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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

SAMUEL ROBERTS CASE NO.: 

Florida DOC Number 075687,

Petitioner,

v.

MARK INCH, Secretary,

Florida Department of Corrections,

Respondent.

___________________________________/

PETITION FOR WRIT OF HABEAS CORPUS BY 

A PERSON IN STATE CUSTODY §2254

and

 REQUEST FOR AN EVIDENTIARY HEARING

COMES NOW the Petitioner, SAMUEL ROBERTS, Florida DOC Number 

075687, currently an inmate serving fifteen (15) years in Florida State Prison, and 

hereby files this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. §2254, 

as the Petitioner, SAMUEL ROBERTS, is currently being illegally and unlawfully 

held and confined by the State of Florida, specifically, by the Respondent, MARK 

INCH, in violation of United States Constitutional protections and provisions as set 

forth fully in this Petition. More specifically, the Petitioner ROBERTS, states as 

follows:

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MODEL FORM FOR HABEAS CORPUS UNDER 28 U.S.C. §2254

In compliance with and consistent with the model form for use in Applications 

for habeas corpus under 28 U.S.C. §2254 found in the Appendix of Forms of the 

Federal Rules of Criminal Procedure, the Petitioner would state as follows:

1. a) The judgment and conviction under review occurred in the Circuit 

Court of the Seventeenth Judicial Circuit, in and for Broward County, 

Florida.

 b) The challenged judgment and conviction stems from case number

13-8401CF10A.

2. On September 18, 2014, the Petitioner was convicted of one count of 

sale or delivery of cocaine within one thousand feet of a school, a firstdegree felony and was tried before former Judge M. Destry in the 17th 

Circuit in Broward County, Florida. 

3. On October 24 2014, the Petitioner was sentenced to fifteen (15) years 

in Florida State Prison.

4,7. The Petitioner did not testify at trial. 

 8,9. The Petitioner appealed to the Fourth District Court of Appeals in case 

no. 4D14-4536, which resulted in a per curiam decision without an 

opinion affirming the judgment and sentence in Roberts v. State, 212 

So.3d 373 (Table) (Fla. 4th DCA 2016).

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10, 11. On September 26, 2017, a Motion for Post-Conviction Relief under Fla. 

R. Crim. P. 3850 wasfiled in case number 13-8401CF10A before Judge 

Martin S. Fein, Circuit Court Judge of the Seventeenth Judicial Circuit, 

Broward County, Florida. It was denied without a hearing on June 5, 

2019. 

11(a). The petitioner raised four grounds in his motion: 1) the Petitioner’s 

failure to file a motion to mitigate his sentence was not knowingly, 

intelligently and voluntarily made; 2) the Petitioner was deprived of 

his right to Due Process because the judge sua sponte made the 

petitioner go to trial without prior notice; 3) the petitioner argued that 

defense counsel was ineffective for failing to move for a mistrial after 

the prosecutor violated the pre-trial motion in limine; and 4) Defense 

counsel was ineffective for failing to object to the prosecutor’s 

bolstering of the confidential informant. 

11(a) (1-6) On June 5, 2019, the motion was denied without an evidentiary hearing.

11(a) (7) On August 14, 2019, the Petitioner filed a timely Notice of Appeal to 

the State Appellate Court, the Fourth District Court of Appeal, 

challenging the summary denial of his Motion for Post-Conviction 

Relief. On February 20, 2020, the Fourth District Court of Appeal 

entered a per curiam decision without an opinion. Roberts v. State, 2020 

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WL 836684 (Fla. 4th DCA 2020). A motion for rehearing was timely 

filed, but it was denied on April 20, 2020. The mandate was issued on

May 8, 2020.

11.(c,d) There was no appeal filed with the Florida Supreme Court because the 

appellate court rendered an order without an opinion, which is not 

appealable to the Florida Supreme Court. The Petitioner did not seek 

further review by the United States Supreme Court.

12. Each ground alleged in this Petition for Writ of Habeas Corpus was

raised at the State Court level after having exhausted all State remedies 

and constitutes the grounds that the Petitioner claims that he is being 

held in violation of the United States Constitution.

STANDARD OF REVIEW UNDER 28 U.S.C. §2254

As amended by the AEDPA, 28 U.S.C. § 2254(d) forbids federal courts from 

granting habeas relief on claims that were previously adjudicated in state court, 

unless the adjudication was (1) “contrary to, or involved an unreasonable 

Application of, clearly established federal law, as determined by the United States 

Supreme Court,” or (2) “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); 

Williams v. Taylor, 529 U.S. 362 (2000). A state court decision involves an 

unreasonable application of federal law “if the state court identifies the correct 

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governing legal principle from [the Supreme] Court’s decisions but unreasonably 

applies that principle to the facts of the prisoner’s case.”

In the case sub judice, the State courts decision involved an unreasonable 

application of clearly established federal law, as determined by the United States 

Supreme Court.” It also was “based on an unreasonable determination of the facts in 

light of the evidence presented in the State Court proceeding.” Because the Fourth 

District Court of Appeal summarily affirmed the denial of Mr. Robert’s claims, this 

court must “look through” that summary affirmance to the state post-conviction 

court’s decision— “the last related state-court decision that [did] provide a relevant 

rationale.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). 

TIMELINESS OF PETITION

This petition is timely filed within one year from the date that the conviction 

became final. The petitioner was convicted and then sentenced on October 24, 2014. 

On November 21, 2014, a timely direct appeal was filed to the Fourth District Court 

of Appeal for the State of Florida in Case No., 4D14-4536. This tolled the time until 

the appellate court rendered its per curiam decision on June 30, 2016. No motion 

for rehearing was filed. The mandate was issued on July 29, 2016.

The first day for 2254 purposes began to run on September 28, 2016, which 

is ninety-days after the time period expired to file review in the U.S. Supreme Court,

calculated by using the June 30, 2016 (the day after the issuance of the order)

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affirmance date as the starting point. Thus, in order to be considered timely for 

federal purposes, a motion for post-conviction relief under Fla.R.Crim.P. 3.850 was 

required to have been filed by September 28, 2017, the anniversary date.

Counsel preserved the Petitioner’s right to file a 2254 petition by filing his 

motion on September 26, 2017, two days before the expiration of the deadline. The 

trial court summarily denied the motion on June 5, 2019, and a motion for rehearing 

was timely filed on June 18, 2019. The motion for rehearing was denied on July 17, 

2019. On August 14, 2019, the petitioner filed his timely notice of appeal 

challenging the summary denial of his motion for post-conviction relief. This 

continued to toll the time to file a 2254 petition until the mandate was issued.

The appellate court rendered a per curiam decision on February 20, 2020. A 

timely motion for rehearing was filed on March 6, 2020, delaying the issuance of the 

mandate. The motion for rehearing was denied on April 20, 2020 and the mandate 

was issued on May 8, 2020. Thus, the time for 2254 purposes begins to run the day 

after the mandate issued, which was would be May 9, 2020. This petition was filed

on the same date that the mandate was issued and thus, the petitioner filed his petition 

with at least two days remaining. This petition is therefore timely. 

STATEMENT OF THE CASE AND FACTS

The Petitioner, SAMUEL ROBERTS, is incarcerated in State custody

currently serving a sentence of fifteen (15) years in Florida State Prison. He was 

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convicted by jury and filed a motion for downward departure based upon his various 

medical conditions. The Petitioner was sentenced to 15 years in prison and his 

motion for downward departure was denied. The appellate court affirmed the trial 

court’s decisions. The petitioner then filed a State Motion for Post-Conviction 

Relief, which was denied without a hearing.

