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1

The Court has sua sponte designated Respondent’s exhibits as being attached

to Document 15 for clarity of the record. These exhibits were not electronically filed or

scanned into the record because of their length, and there is no notation in the docket

indicating the receipt of these documents except a note from the Clerk that

Respondent’s attorney was called, and she advised the Clerk that a hard copy of the

exhibits was being mailed. See Staff Notes (Apr. 8, 2004).

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WILLIAM MILLER, # 797827,

Petitioner, 

vs. 4:03cv313-SPM/AK

DEPARTMENT OF CORRECTIONS,

Respondent. 

____________________________/

REPORT AND RECOMMENDATION

This cause is before the Court on Petitioner’s petition for writ of habeas corpus.

Doc. 1. Respondent has filed its response, Docs. 13 & 15, and Petitioner has filed his

reply. Doc. 18. This cause is therefore in a posture for decision. Having carefully

considered the matter, the Court recommends that the petition be denied.

BACKGROUND

On April 2, 2001, Petitioner entered pleas of no contest to charges of burglary of

a structure, resisting with violence, escape, forgery and uttering, and battery of an

inmate. Doc. 15, Ex. A & B.1

 At that time, the court plainly advised Petitioner that the

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State intended to have him “declared a habitual felony offender or a prison releasee

reoffender,” which could double his sentences. Id. at Ex. B. The court specifically

advised him that being found an habitual offender could “double the sentence on

escape from 15 to 30 years.” Id. The court then questioned Petitioner regarding

whether there was any agreement with the State regarding sentencing, and Petitioner

advised him that there were no sentencing agreements, and that he had not been

promised anything or threatened in any way. Id. Petitioner was subsequently

sentenced as an habitual offender as follows: (1) burglary–10 years; (2) resisting–10

years; (3) escape–15 years; (4) forgery and uttering–5 years; and (5) battery of an

inmate–5 years. See http://www.dc.state.fl.us/ActiveInmates; Doc. 15, Ex. C. All

sentences were to run concurrently. Doc. 15, Ex. C. Petitioner did not file a direct

appeal.

He did, however, file a motion for post-conviction relief raising two claims of

ineffective assistance of counsel. Doc. 15, Ex. C. In the first ground, he claimed that

counsel was ineffective for advising him to plead guilty to escape without knowledge of

the facts and without determining the existence of the elements of the offense. Id. In

his second ground, he charged that counsel was ineffective for failing to advise him of

the State’s plea offer of ten years concurrent on all charges. Id. To the motion, he

attached a handwritten “bottom line” plea offer. Id. Petitioner later filed a supplement to

his motion charging that counsel was ineffective for failing to investigate the charges

against him, for failing to interview exculpatory witnesses, and for misadvising him. 

Doc. 15, Ex. D.

The state court denied the motion and supplemental motion, finding:

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As the attached documents, from the court file, demonstrate, there was a

factual basis to support the plea on all charges, [Petitioner’s] statement

that he was unaware of the State’s plea offer is refuted on the face of the

record, and the defense of voluntary intoxication is not applicable to any

charge to which [Petitioner] [pled].

Doc. 15, Ex. E. Attached to the court’s ruling are various police department offense

reports, witness statements, the plea and acknowledgment of rights, and the transcript

of the plea hearing. Id. Petitioner appealed that ruling, which was affirmed without

opinion. Doc. 15, Ex. F. Petitioner’s motion for rehearing was denied. Id.

The instant petition ensued. On this occasion, Petitioner alleges that counsel

was ineffective for advising him to plead guilty to the escape charge when the elements

of the offense did not exist. Doc. 1. He also claims that counsel was ineffective for

failing to convey the “bottom line” plea offer to him. Id. In response, Respondent

claims that because Petitioner did not file any briefs “and made no further attempt to

prosecute” his appeal, he has not exhausted these claims. Doc. 15. He also maintains

that Petitioner has not “shown that he has been grievously wronged” or “facially

overcome the ‘presumption of finality and legality’ of his state court conviction and

sentence.” Id. 

DISCUSSION

I. Exhaustion.

Section 2254 relief will not be granted unless Petitioner “has exhausted the

remedies available in the courts of the State” or “there is an absence of available State

corrective process” or “circumstances exist that render such process ineffective to

protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(A) and (B). A claim is not

exhausted if Petitioner “has the right under the law of the State to raise, by any available

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procedure, the question presented.” 28 U.S.C. § 2254(c) To fully exhaust state

remedies, “state prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (citing 28

U.S.C. §§ 2254(b)(1) & (c)). In addition, “the federal claim must be fairly presented to

the state courts,” and it must be “the same claim.” Picard v. Connor, 404 U.S. 270, 275-

76 (1971); see also Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing Picard). 

Claims which have not been fairly presented to the state court but are defaulted

from state court review are considered technically exhausted because no remedies are

available for purposes of § 2254(c). Coleman v. Thompson, 501 U.S. 722, 732 (1991). 

See also White v. State, 664 So.2d 242, 244 (Fla. 1995) (claims that could have or

should have been raised on post-conviction and were not so raised are procedurally

defaulted). However, 

In all cases in which a state prisoner has defaulted his federal claims in

state court pursuant to an independent and adequate state procedural

rule, federal habeas review of the claims is barred unless the prisoner can

demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of justice. 

Coleman, 501 U.S. at 750.

