[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 2, 2007
No. 06-13994 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01368-CV-ORL-22-JGG
DANNY KEITH BROWN,
Petitioner-Appellant,
versus
FLORIDA ATTORNEY GENERAL,
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 2, 2007)
Before TJOFLAT, BARKETT and HULL , Circuit Judges.
PER CURIAM:
Danny Keith Brown, a Florida prisoner serving a 25-year sentence for
solicitation to commit first-degree murder, filed the present pro se federal habeas
corpus petition pursuant to 28 U.S.C. § 2254. Because Brown filed his petition
after the effective date of the Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), the provisions of that
act govern the present appeal. We granted Brown a certificate of appealability
only as to the issue of whether he received ineffective assistance of trial counsel as
a result of counsel’s failure to fully advise him about the nature of the charges
against him as well as any potential defenses that may have been raised and, if so,
whether counsel’s ineffectiveness rendered his plea involuntary and unknowing.
On appeal, Brown argues that because the Florida post-conviction court did
not adjudicate the merits of his ineffective assistance of counsel claim or his
assertion that defense counsel never advised him of the nature of the charges or his
potential defenses,1 the provisions of § 2254(d) cannot be applied, and his claim
must be reviewed de novo. Brown also argues that he is entitled to have his
petition remanded to district court and to an evidentiary hearing on this claim.
I.
We review de novo a district court’s grant or denial of habeas corpus
1
This point is refuted by the record, as noted infra.
2
petition under 28 U.S.C. § 2254. Sims v. Singletary, 155 F. 3d 1297, 1304 (11th
Cir. 1998). Federal courts are forbidden from granting habeas relief on claims that
were previously adjudicated in state court, unless the adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
To be “contrary to” clearly established federal law, the state court must
either (1) apply a rule “that contradicts the governing rule set forth by Supreme
Court case law,” or (2) reach a different result from the Supreme Court “when
faced with materially indistinguishable facts.” Putnam v. Head, 268 F.3d 1223,
1241 (11th Cir. 2003). And, for a writ to issue because the state court made an
“unreasonable determination of the facts,” the petitioner must rebut “the
presumption of correctness [of a state court's factual findings] by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
As to the state court’s findings of fact, federal courts determine whether the
state court’s finding was based on “an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C.
3
§ 2254(d)(2). Contrary to Brown’s claim that his assertions should have been
accepted as true, a state court’s determinations of fact are “presumed to be correct,”
and the habeas petitioner has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
However, the statutory presumption of correctness applies only to findings of fact
made by the state court, not to mixed determinations of law and fact. McBride v.
Sharpe, 25 F.3d 962, 971 (11th Cir. 1994).
Furthermore, if an applicant has failed to develop the factual basis of a claim
in state court proceedings, the district court shall not hold an evidentiary hearing
on the claim unless the applicant shows that the claim relies on a new rule of
constitutional law or a factual predicate that could not have been previously
discovered through the exercise of due diligence. 28 U.S.C. § 2254(e)(2)(A); See
Chandler v. McDonough, 471 F.3d 1360, 1362 (11th Cir. 2006). In addition, the
facts underlying the claim must 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. 28 U.S.C. § 2254(e)(2)(B).
The district court’s findings of fact are reviewed under the clearly erroneous
standard. Cunningham v. Zant, 928 F.2d 1006, 1011 (11th Cir. 1991). Mixed
questions of law and fact are reviewed de novo, as are questions of law. Jacobs v.
4
Singletary, 952 F.2d 1282, 1288 (11th Cir. 1992).
The Sixth Amendment provides that a criminal defendant shall have the
right to “the assistance of counsel for his defense.” To make a successful claim of
ineffective assistance of counsel, a defendant must show that: (1) his counsel’s
performance was deficient; and, (2) that the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674 (1984). In determining whether counsel gave adequate assistance,
“counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. at
690, 104 S.Ct. at 2066. Counsel’s performance is deficient only if it falls below the
wide range of competence demanded of attorneys in criminal cases. Id. at 688, 104
S.Ct. at 2065. To make such a showing, a defendant must demonstrate that “no
competent counsel would have taken the action that his counsel did take.” United
States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003) (quotation omitted).
To establish prejudice, the 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.” Id. at 694, 104 S. Ct. 2068. “The cases in
which habeas petitioners can properly prevail on the ground of ineffective
assistance of counsel are few and far between.” Rogers v. Zant, 13 F.3d 384, 386
5
(11th Cir. 1994). Unless the petitioner can rebut the “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance,” he cannot show that counsel’s performance was constitutionally
deficient. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “The test has nothing to
do with what the best lawyers would have done. Nor is the test even what most
good lawyers would have done. We ask only whether some reasonable lawyer at
the trial could have acted, in the circumstances, as defense counsel acted at trial.”