The petitioner appealed the denial of his motion for post-conviction relief to 

the appellate court, but it was denied without an opinion, thereby precluding further 

State appellate review. A timely motion for rehearing was filed, it was denied and

a Mandate was issued. This timely Petition ensues. References to the record will be 

to the state court post-conviction record (4D19-2730) and will cite to the page 

numbers on the bottom right of the record, which is consistent with the PDF 

numbering. An appendix has not been filed with this petition.

Court Proceedings: The petitioner was arrested and charged with delivery of 

cocaine within 1000 feet of a school. He was convicted by jury and filed a motion 

for downward departure based upon his various medical conditions. The judge

sentenced the petitioner to 15 years in prison, denying the petitioner’s motion for 

downward departure. As explained in claim one, the petitioner was denied due 

process because his attorney was forced to proceed to trial that same day, without 

adequate notice, and without his discovery from the previous lawyer. The trial 

explained below.

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 The facts presented at trial were simple. The petitioner purportedly sold a 

“dime” of crack cocaine to a confidential informant within 1000 feet of a school. 

This is a first-degree felony, which the state tried to enhance by seeking to 

habitualize the petitioner. The informant did not testify at trial, but instead, a video 

recording of the alleged transaction was played for the jury. Detective Santiago, the 

handler of the confidential informant, also testified at trial. Santiago testified that 

the informant was fit with a camera and audio listening device. Santiago gave the 

informant money, checked her to see if she had any drugs on her and then sent her 

to conduct the drug transaction with someone named Charlie.

This person named Charlie was not found so the informant purportedly 

purchased a dime of crack cocaine from the petitioner who, according to the state, 

was essentially captured on the recording. The admission of the recording was hotly

contested by defense counsel. The trial court eventually ruled that the tape was 

admissible, but that some portions of the recording were required to be redacted. 

Specifically, the trial court expressly held that the informant’s statement to 

her handler (who she knew was monitoring the transaction via a listening device) 

that she bought the drugs from “Sam” – the petitioner - must be redacted. The 

prosecutor acknowledged the court’s order and indicated that he would comply. The 

court was adamant that the video had to be redacted: 

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COURT: Well, quite frankly, I’m not sure that any of 

what she says prior to her having a 

conversation - - in fact, I am quite sure of this. 

Nothing that she says from the time that tape 

shows her leaving the vehicle until she 

actually has contact with Mr. Roberts would 

be admissible. 

It is all hearsay, if that is the basis of your 

objection on that.

Now, the videotape, itself, the image, if you 

will, would be admissible, but the audio 

portion would not, up and until such time as 

she has contact with Mr. Roberts and begins 

a conversation with him. 

At that point the audio becomes admissible, 

and I would allow the audio, if you will, up 

and to the point where she makes an 

identification of Mr. Roberts, she calls him 

Sam.

That is his first name, Samuel. 

She said she was able to - - I forget her exact 

words, but, buy from Sam. 

And the statement of identification made 

immediately after perceiving someone is an 

exception to hearsay. 

But at that point the audio would have to 

terminate again, in other words, all of her 

commentary as she is walking back towards 

the undercover vehicle would be 

inadmissible as hearsay. 

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MR. STRAUSS: So what - - if I understand the Court’s ruling, 

I will turn the volume off, or I suppose now 

that it is the lunch break - -

*****

MR. STRAUSS: Thank you. So what I will do then is up until 

the point that she makes contact with him, I 

will turn the volume or the audio off. 

 COURT: Okay. 

MR. STRAUSS: If that is okay with both the court and - -

COURT: Well, you understand my ruling, it is not 

admissible. 

How you accomplish that is up to you. 

Okay. 

But the audio portion, up until the time she 

has contact with Mr. Roberts, and after her 

statement of identification, if you will, as she 

is walking back, is inadmissible. 

That is my ruling. 

How you accomplish that, is up to you. 

If you choose to admit the tape at this point, I 

will admit it over defense objection with that 

provision.

So, if it is being admitted, depending on how 

you intend to accomplish this, if you are 

telling me you are just simply going to turn 

the volume down, then if this case goes to the 

jury and they desire to see that tape again, 

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then they will have to be played in open court 

with the same, in the same manner, in other 

words, with the turning the volume down. 

Or you can edit it, at this point, and submit an 

edited version. 

MR. STRAUSS: Since it is a break, I will do that. I will try to 

do that. 

 COURT: However, you want to do it. 

But you understand my rulings with regard to 

the audio? 

MR. STRAUSS: Yes, After the ID, anything after the ID, it is 

Sam, it is out. 

COURT: Yes. 

MR. STRAUSS: The audio is out. 

COURT: Correct. 

MR. STRAUSS: But the video stays in? 

COURT: And everything up and until the point where 

she makes contact with Mr. Roberts. 

MR. STRAUSS: Okay. 

COURT: And it is actually part of the conversation. 

MR. STRAUSS: Okay. I’m satisfied with the court’s ruling on 

that matter. Thank you, Judge. 

R:889-94. Unfortunately, when the recording was played for the jury in the State’s 

case in chief, the prosecutor did not stop the recording prior to the objectionable 

statements. 

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This allowed the jury to hear the informant tell the detective that she bought 

the cocaine from Sam, the petitioner. The trial court acknowledged that this error 

took place and simply gave a futile curative instruction informing the jury to “please 

ignore that portion of the audio on the tape where the person is heard saying, I got a 

dime from Sam. Does everyone understand?” This failed to unring the bell of the 

damaging inadmissible evidence.

Defense counsel did not move for a mistrial, nor did he discuss this option 

with the petitioner. The petitioner was unaware that he could ask for a mistrial. Had 

the petitioner been informed or made aware of his right to ask for a mistrial, then he 

would have moved for a mistrial. Defense counsel’s failure to inform the petitioner

was deficient conduct because it deprived the petitioner of a new trial. There was a 

reasonable probability that the trial court would have granted the motion.

A motion for mistrial would have been granted, as illustrated by the 

painstaking effort that the court made to ensure that the state did not present this 

testimony to the jury. (R:428-53). The court admonished the prosecutor prior to its 

admission to redact that portion of the recording because it went to the sole question 

presented to the jury – whether the petitioner sold the informant a dime of crack 

cocaine. Without a doubt, any curative instruction was futile. The jury could not 

simply “unring that bell”.

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Additionally, counsel’s failure to move for a mistrial deprived the petitioner

of having this issue presented to the appellate court. Had a proper motion for mistrial 

been made and denied, then the issue would have been preserved. Had it been 

preserved and presented on appeal, there was a reasonable probability that it would 

have resulted in reversible error. Florida caselaw from the Florida Supreme Court 

acknowledges that this can form the basis of an ineffective counsel claim.

During the course of the trial, the prosecutor elicited testimony from Detective 

Santiago that led to the inescapable inference that the informant was trustworthy and 

that she bought the crack cocaine from the petitioner. In addition to this testimony, 

the prosecutor also argued to the jury that the informant was reliable and therefore 

the petitioner was guilty. Counsel did not object to these comments made to the 

jury, despite the obvious bolstering that took place.

At sentencing, defense counsel presented medical documentation and 

testimony regarding the various medical conditions of the petitioner. The state 

sought to habitualize the petitioner, but the court did not find that he was a habitual 

offender. The court nevertheless sentenced the petitioner to 15 years in prison. A 

direct appeal was filed and the mandate was issued on July 29, 2016. This timely 

motion therefore ensues.

