPA is not whether a
federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007); accord Reed, 593 F.3d at 1239. The
“unreasonable application” inquiry requires that the state court decision “be more
than incorrect or erroneous”—it must be “objectively unreasonable.” Lockyer v.
Andrade, 538 U.S. 63, 75 (2003). A petitioner “must show that the state court’s
ruling . . . was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
White v. Woodall, 572 U.S. 415, 419–20 (2014) (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). Additionally, a state court’s factual determinations are entitled
to a presumption of correctness, and the applicant has the burden of rebutting the
8
Case: 19-12789 Date Filed: 08/25/2020 Page: 9 of 14
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); accord
Nejad v. Att’y Gen., Ga., 830 F.3d 1280, 1289 (11th Cir. 2016).
III. ANALYSIS
On appeal, Dunham argues that the district court erred in denying his claim
that Mason was ineffective for advising him to enter a nolo contendere plea without
making him aware of the potential severity of his sentence. Dunham further argues
that the record shows that, but for Mason’s deficiency, Dunham would have
proceeded to trial rather than enter the plea. As such, Dunham claims that his plea
was not knowing and voluntary and that he should be entitled to have his plea
withdrawn.
The Sixth Amendment to the United States Constitution guarantees criminal
defendants the right to the assistance of counsel during criminal proceedings against
them. Strickland v. Washington, 466 U.S. 668, 684–85 (1984). To prevail on a
claim of ineffective assistance of counsel, a petitioner must demonstrate that: (1) his
or her counsel’s performance was deficient, i.e., the performance “fell below an
objective standard of reasonableness”; and (2) he or she suffered prejudice as a result
of that deficiency. Id. at 687–88. To establish deficient performance, the defendant
must show that, “in light of all the circumstances,” counsel’s “identified actions or
omissions were outside the wide range of professionally competent assistance.” Id.
9
Case: 19-12789 Date Filed: 08/25/2020 Page: 10 of 14
at 690. “There is a strong presumption that trial counsel’s conduct is the result of
trial strategy.” Sinclair v. Wainwright, 814 F.2d 1516, 1519 (11th Cir. 1987).
Regarding the prejudice component, “[t]he defendant must show that 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. A
reasonable probability is one “sufficient to undermine confidence in the outcome.”
Id. “It is not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding.” Id. at 693. The two-part Strickland test
also applies to challenges to pleas based on ineffective assistance of counsel, Hill v.
Lockhart, 474 U.S. 52, 58 (1985), and to show prejudice in a challenge to a plea, the
petitioner “must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded . . . and would have insisted on going to trial.” Id.
at 59.
A habeas petitioner must carry his burden on both Strickland prongs to
demonstrate ineffective assistance of counsel. Bishop v. Warden, GDCP, 726 F.3d
1243, 1254 (11th Cir. 2013). “[A] court need not address both prongs if the
petitioner has made an insufficient showing on one of them.” Id. (quoting
Strickland, 466 U.S. at 697).
Moreover, when the deferential standard of Strickland is combined with the
deferential standard of AEDPA as to the matter of performance, the result is a doubly
10
Case: 19-12789 Date Filed: 08/25/2020 Page: 11 of 14
deferential standard of review in federal court. Harrington v. Richter, 562 U.S. 86,
105 (2011). “[T]he question is not whether counsel’s actions were reasonable,” but
rather, “whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.; accord Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
As we have previously explained, “[i]t was meant to be, and is, difficult for a
petitioner to prevail under that stringent standard.” Nance v. Warden, Ga.
Diagnostic Prison, 922 F.3d 1298, 1301 (11th Cir. 2019), cert. denied, 140 S. Ct.
2520 (2020).
To support his argument that Mason rendered ineffective assistance of
counsel, Dunham points to his testimony from the state postconviction evidentiary
hearing that Mason never informed him that he could receive a maximum sentence
of 240 years and that Dunham pleaded because Mason told him that he could receive
a sentence of two years of house arrest. This argument is without merit.
Here, we “look through” the Florida Fifth District Court of Appeal’s summary
affirmance to the state postconviction court’s order, which was the last reasoned
adjudication on the merits of Dunham’s claim. Wilson v. Sellers, 138 S. Ct. 1188,
1192 (2018) (holding that a federal habeas court reviewing an unexplained state-
court decision on the merits should “look through” that decision to “the last related
state-court decision” that provides a relevant rationale and “then presume that the
unexplained decision adopted the same reasoning”). In denying Dunham’s plea-
11
Case: 19-12789 Date Filed: 08/25/2020 Page: 12 of 14
related claim, the state postconviction court reviewed the record and found that
Dunham understood his maximum sentence and the rights he was giving up when
entering the plea. Indeed, the transcript of the plea colloquy shows that Dunham
stated, under oath, that he understood the maximum sentence he could receive was
240 years in prison. A defendant’s “[s]olemn declarations in open court carry a
strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Dunham also acknowledged the maximum sentence he could receive in the Petition
to Enter Plea, which he signed.
Furthermore, the state postconviction court determined that Mason’s
testimony was more credible than Dunham’s testimony and resolved all conflicts in
favor of Mason. “Determining the credibility of witnesses is the province and
function of the state courts, not a federal court engaging in habeas review.”
Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011). Thus,
“[f]ederal habeas courts have ‘no license to redetermine credibility of witnesses
whose demeanor has been observed by the state trial court, but not by them.’” Id.
(quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). When a state court is
“presented with squarely conflicting testimony on [a] critical factual dispute,” we
are “powerless to revisit [the state court’s credibility determination] on federal
habeas review” absent “clear and convincing evidence in the record to rebut this
credibility judgment.” See Nejad, 830 F.3d at 1292.
12
Case: 19-12789 Date Filed: 08/25/2020 Page: 13 of 14
At the evidentiary hearing, Mason testified that he never told Dunham that he
would only receive two years of house arrest if he entered a plea, but instead that
their strategy was to present “substantial mitigation” at sentencing for Dunham to
receive a lower sentence. Mason also testified that he discussed the consequences
of entering the plea and the range of possible sentences with Dunham, that he went
over the Petition to Enter Plea multiple times with Dunham, and that the decision to
enter a plea was made months before the plea hearing. While Dunham presented
conflicting testimony, the state postconviction court was entitled to make a
credibility determination in favor of Mason to resolve the conflicting testimony. The
state postconviction court’s factual findings, including its credibility determinations,
are entitled to a presumption of correctness, and Dunham has not presented clear and
convincing evidence to rebut this presumption. See id. at 1289.
Indeed, the state postconviction court’s factual findings are not an
“unreasonable determination of the facts in light of the evidence presented” in the
state court proceedings. See 28 U.S.C. § 2254(d). Because Mason advised Dunham
on the possible range of sentences that the court could impose if he entered a plea—
including the maximum sentence of 240 years—and because Dunham testified under
oath at the plea colloquy that he was aware of the possible maximum sentence, there
is a reasonable argument that Mason satisfied Strickland’s deferential standard
regarding whether Mason’s representation of Dunham fell within the wide range of
13
Case: 19-12789 Date Filed: 08/25/2020 Page: 14 of 14
professional competence. See Harrington, 562 U.S. at 105. We therefore find that
the state postconviction court’s denial of Dunham’s plea-related claim was not
contrary to or an unreasonable application of Strickland.
Accordingly, we affirm the district court’s order denying Dunham’s habeas
petition.
AFFIRMED.
14