White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992). An attorney is not
ineffective for failing to raise a nonmeritorious issue. United States v. Winfield,
960 F.2d 970, 974 (11th Cir. 1992).
A defendant claiming ineffective assistance of counsel in the context of a
guilty plea must show not only that counsel committed professional error, but also
a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52,
58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). We have held that “counsel
owes a lesser duty to a client who pleads guilty than to one who decides to go to
trial, and in the former case counsel need only provide his client with an
understanding of the law in relation to the facts, so that the accused may make an
informed and conscious choice between accepting the prosecution’s offer and
6
going to trial.” Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984).
“To impart such an understanding to the accused, counsel must, after making an
independent examination of the facts, circumstances, pleadings and laws involved,
offer his informed opinion as to the best course to be followed in protecting the
interests of his client.” Id. “The rule that a plea must be intelligently made to be
valid does not require that a plea be vulnerable to attack if the defendant did not
correctly assess every relevant factor entering into his decision.” Id. at 1509.
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error. As discussed below, we affirm because Brown has not
alleged any facts or presented any evidence to show that either prong of § 2254(d)
is met, or to rebut the presumption of correctness we must afford the state court
finding that his claims were conclusively refuted by the record. See 28 U.S.C.
§ 2254(e)(1).
In this case, the record shows that the state court, in denying Brown’s Rule
3.850 motion, did address his ineffective assistance of counsel claim, and that the
resulting decision was not contrary to, or involved an unreasonable application of,
clearly established federal law. Here, the state court cited to and properly applied
the two prong test set forth in Strickland v. Washington, namely, whether Brown’s
counsel’s performance was deficient by failing to fully advise him of the nature of
7
the charges and his potential defenses, and, whether the alleged deficient
performance prejudiced Brown’s defense. See id. at 687, 104 S.Ct. at 2064.
The state court reasonably found, and the record demonstrates, that Brown’s
counsel’s performance was not so deficient as to render his plea involuntary. The
judge advised Brown during the plea colloquy of the nature of the charges and the
maximum sentence he could face if convicted for the offense of solicitation to
commit first-degree murder. The judge also advised Brown that he was charged
with the offense of solicitation to commit first degree murder, stated the factual
basis for the charged offense, and warned that the offense carried a maximum
sentence of 30 years in state prison. Brown’s counsel explained that he had
prepared a diagram for Brown’s benefit to ensure that he understood the rights he
was waiving, which included the rights to any defenses. Brown believed that he
had enough time to talk to his counsel, and he was satisfied with counsel’s
services. Thereafter, Brown responded that he wanted to enter a plea of no contest,
and he indicated that he understood the charge and the possible sentence.
In addition, except for Brown’s three proposed “defenses,” no other
traditional defenses to guilt, such as an alibi, mistaken identification, or coercion,
have been raised. Brown’s assertion that he lacked the specific intent to commit
the offense of conviction because he said “kill[] or made into a vegetable” does not
8
constitute a defense because, with murder being solicited in the disjunctive, the
statutory element was still satisfied. (emphasis added). Neither does his assertion
that defense counsel failed to advised him that he committed a lesser included
offense, since that is essentially an admission as to another crime. Furthermore,
the state had significant evidence of Brown’s guilt when he entered a plea of
guilty, and, therefore, his claim that he did not solicit another to commit first
degree murder is clearly refuted by the evidence.
Moreover, the record satisfies the requirement that defense counsel needed
only to provide Brown with an understanding of the law in relation to the facts, so
that he could make an informed and conscious choice between accepting the
prosecution’s offer and going to trial. See Wofford, 748 F.2d at 1508. Thus,
whether Brown’s counsel failed to advise Brown of the proposed defenses does not
demonstrate that defense counsel’s performance was deficient. Neither does
Brown show that but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial. See Hill, 474 U.S. at 58-59, 106 S.Ct. at 370.
With respect to Brown’s contention that the district court erred by not
granting him an evidentiary hearing, because he failed to show that his claim relies
on a new rule of constitutional law or a factual predicate that could not have been
previously discovered through the exercise of due diligence, and the facts
9
underlying his claim would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would have
found him guilty of the underlying offense, he cannot fit within the exceptions to
§ 2254(e)(2). See Chandler, 471 F.3d at 1362-1363. In addition, Brown has not
specified what evidence, if any, he might have, or that he exercised any due
diligence in developing a factual basis for his claim.
In sum, it is not evident that the state court’s adjudication of this claim was
contrary to, or an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or that the state court’s decision was based on
an unreasonable determination of the facts. See 28 U.S.C. § 2254. Accordingly,
we affirm.
AFFIRMED.
10