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AN EVIDENTIARY HEARING IS REQUIRED

In a habeas corpus proceeding, the burden is on the petitioner to establish the 

need for a federal evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 

F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary 

hearing, a federal court must consider whether such a hearing could enable an 

applicant to prove the petition's factual allegations, which, if true, would entitle the 

applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) 

(citation omitted); Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th 

Cir. 2016). 

“It follows that if the record refutes the applicant's factual allegations or 

otherwise precludes habeas relief, a district court is not required to hold an 

evidentiary hearing.” Schriro, 550 U.S. at 474. The pertinent facts of this case are 

not fully developed in the record – through no fault of the petitioner – as he requested 

an evidentiary hearing in the state court. Further, an evidentiary is required because 

if his allegation and assertions are true, then he would be entitled to Federal Habeas 

Relief. The record also does not refute or undermine the allegations made by the 

petitioner. As such, an evidentiary hearing is required. Buh v. Sec’y, Fla. Dep’t. of 

Corr., 2020 WL 1873298 * 9 (11th Cir. 2020) (explaining why evidentiary hearing 

was required).

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GROUND ONE

THE PETITIONER WAS DEPRIVED OF HIS FUNDAMENTAL 

RIGHT TO DUE PROCESS UNDER THE FIFTH AMENDMENT TO 

THE U.S. CONSTITUTION AND RIGHT TO A FAIR TRIAL UNDER 

THE SIXTH AMENDMENT BECAUSE THE TRIAL COURT 

FORCED THE PETITIONER TO PROCEED TO TRIAL WITHOUT 

ADEQUATE NOTICE.

The petitioner filed this claim in the State Court on the basis that the court’s 

sua sponte decision to begin a jury trial – without notice - violated the Petitioner’s 

right to due process and right to a fair trial under the Fifth and Sixth Amendments to 

the U.S. Constitution. R:17-20. The State court denied this claim without an 

evidentiary hearing. Relief is required because the State court’s decision involved 

an unreasonable application of clearly established Federal law regarding Due 

Process and the Right to a fair trial by the United States Supreme Court. 

Likewise, relief is required because the State Court’s decision is based on an 

unreasonable determination of the facts in light of the evidence presented in the State 

Court proceeding. Buhs v. Sec’y Dep’t of Corr, 2020 WL 1873298 (11th. Cir. April 

15, 2020). There has been no adjudication on the merits and thus, no deference is 

afforded. When this occurs, this court does not defer to the lower court’s findings.

The record is clear that defense counsel appeared at a status hearing in the

morning and was shockingly told by the judge that trial would begin hours later. In 

Broward county, it is irrefutable that a status hearing is not a precursor to trial that 

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same day – a fact that was not disputed in the State Court. The failure to provide any 

notice – let alone proper notice - denied the Petitioner of his fundamental right to 

procedural due process, as well as his right to a fair trial, as guaranteed under the 

Due Process Clause of the U.S. Constitution, under the Fifth, Fourteenth and Sixth 

Amendments to the U.S. Constitution, as well in violation of Mathews v. Eldridge, 

424 U.S. 319, 348 (1976); Fuentes v. Shevin, 407 U.S. 67, 79 (2009); U.S. v. Kaley, 

579 F.3d 1246, 1262 (11th Cir. 2009).

The Trial Court’s Sua Sponte Decision at the Status Hearing Forcing the 

Petitioner to Begin Trial the Same Day.

The Petitioner was initially represented by court appointed attorney Mr.

Conway. After five calendar call hearings, the matter was set for trial on August 25, 

2014. R: ix. New counsel Mr. Lopez filed a notice of appearance before the trial 

took place, but he was not available to take over the case. Mr. Conway remained as 

the petitioner’s lawyer and the trial began. The trial was interrupted during jury 

selection because the petitioner had a heart issue which caused him to be taken by 

ambulance to the hospital where he remained for two days. R: 561, 566. Thus, the 

first trial ended without a jury being sworn and the matter was set for a status hearing 

(not a calendar call) on September 15, 2014. R:559, 560–74.

New counsel, Mr. Lopez, appeared at the status hearing as the defendant’s 

new attorney. The case was placed back on the docket as a status hearing. Mr. Lopez 

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appeared for this status hearing and was forced by the court to proceed to trial. There 

was absolutely no notice given to defense counsel that a trial was being set that day 

or that it was imminent. The case was not set for calendar call, nor did the notice 

reflect anything different. In fact, defense counsel was not even provided with 

discovery in the case – a case where the state was seeking to habitualize the 

Petitioner for a first-degree felony charge, punishable by 30 years in prison. 

Mr. Lopez advised the court that he was never informed that a trial was going 

to start that day and that he received inadequate notice of trial. Lopez expressly 

informed the court that “I am not prepared to go to trial today”. Mr. Lopez explained 

that the Petitioner spent two days in the hospital after he went into “cardiac arrest”. 

He also explained that prior defense counsel did not provide him with discovery, 

which thereby prejudiced the petitioner in counsel’s performance and representation. 

Defense counsel was not ready, did not have discovery, and did not have 

adequate time to prepare for trial, thereby violating his Fifth Amendment right to 

due process. Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 14 & n. 15, 

98 S.Ct. 1554, 1563 & n. 15, 56 L.Ed.2d 30 (1978) (“The purpose of notice under 

the Due Process Clause is to apprise the affected individual of, and permit adequate 

preparation for, an impending hearing.” Lack of notice is likewise a structural error. 

Despite defense counsel’s multiple protests that he was not given any notice, 

the court set the trial only 4 hours later. Instead of scheduling the matter for another 

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day, the Judge sua sponte forced new counsel to start trial that day without any notice 

and before new counsel had received all of the discovery:

 COURT: Do I have a case I am going to try this afternoon? 

Are we picking a jury on something? 

PROSECUTOR: Judge, we have to resume Sam Roberts. 

We began picking it. 

We just never really finished it. 

We were in voir dire and he had, I think, a cardiac 

arrest or something. 

 COURT: That is right. 

PROSECUTOR: I don’t know who is trying it, if it is Sean or Lopez. 

DEFENSE COUNSEL: We are here for a status. 

*****

 COURT: Are we set for a status today? 

DEFENSE COUNSEL: We sure are. 

PROSECUTOR: It is set - -

COURT: Are you trying it Sam? Are you taking over the 

case? 

DEFENSE COUNSEL: I am not trying it today, though. 

 COURT: Well, you would be, I think. 

DEFENSE COUNSEL: I don’t think so. I think we are scheduled for a 

status. 

 COURT: Are we set for a status today? 

DEFENSE COUNSEL: We sure are. 

PROSECUTOR: It is set - -

DEFENSE COUNSEL: Mr. - -

PROSECUTOR: I’m sorry, I don’t mean to interrupt you. 

COURT: But I have a jury panel. I have a jury panel 

available, and, look, it is not the state’s fault that 

there was this issue with regard to your client. 

DEFENSE COUNSEL: No, no. My client is very ill, Judge. He is 

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terminally - -

 COURT: I understand. But that is not the State’s fault. 

DEFENSE COUNSEL: I understand. 

 COURT: Is he enough to proceed? 

DEFENSE COUNSEL: No. He is under a doctor’s care. 

He has an appointment on Friday.

 COURT: Where is he today? 

DEFENSE COUNSEL: He is present. 

 PETITIONER: Right here. 

 COURT: Where? Come forward, please. 

DEFENSE COUNSEL: I Apologize, Judge, and I don’t mean to interrupt 

what is going on.

 COURT: No, that is okay. I am just trying to sort out. Can you 

give me two minutes, guys? Let me figure if I am 

going to trial. If I’m not going to trial, maybe we 

can do this this afternoon. 

***** 

 COURT: Okay. 

What does that mean he is under a doctor’s care? 

First off, where is Mr. Conway? 

DEFENSE COUNSEL: Mr. Conway is on his way. I spoke to him this 

morning. I crossed paths with him in the hallway. 

He is supposed to be turning over the remaining 

discovery. 

 *****

DEFENSE COUNSEL: Judge, with all due respect, and my client does have 

a privilege of asserting his right to remain silent. We 

are here for a status conference.

 COURT: We are picking a jury at 1:30. 

DEFENSE COUNSEL: We are here for a status conference. 

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 COURT: No, we are picking a jury at 1:30. 

DEFENSE COUNSEL: Judge, I don’t have the discovery. Mr. Conway held 

onto it. 

 COURT: I explained this to you before, Mr. Lopez. 

DEFENSE COUNSEL: No. 

 COURT: The realty is this, okay. You took over this case at 

the last minute. You did that at Mr. Robert’s 

request. He had a perfectly goo lawyer with Mr. 

Conway’s who was ready to proceed. That is fine. 

It is his choice. That is fine. But it puts you in this 

position and that is not an issue for me. 

 PETITIONER: I just want to know - -

DEFENSE COUNSEL: Judge, I am not prepared to go to trial today. 

 PETITIONER: I do not want Mr. Conway representing me. 

DEFENSE COUNSEL: I am not prepared to go to trial. 

 COURT: I am not going to debate this with you. 

DEFENSE COUNSEL: How could you schedule a status conference and cut 

him. 

 COURT: Look I set - - 

DEFENSE COUNSEL: First of all, he was hospitalized. I agree with you. I 

was ready to give his funds bac, et cetera. He went 

into cardiac arrest. He was taken by ambulance to 

the hospital. He was hospitalized for two days after 

the scenario that took place in the picking of the 

jury. I don’t know what happened but I know he is 

under a doctor’s care. I thought we would have a 

status conference and, apparently, Mr. Conway 

didn’t turn over the discovery to me because 

apparently there is some glitz because he couldn’t 

read the stipulation execution document. So he 

didn’t’ give me back the discovery because he 

didn’t know what his obligation was. So were are 

here today on a status conference to see how Mr. 

Roberts is doing. I didn’t know we were scheduled 

for trial. 

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 COURT: I am picking a jury this afternoon. 

DEFENSE COUNSEL: I had no idea and I didn’t prepare and I don’t have 

the documents from Mr. Conway. 

 COURT: I need you here at 1:30 with you client to pick a jury. 

Okay. Now, all we are going to do today -- . 

DEFENSE COUNSEL: I am not sure, Your Honor. 

 COURT: All we are going to do today is pick a jury. 

DEFENSE COUNSEL: Okay, but I don’t have the discovery. I never did. 

All I had was the copy of the videotape. 

 COURT: Do you have discovery? 

 PROSECUTOR: Yes. I will provide him with a copy. 

 COURT: Give it to him right now. Right now. 

*****

 COURT: You are going to get discovery right now from the 

State. 

DEFENSE COUNSEL: But how fair is that? We are talking about A, I am 

not noticed. 

 COURT: I think that it is fair and just and I will put it on the 

record why. Okay. Once again, Mr. Roberts did 

this to you, and to himself. He decided at the last 

minute to let a perfectly competent lawyer - -

 PETITIONER: No, he is not competent. No, he is not. 

 COURT: Mr. Roberts, I’m not prepared to debate this with 

you. 

 PETITIONER: He is not competent. 

 COURT: In my judgment Mr. Conway was rendering 

effective assistance of counsel and doing what he 

thought was acceptable and best. Okay. That is this 

court’s opinion. 

*****

DEFENSE COUNSEL: We don’t. But my only problem is I don’t have 

discovery. You are giving me discovery today 

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forcing me into trial this afternoon. 

 COURT: 1:30 we are picking a jury. 

DEFENSE COUNSEL: I don’t know what kind of more reversible error can 

you make? 

 COURT: I guess you will be making your argument to the 

Fourth. 

DEFENSE COUNSEL: I guess I will. But the problem is is that - -

 COURT: 1:30 trial. We are picking a jury. 

DEFENSE COUNSEL: Yes. See you at 1:30, Judge. 

R: 560–73. Counsel picked the jury hours later that afternoon. 

Not surprisingly, the Petitioner was convicted as charged. In order to prevail 

on this claim, it was not necessary to show that a different outcome would have 

occurred had the Petitioner had proper and adequate notice. Nor is it significant that 

the picking of the jury began on different days. Indeed, many scholars and lawyers 

alike believe that cases are won and lost at the jury selection phase – a critical phase 

where a lawyer must be prepared and familiar with the case (counsel did not have 

discovery yet).

 Requiring defense counsel to pick a jury with four hours’ notice in a case 

where the Petitioner was facing a first-degree felony with the possibility of being 

habitualized deprived the Petitioner of his constitutional right to procedural due 

process under the Fifth Amendment to the U.S. Constitution. See generally Mullane 

v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 

L.Ed. 865 (1950); Brouard v. McClean, 753 So.2d 601 (Fla. 4th DCA 2000) 

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(requiring a new hearing after finding overnight notice to suspend child visitation of 

husband violated right to procedural due process); Crepage v. City of Lauderhill, 

774 So.2d 61 (Fla. 4th DCA 2000) (finding that 24-hour notice of adversarial hearing 

in forfeiture case was unreasonable and constituted a violation of procedural due 

process). The error is a structural error which does not require an actual showing of 

prejudice.

Indeed, other cases have also held that even a 24-hour notice is unreasonable 

and constitutes a violation of procedural due process. Legal Experts, PL v. Tryzbiak, 

970 So.2d 893 (Fla. 5th DCA 2007) (notice of hearing served with a 24-hour notice 

was unreasonable and failed to afford procedural due process). Here, defense 

counsel did not have discovery, nor was he given any notice at all that the status 

hearing was a 4-hour prelude to the beginning of jury selection. Defense counsel 

expressly advised the court that “I am not prepared to go to trial.” This is not simply 

an instance where a Petitioner was denied a continuance at the time of trial. This is 

the total lack of notice for a Petitioner facing a tremendous sentence. This also 

deprived the petitioner of his Sixth Amendment right to a fair trial with prepared 

counsel.

The failure to consider the claim likewise constituted a due process 

violation: The post-conviction court denied this claim on the basis that it should 

have been raised on direct appeal. The appellate court affirmed without giving a 

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written opinion, thereby making it impossible to determine whether the state 

appellate court agreed with the trial court or simply denied the claim on the merits. 

However, Fla. R. Crim. P. 3.850(a)(1) requires the post-conviction court to consider 

constitutional claims to be raised in a motion for post-conviction relief even if it 

could have been raised on direct appeal. The court wrongfully denied this claim on 

this basis.

The State court failed to follow its own rule - 3.850(a)(1) - and thus, this 

likewise violated the Petitioner’s right to due process under the Fifth Amendment to 

the US and Florida Constitutions. The petitioner attempted to challenge the denial 

of a Federal constitutional violation and thus, the state’s misapplication of the rule 

infringed on the petitioner’s Federal Due Process rights. The petitioner also cited to 

an analogous case, Johnson v. State, 128 So. 3d 155 (Fla. 2d DCA 2013), which 

demonstrates that the claim—a constitutional claim—was proper to raise under 

3.850(a)(1), and that the claim did not need to be raised on direct appeal, even if it 

could have been raised. 

In Johnson, the post-conviction court denied Johnson’s claim on the basis that 

it was procedurally barred because he could have raised the claim on direct appeal. 

Id. The Second District reversed and held that under Fla. R. Crim. 3.850(a)(1), the 

petitioner could raise this issue because it involved a constitutional substantive due 

process claim. Id. at 156–57. Importantly, the court determined that the claim was 

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not procedurally barred even though the petitioner actually could have raised the 

claim on direct appeal. Id. at 157 (“[W]hile Johnson could have raised his Giglio

claim on direct appeal, he did not”). 

Other cases likewise recognize that a constitutional claim can be raised for the 

first time in a state 3.850 motion, such as a double jeopardy violation. Kerrin v. State, 

8 So.3d 395 (Fla. 1st DCA 2009) (double jeopardy claim was cognizable in motion 

to vacate, set aside, or correct sentence); see also Boles v. Secretary, Dept. of 

Corrections, 2014 WL 4211310, n. 9 (M.D. Fla. 2014). This is true even though it 

can also be raised for the first time in a direct appeal. Honaker v. State, 199 So. 3d 

1068, 1070 (Fla. 5th DCA 2016) (double jeopardy violation can be raised for the 

first time on appeal because it amounts to fundamental error).

As such, the Petitioner’s constitutional right to procedural and substantive due 

process were violated because he was not given notice that he was proceeding to 

trial four hours later after appearing for a hearing that was irrefutably scheduled in 

order to get a simple status. He was also denied his right to a fair trial and effective 

and prepared counsel – both under the Sixth Amendment. The post-conviction 

court’s failure to consider this claim on the merits, contrary to Rule 3.850(a)(1), 

deprived the Petitioner of his right to procedural and substantive due process under 

the Fifth and Fourteenth Amendments to the U.S. Constitution. 

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GROUND TWO

DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO 

MOVE FOR A MISTRIAL WHEN THE PROSECUTOR 

VIOLATED THE COURT’S ORDER TO MUTE THE 

INADMISSIBLE STATEMENTS ON THE VIDEOTAPE WHEN 

PUBLISHING IT TO THE JURY.

The petitioner filed this claim in the State Court on the basis that counsel was 

ineffective under Strickland and the Sixth Amendment for failing to request a 

mistrial after the state violated a pre-trial order. R:21-27. The order excluded the 

non-testifying informant’s statement to the detective who was listening live to an 

audio feed that she bought the drugs from the petitioner. The State court denied this 

claim without an evidentiary hearing. Relief is required because the State court’s 

decision involved an unreasonable application of Strickland and its progeny, clearly 

established federal law by the United States Supreme Court. 

Likewise, relief is required because the State Court’s decision is based on an 

unreasonable determination of the facts in light of the evidence presented in the State 

Court proceeding. Buhs v. Sec’y Dep’t of Corr, 2020 WL 1873298 (11th. Cir. April 

15, 2020). There has been no adjudication on the merits and thus, no deference is 

afforded. When this occurs, this court does not defer to the lower court’s findings. 

Defense counsel knew that the taped drug transaction was the most important 

and most incriminating piece of evidence at trial. Defense counsel was aware that 

the recording contained objectionable statements and hearsay that were intentionally 

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made by the confidential informant in a conversation to the monitoring detective.

The trial court expressly ordered the state not to play those portions, as illustrated by 

the court’s lengthy and adamant discussion about it. The court instructed the state 

on two separate occasions to make sure that this was excluded. The state indicated 

that it would comply.

Despite the court’s express admonishment, the State played the objectionable 

portion to the jury. This was especially prejudicial because this portion allowed the 

jury to hear testimony from the CI to the Detective that she received the drugs from 

Sam: 

I was misinformed like a bitch, but I got Sam. 

Charlie wasn’t there. But I got a dime from 

Sam.

(R:262). The prosecutor failed to redact this critical portion of the testimony that was 

ordered to be removed, in clear violation of the court order. 

Instead of asking for a mistrial, counsel simply agreed to a typical curative 

instruction advising the jury to disregard that portion of the tape, informing the jury 

to “please ignore that portion of the audio on the tape where the person is heard 

saying, I got a dime from Sam. Does everyone understand?” R:263. This curative 

instruction failed to unring the bell of this prejudicial evidence. Melehan v. State, 

126 So. 3d 1118, 1125 (Fla. 4th DCA 2012) (recognizing that although a curative 

instruction will generally obviate the necessity of a mistrial, “there are times when a 

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curative instruction is not sufficient ‘to unring the bell,’ and a new trial is required”). 

This was one of those times. 

Defense counsel did not discuss the option of moving for a mistrial with the 

Petitioner, nor did defense counsel ask for a mistrial. This curative instruction could 

not cure the error and in fact, exacerbated it. It would be an exercise in futility to 

expect the jury to “ignore that portion of the audio on the tape where the person is 

heard saying, I got a dime from Sam.” The absurdity is akin to asking the jury to 

ignore a defendant’s statement that h/she was guilty of committing the crime 

charged. This rendered counsel ineffective under the Sixth and Fourteenth 

Amendments to the U.S. Constitution, as well as under Strickland.

Counsel was ineffective because, had he requested a mistrial, there was a 

reasonable probability that the motion for mistrial would have (and should have) 

been granted. Had the Petitioner been advised of the option to move for a mistrial, 

the Petitioner would have requested the court to grant the mistrial. Indeed, had 

defense counsel properly assessed the significance of the prejudicial evidence that 

should have been excluded, then he would have moved for a mistrial. The petitioner 

was prejudiced because there was a reasonable probability that it would have been 

granted.

Caselaw recognizes the prejudicial effect of when a motion in limine of this 

magnitude is violated, thereby demonstrating that the mistrial would have been 

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granted. In Nunez v. State, 109 So. 3d 890 (Fla. 3d DCA 2013), a pretrial motion in 

limine had been granted to exclude portions of a forensic interview of the minor 

victim. Id. at 892. Against the trial court’s order, the State introduced an unredacted 

version of the interview to the jury. Although defense counsel objected to its 

introduction and spoke loudly over the audio in an attempt to prevent the jury from 

being contaminated by the unredacted portions, the jury inevitably could not ignore 

the portions that they had heard. Id. at 892–93. 

After the objection had been sustained and the judge ordered the State to “skip 

over that section” of the interview, the jury then requested to view the entire 

interview without redactions, which the court allowed. Id. The court held that 

allowing the interview to be viewed in its entirety was harmful error and remanded 

for a new trial. Id. at 893. Allowing the jury to hear the redacted portion, as in 

Roberts’ case, prejudiced the defendant.

In Seymour v. State, 187 So. 3d 356 (Fla. 4th DCA 2016), Seymour was 

observed by officers on surveillance video running down a street clutching 

something underneath his shirt; another witness stated that, although unsure, he 

believed the object “looked like a pistol.” Id. at 358. Both parties agreed that the 

witnesses would not testify that the object concealed in the defendant’s shirt was a 

firearm. Id. 

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Despite the agreed upon motion in limine, the State presented the surveillance 

tape to the jury and an officer testified that the defendant was, in fact concealing a 

firearm under his shirt. Id. Defense counsel’s objection to the officer’s statement 

was overruled, and the defendant was convicted and sentenced to twenty years in 

prison. Id. 

The Fourth District found that the object concealed in the defendant’s shirt 

was impossible for anyone to definitively identify, and the officer was not qualified 

to interpret the object in the video. Id. at 359. The court held that allowing the 

statement to be introduced to the jury over objection was an egregious error because 

the State and the defendant had agreed, prior to trial, that “there would not be ‘any 

interpretation [at trial] from the police officers of what they believed the video 

shows.’” Id. The conviction was reversed and the issue remanded for a new trial 

because the error was not harmless. Id. 

Here, had defense counsel originally sought a mistrial when the unredacted 

audio tape was published, rather than simply agree to a curative instruction, then the 

trial court would have granted the motion due to the grossly negligent conduct of the 

prosecutor.1 The trial judge was a no-nonsense type of judge who made it a point to 

1 The petitioner does not have to show that the trial court would have granted the 

motion for mistrial. Under Strickland, the defendant only has to show that there was 

a reasonable probability that the motion would have been granted.

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explain to the prosecutor that the court’s order cannot be violated. The state’s 

argument that the motion would have been denied is flawed because it looks at this 

issue in the scope of the entire trial, not at the point of the trial where the violation 

took place. 

Critically, this harmful testimony took place during the testimony of Det. 

Santiago, the first law enforcement presented to the jury. He was the second witness 

called at trial by the state; the first witness was merely the assistant principal of the 

elementary school who presented very brief testimony. Surely, there was a 

reasonable probability that the trial court would have granted the motion for mistrial 

after the state violated its order during the first law enforcement witness.

An evidentiary hearing is required is required in order to determine 1) 

whether the failure to move for a mistrial was a strategic decision and 2) whether the 

act or omission, if deemed strategic, was a reasonable decision. Goforth v. State, 15 

So.3d 786 (Fla. 5th DCA 2009) (evidentiary hearing required in order to determine 

why counsel failed to move for a mistrial); Plez v. State, 6 So.3d 1255 (Fla. 3d DCA 

2009) (reversing summary denial of the Petitioner’s claim based upon ineffective 

assistance of counsel for failing to object or move for a mistrial based upon improper 

testimony by detective).

The claim presented is a viable claim for relief and falls within the gambit of 

when an evidentiary hearing is required. See Sierra v. State, 230 So.3d 48 (Fla. 2d 

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DCA 2017) (counsel’s failure to move for a mistrial constituted ineffective 

assistance of counsel because, even though trial court determined that counsel’s 

decision was strategic, the strategic decision was patently unreasonable under the 

facts and circumstances of the case).

To be sure, counsel was ineffective for failing to ask for a mistrial, as well as 

failing to advise the Petitioner of the option of requesting the motion. Allowing the 

jury proceed after hearing this objectionable testimony is deficient conduct that 

prejudiced the Petitioner. The jury was allowed to hear evidence from the 

confidential informant that went to the crux of the entire case – that she bought drugs 

from the Petitioner. A mistrial would have been desirable, especially since defense 

counsel sought to continue the trial because he was not ready to proceed since he 

was recently retained to handle the case. Only an evidentiary hearing can resolve 

this issue. Goforth, 15 So. 3d at 790; Sierra, 230 So.3d 48.

Further, in this situation, the requirements of Strickland are met by simply 

showing that there is a reasonable probability that the court would have granted the 

motion had the Petitioner requested it. There is no requirement that the Petitioner 

demonstrate that he would be acquitted or fared better at a new trial. This argument 

is supported by Middleton v. State, 41 So.3d 357 (Fla. 1st DCA 2010), which held 

that the defendant satisfied the prejudice prong of the test for ineffective assistance 

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by showing that he would have requested, and been granted, a mistrial.2 See also 

Garrido v. State, 162 So.3d 1069 (Fla. 4th DCA 2015) (counsel ineffective for not 

accepting mistrial or continuance).

In Middleton, the defendant proceeded to trial with eleven jurors in a capital 

murder case. Defense counsel failed to advise the defendant that he could move for 

a mistrial, which the defendant testified at the 3.850 hearing that he would have 

requested the mistrial had he been informed. Id. at 359. Defense counsel also 

submitted an affidavit stating that he believed that the defendant would have moved 

for a mistrial. The trial court denied the motion, finding that the prejudice prong 

under Strickland required that the defendant show that the outcome of the trial would 

have been different. Id.

However, the Middleton court held that all that was required was a showing 

that the motion for mistrial would have been granted, not a better outcome at a later 

trial. Importantly, the prejudice prong of Strickland does not require a showing that 

the motion for mistrial in the Petitioner’s case be granted, but instead, only a 

reasonable probability. The Middleton court used language that indicated that the 

defendant met the prejudice prong because he demonstrated that the motion would 

2 Although Middleton was decided because the defendant would have been granted 

a mistrial, it did not deviate or change the Strickland standard and require that the 

Petitioner prove that the mistrial would have been granted. The Middleton court 

simply used this language because it was a fact, not because it was the standard.

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have been granted. This language was not meant to, nor could it, change the 

“reasonable probability” prong of Strickland, which never demands this higher 

standard. 

Here, the Petitioner would have requested the mistrial on both occasions had 

counsel properly advised him – as in Middleton – of the other error(s) that took place 

at trial, which are set forth in this motion. As such, because the Petitioner would 

have requested the mistrial and because there was a reasonable probability that the 

trial judge would have granted it, a new trial is required. Although not required to 

be shown, the judge’s actions of repeatedly admonishing the state to redact the 

objectionable portion of the tape supports the Petitioner’s assertion that there was a 

reasonable probability that the motion for mistrial would have been granted.

Counsel was also ineffective for failing to preserve the issue for appeal, which 

would have resulted in reversal.

Counsel’s failure to move for a mistrial was also deficient under Strickland

because counsel’s omission deprived the Petitioner of his ability to appeal if the trial 

court denied the motion. The Florida Supreme Court held that the failure to preserve 

an issue for appeal can constitute ineffective counsel under Strickland. See Monroe 

v. State, 191 So.3d 395, 403 (Fla.2016) (“the failure to properly preserve an 

otherwise clear error may constitute ineffective assistance of counsel cognizable on 

direct appeal”). Had the issue been preserved, there was a reasonable probability that 

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it would have been reversed on appeal. Counsel was ineffective and an evidentiary 

hearing is required. 

GROUND THREE

DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO 

OBJECT TO THE PROSECUTOR’S BOLSTERING OF THE 

CONFIDENTIAL INFORMANT. 

The Petitioner was deprived of effective assistance of counsel, as guaranteed 

under the Sixth and Fourteenth Amendments to the U.S. Constitution, as well as 

under Strickland, for failing to object to the improper bolstering of the Confidential 

Informant. Counsel failed to properly and timely object to the prosecutor’s clever 

bolstering of the informant who did not testify at trial. The credibility of the 

informant was critical because she was the person who purportedly engaged in the 

drug transaction with the Petitioner.

The petitioner filed this claim in the State Court on the basis that counsel was 

ineffective under Strickland and the Sixth Amendment for failing to request a 

mistrial after the state violated a pre-trial order. R:27-30. The State court denied this 

claim without an evidentiary hearing. Relief is required here because the State 

court’s decision involved an unreasonable application of Strickland and its progeny 

- clearly established federal law by the United States Supreme Court. 

Likewise, relief is required because the State Court’s decision is based on an 

unreasonable determination of the facts in light of the evidence presented in the State 

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Court proceeding. Buhs v. Sec’y Dep’t of Corr, 2020 WL 1873298 (11th. Cir. April 

15, 2020). There has been no adjudication on the merits and thus, no deference is 

afforded. When this occurs, this court does not defer to the lower court’s findings. 

Counsel was ineffective because he failed to timely object to the following 

testimony, along with the statements made by the prosecutor in closing argument, 

which clearly conveyed to the jury that the informant was truthful, reliable and 

informed the detective that she bought the crack cocaine from the Petitioner:

Q: Okay. There came a point in time after the transaction

 where you would take – where, obviously, you would

speak with the informant because you were not 

capable of actually seeing what took place on the 

video; correct?

A: Correct.

Q: Did you ask the informant before looking at the video 

 what happened inside the apartment? 

A: Yes. I took a statement from the informant after the 

 transaction took place.

Q: And was that statement consistent with what took place

 on the video?

A: After reviewing the video, the statement was completely

 consistent with what took place.

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(R:282). Defense counsel failed to preserve the issue and did not object until after 

the next question was posed, which was “Was it at that time that you paid the 

informant?” R:282.

3

The failure to object was of course compounded when defense counsel failed 

to object to the prosecutor informing the jury that the informant was reliable:

Ladies and gentlemen of the jury, there is 

your case right there.

Now, some of you might be saying, well, wait 

a minute, Mr. Strauss, why can’t I see the 

dime? 

Why can’t I see it? 

Where is it? 

Prove it to me. 

Well, you have to rely on your common 

sense, now. This is where you as jurors come 

together and use your common sense. 

You didn’t hear from an informant because 

that informant is confidential. 

And the reason they are confidential is so 

they can continue to remain confidential. 

So what did the government do? 

Well, they gave you an officer who said, I 

searched her. I gave her $10.

She has been proven to be reliable. 

3 The attorney general’s office also acknowledged in its Answer Brief that the 

objection was lodged in an untimely manner and therefore not preserved.

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She went, came back. 

End of story. 

That is it. 

That is the government’s case. 

R:344-45. This improper argument clearly compounded counsel’s failure to object 

to the testimony, and also was objectionable itself.

Counsel was ineffective for failing to timely object to this improper line of 

questioning, as well as in closing argument. It is improper to inform a jury that the 

informant is reliable, which amounts to improper bolstering of a state witness, as in 

the similar case of Jennings v. State, 2020 WL 1873228 (Fla. 4th DCA 2020) 

(granting new trial based on detective’s improper vouching of non-testifying 

informant by calling informant reliable); see also Page v. State, 733 So.2d 1079 (Fla. 

4th DCA 1999) (granting new trial when detective informed jury that informant was 

reliable).

First, counsel failed to obtain a correct ruling on the matter because the 

objection lodged was not applicable to the question pending. This prevented the 

court from giving a limiting instruction or seeking a mistrial. See Burford v. State, 8 

So.3d 478 (Fla. 4th DCA 2009) (Defense counsel must object to improper comments 

“in order to allow a curative instruction or admonishment to counsel”). This likewise 

applies to improper testimony.

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The combination of this prejudicial impact of this testimony and the closing 

argument compounded the error. This combined bolstering was prejudicial because 

counsel argued that the handler of the informant was a male and therefore, the 

detective failed to conduct a thorough and more intrusive search of the female 

informant for drugs or money.

Here, the inescapable conclusion from the improper testimony clearly 

conveyed to the jury that the informant told the detective that the Petitioner sold her 

the crack cocaine. The specific questions asked, especially the questions leading up 

to the question asking whether the informant’s version was consistent with the 

recording, clearly conveys this message. See Geissler v. State, 90 So.3d 941 (Fla. 2d 

DCA 2012) (even “if the expert does not comment directly on the child victim's 

credibility, expert testimony is improper if the juxtaposition of the questions 

propounded to the expert gives the jury the clear impression that the expert believed 

that the child victim was telling the truth.”). This testimony, especially when 

combined with the other errors, such as the informant’s statement that the jury was 

told to simply ignore, prejudiced the Petitioner.

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GROUND FOUR

THE PETITIONER’S FAILURE TO FILE A MOTION TO MITIGATE 

SENTENCE WAS NOT KNOWINGLY, INTELLIGENTLY AND 

VOLUNTARILY MADE UNDER THE DUE PROCESS CLAUSE OF 

THE U.S. CONSTITUTION.

The petitioner filed this claim in the State Court on the basis that his decision 

was not knowingly, voluntarily and intelligently waived under the Due Process Fifth 

Amendment to the U.S. Constitution. R:12-17. The State court denied this claim 

without an evidentiary hearing. Relief is required here because the State Court’s 

decision involved an unreasonable application of clearly established federal law

pertaining to the Fifth Amendment to US Constitution and the requirements that 

decisions be made voluntarily under United States Supreme Court precedent. 

Likewise, relief is required because the State Court’s decision is based on an 

unreasonable determination of the facts in light of the evidence presented in the State 

Court proceeding. Buhs v. Sec’y Dep’t of Corr, 2020 WL 1873298 (11th. Cir. April 

15, 2020). There has been no adjudication on the merits and thus, no deference is 

afforded. When this occurs, this court does not defer to the lower court’s findings. 

The petitioner hired counsel to represent him after the Petitioner’s direct 

appeal was denied in order to file a motion for post-conviction relief. Counsel was 

retained within the 60-day time period to file a motion to mitigate sentence under 

Fla. R. Crim. P. 3.580 after the issuance of the mandate on July 29, 2016. However, 

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the Petitioner was not advised that a motion to mitigate sentence could be filed by 

counsel or the Petitioner, nor was the Petitioner aware that this type of motion could 

be filed. Had the Petitioner known that he could have filed this motion, he would 

have done so. The Petitioner was entitled as a matter of law to have a motion filed 

and have it considered by the trial court.

Had counsel advised the Petitioner, or had the petitioner been aware, that this 

motion could have been filed, then the Petitioner would have advised counsel to file 

the motion, which counsel would have filed in a timely manner. Alternatively, the 

Petitioner would have timely filed it pro-se.4 The motion would have contained 

arguments argued that mitigation was warranted, the sentence was too harsh in light 

of the petitioner’s medical conditions and that he should be sentenced to more than 

the lowest permissible sentence, which was only 52 months.

Likewise, the petitioner would have also argued that mitigation was 

warranted, especially in light of the deficient acts of counsel alleged in the state postconviction motion. See Torrealba v. State, 882 So.2d 408 (Fla. 3d DCA 2004)

(motion to mitigate sentence under 3.800 (c) was filed, arguing, inter alia, that 

ineffective assistance of counsel warranted mitigation). The motion would have also 

4 Since counsel did not file a notice of appearance, the court would have been 

required to accept the motion as a proper and timely motion. It would not have been 

a nullity and would have been considered by the court.

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argued that defense counsel was not prepared due to the improper notice. Of course, 

this rule allows for mitigation for any reason (even if the court simply thought the 

previous sentence was too harsh) so these grounds did not have to be proven as if 

the petitioner was seeking a downward departure.

The Petitioner recognizes that a motion to mitigate under rule 3.800(c) is a 

collateral proceeding and thus, counsel cannot be deemed ineffective since the 

Petitioner had no right to counsel for this collateral proceeding. However, this claim 

is not predicated on counsel’s failure to render effective assistance, but instead, it is 

a separate and distinct claim of involuntariness wholly apart from a claim of 

ineffective counsel under the Sixth Amendment. See Panchu v. State, 1 So.3d 1243 

(Fla. 4th DCA 2009); Brazeail v. State, 821 So.2d 364 (Fla. 1st DCA 2002) 

(recognizing the difference between a claim of involuntariness in the context of a 

plea and a claim grounded on ineffective assistance of counsel); see also Yeomans 

v. State, 172 So.3d 1006 (Fla. 1st DCA 2015).

Instead, as argued to the State court, the claim is based on a violation of the 

Petitioner’s right to Due Process, as well the principles set forth in Brady v. United 

States, 397 U.S. 742 (1970); North v. Alford, 400 U.S. 25 (1970); McMann v. 

Richardson, 397 U.S. 759 (1970); Boykin v. Alabama, 395 U.S. 238 (1969). Indeed, 

this presents a federal claim because the Petitioner forfeited a proceeding that he was 

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entitled to utilize and have the court consider. His failure to file the motion was not 

knowingly forfeited.

Although the petitioner was not entitled to counsel for the proceeding, he was 

still entitled as a matter of right to file a motion under Fla. R. Crim. P. 3.800(c), 

which gives the court discretion to mitigate the petitioner’s sentence for any reason. 

The Court’s decision in Lee v. United States, 137 S.Ct. 1958 (2017), provides a 

similar analysis to be used to determine whether his failure to file the motion was 

knowingly made since it resulted in a forfeiture of a proceeding that he was entitled.5

The Supreme court recognized that it is the denial of a proceeding that a 

Petitioner was entitled to – regardless of result – that is relevant, not the probability 

of being granted:

But in this case counsel's “deficient performance 

arguably led not to a judicial proceeding of disputed

reliability, but rather to the forfeiture of a 

proceeding itself.” Flores–Ortega, 528 U.S., at 483, 

120 S.Ct. 1029. When a Petitioner alleges his 

counsel's deficient performance led him to accept a 

guilty plea rather than go to trial, we do not ask 

whether, had he gone to trial, the result of that trial 

“would have been different” than the result of the 

plea bargain. That is because, while we ordinarily 

“apply a strong presumption of reliability to judicial 

proceedings,” “we cannot accord” any such 

presumption “to judicial proceedings that never 

took place.” Id., at 482–483, 120 S.Ct. 1029 

(internal quotation marks omitted).

5 Lee involves a Sixth Amendment Claim, but it is not relied on for that purpose.

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We instead consider whether the Petitioner was 

prejudiced by the “denial of the entire judicial 

proceeding ... to which he had a right.” Id., at 483, 

120 S.Ct. 1029. As we held in Hill v. Lockhart, 

when a Petitioner claims that his counsel's deficient 

performance deprived him of a trial by causing him 

to accept a plea, the Petitioner can show prejudice 

by demonstrating a “reasonable probability that, but 

for counsel's errors, he would not have pleaded 

guilty and would have insisted on going to trial.” 

474 U.S., at 59, 106 S.Ct. 366.

Lee, 137 S. Ct. at 1965 (emphasis added).6

Thus, the Petitioner did not knowingly waive his right to this proceeding. The 

proper remedy is for this Honorable Court to allow the Petitioner to file a motion to 

mitigate his sentence under Fla.R.Crim.P. 3.800(c) with a full and meaningful 

consideration of the motion. This is an appropriate and fair remedy that is required 

by the Due Process Clause of the Fifth Amendment and under logic set forth in Lee.

REQUEST FOR CERTIFICATE OF APPEALABILITY 

Although the petition should be granted, a certificate of appealability should 

be issued if said petition is denied. Reasonable jurists could debate whether the 

constitutional questions presented entitle the petition to the requested relief. All of 

the petitioner’s claim involve a Federal Constitutional question or issue.

6 Again, Lee was merely cited to emphasize the significance of the forfeiture of a 

legal proceeding in which a Petitioner has a right. The claim presented is not a claim 

of ineffective counsel, but instead one regarding whether his failure to file the motion 

was knowingly done.

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13. All of the aforementioned grounds for relief raised in this petition 

have been presented to the highest state court having jurisdiction. 

14. There are no other motions, petitions or applications that were ever filed 

 in Federal Court. 

15. There are no other motions, petitions or appeals pending in any state or 

 Federal court.

16. The Petitioner’s prior attorneys were: 

a) Lower Court Proceedings and Pleadings: Samuel Lopez, Esq., 1806 

N. Flamingo Rd, #331, Pembroke Pines, FL 33028. 

b) Appellate Proceedings: Office of the Public Defender, 421 Third 

Street, Sixth Floor, West Palm Beach, FL 33401. 

c) Post-Conviction Proceedings State Motion: Russell Williams, Esq. 

633 Southeast 3rd Avenue Suite 301, Fort Lauderdale, Florida 33301

and Jason T. Forman, 110 Southeast 6th Street, Suite 1734, Fort 

Lauderdale, FL 33301.

d) Appeal of the denial of the Motion for Post-Conviction Relief:

Jason T. Forman, Esq. 110 Southeast 6th Street, Suite 1734, Fort 

Lauderdale, FL 33301.

17. The Petitioner does not have any future sentence to serve after serving the 

sentence that is being challenged within the instant petition.

18. The Petitioner’s Writ for Habeas Corpus is being filed within the one year 

of the statute of limitations contained in 28 U.S.C. § 2244(d) and explained 

in the petition and thus, it is not time barred. 

WHEREFORE, the Petitioner is respectfully requesting an evidentiary 

hearing, and an order granting the Petition for Writ of Habeas Corpus, remanding 

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the matter back to the trial court for the appropriate relief, providing petitioner with 

her fundamental rights under the Fifth, Sixth and Fourteenth Amendments to the US 

Constitution. A certificate of Appealability is respectfully requested for all

claims that are denied. 

Respectfully submitted, Respectfully submitted, 

Law Offices of Russell J. Williams, P.A. Law Offices of Jason T. Forman, P.A. 

(For Claim 4) 110 Tower, Suite 1734 

633 Southeast Third Avenue, Suite 301 110 Southeast 6th Street

Fort Lauderdale, Florida 33301 Ft. Lauderale, Florida 33301 

(954) 525-2889 (954) 527-5557

Email: Rjwesquire@aol.com Email: attorneyforman@yahoo.com 

By: /s/ Russell J. Williams By:/s/ Jason T. Forman 

 Russell J. Williams, Esq. Jason T. Forman, Esq

 Florida Bar No.: 727751 Florida Bar No.: 109850

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of this Petition for Writ 

of Habeas Corpus was electronically filed with the Clerk of the United States 

District Court of Appeal, Southern District (CM/ECF), 299 East Broward 

Boulevard, Fort Lauderdale, Florida 33301 and was also simultaneously sent to the 

Office of the Attorney General, crimappwpb@myfloridalegal.com, 1515 North 

Flagler Drive, 9th Floor, West Palm Beach, Florida 33401, and via U.S. Mail to 

Petitioner, Samuel Roberts, DC No.: 075687, Dade Correctional Institution 

(Male)19000 S. W. 377th Street, Florida City, Florida 33034-6409 on this 8th day 

of May, 2020. 

Respectfully submitted, Respectfully submitted, 

Law Offices of Russell J. Williams, P.A. Law Offices of Jason T. Forman, P.A. 

(For Claim 4) 110 Tower, Suite 1734 

633 Southeast Third Avenue, Suite 301 110 Southeast 6th Street

Fort Lauderdale, Florida 33301 Ft. Lauderdale, Florida 33301 

(954) 525-2889 (954) 527-5557

Email: Rjwesquire@aol.com Email: attorneyforman@yahoo.com 

By: /s/ Russell J. Williams By:/s/ Jason T. Forman 

 Russell J. Williams, Esq. Jason T. Forman, Esq

Florida Bar No.: 727751 Florida Bar No.: 109850

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