The Court finds Respondent’s suggestion that Petitioner has not

exhausted his available state remedies completely without merit. He plainly

invoked the state court appellate process regarding the denial of his postconviction and supplemental post-conviction motions. The appeal was not

dismissed by the court of appeal for failure to prosecute or for failure to obey the

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court’s scheduling orders, and thus, because the appellate court issued a ruling

on the merits of the appeal, the Court can discern no basis for finding that

Petitioner did not properly exhaust his available state court remedies.

II. Ineffective assistance of counsel.

Under 28 U.S.C. § 2254, a federal court may grant habeas corpus relief

only if the state court 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).

Under the “contrary to” clause of § 2254(d), “a federal habeas court may

grant the writ if the state court arrives at a conclusion opposite to that reached by

[the Supreme] Court on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of materially indistinguishable

facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). “A state-court decision

will certainly be contrary to...clearly established precedent if the state court

applies a rule that contradicts the governing law set forth in [Supreme Court]

cases.” Williams, 529 U.S. at 405. A state-court decision will also be contrary to

clearly established Supreme Court precedent “if the state court confronts a set of

facts that are materially indistinguishable from a decision of [the Supreme Court]

and nevertheless arrives at a result different from [the Court’s] precedent.” Id. at

406. 

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Under the “unreasonable application” clause of § 2254(d), “a federal

habeas court may grant the writ if the state court identifies the correct governing

legal principle from [Supreme Court] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. at 413. The federal court

considering a habeas petition “may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Id. at 412.

Further, in reviewing the decision of the state court, this Court must

presume that the state court’s factual determinations are correct, and the

petitioner bears the burden of rebutting the presumption of correctness by clear

and convincing evidence. 28 U.S.C. § 2254(e)(1).

The fact that the state court did not write “an opinion that explains the

state court’s rationale,” does not detract from the deference owed to that court’s

decision. Wright v. Secretary for the Department of Corrections, 278 F.3d

1245,1255 (11th Cir. 2002).

Because both of Petitioner’s claims involve allegations that his counsel

was ineffective, a consideration of Strickland v. Washington, 466 U.S. 668

(1984), is appropriate.

To prevail on a constitutional claim of ineffective assistance of counsel, a

defendant must demonstrate (1) that his counsel’s performance was below an

objective and reasonable professional norm, and (2) that he was prejudiced by

this inadequacy. Strickland, 466 U.S. at 686. The court may dispose of the claim

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if a defendant fails to carry his burden of proof on either the performance or the

prejudice prong. Id. at 697. The court need not address the adequacy of

counsel’s performance when a defendant fails to make a sufficient showing of

prejudice. Id.; see also Tafero v. Wainright, 796 F.2d 1314, 1319 (11th Cir. 1986).

With regard to the performance prong of Strickland, a defendant must

provide factual support for his contentions that counsel’s performance was

constitutionally deficient. Smith v. White, 815 F.2d 1401, 1406-07 (11th Cir.

1987). The court must consider counsel’s performance in light of all of the

circumstances at that time and indulge in a strong presumption that counsel’s

conduct fell within the wide range of reasonably professional assistance. 

Strickland, 466 U.S. at 689-90. To show counsel’s performance was

unreasonable, a defendant must establish that “no competent counsel would

have taken the action that his counsel did take.” Grayson v. Thompson, 257 F.3d

1194, 1216 (11th Cir. 2001) (emphasis omitted). “An ambiguous or silent record is

not sufficient to disprove the strong and continuing presumption...that [counsel]

did what he should have done and that he exercised reasonable professional

judgment.” Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000)

(en banc), cert. denied, 531 U.S. 1204 (2001). “The relevant question is not

whether counsel’s choices were strategic, but whether they were reasonable.” 

Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no “absolute rules”

for determining whether counsel’s actions were indeed reasonable, as “[a]bsolute

rules would interfere with counsel’s independence–which is also constitutionally

protected–and would restrict the wide latitude counsel have in making tactical

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decisions.” Putnam v. Head, 268 F.3d 1223, 1244 (11th Cir. 2001). “To uphold a

lawyer’s strategy, [the Court] need not attempt to divine the layer’s mental

processes underlying the strategy.” Chandler, 218 F.3d at 1315 n.16. “No

lawyer can be expected to have considered all of the ways [to provide effective

assistance].” Id. Quite importantly,

If a defense lawyer pursued course A, it is immaterial that some

other reasonable courses of defense (that the lawyer did not think

of at all) existed and that the lawyer’s pursuit of course A was not a

deliberate choice between course A, course B, and so on. The

lawyer’s strategy was course A. And [the Court’s] inquiry is limited

to whether this strategy, that is, course A, might have been a

reasonable one.

Id.

To show prejudice, a defendant must show more than simply that

counsel’s unreasonable conduct might have had “some conceivable effect on the

outcome of the proceeding.” Strickland, 466 U.S. at 693. Instead, a defendant

must show a “reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 694. A

“reasonable probability is defined as a probability sufficient to undermine

confidence in the outcome.” Id. Additionally, prejudice is established only with a

showing that the result of the proceeding was fundamentally unfair or unreliable. 

Lockhart v. Hill, 506 U.S. 364, 370 (1993). 

Finally, the Eleventh Circuit has recognized that given the principles and

presumptions set forth above, “the cases in which habeas petitioners can

properly prevail...are few and far between.” Chandler, 218 F.3d at 1313 (11th Cir.

2000). This is because the test is not what the best lawyers would have done or

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even what most good lawyers would have done, but rather whether a reasonable

lawyer could have acted in the circumstances as defense counsel acted. 

Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000), cert. denied, 534 U.S.

903 (2001).

A. Improper advice to plead guilty to escape charge.

Initially, the Court notes that Petitioner did not plead guilty to the escape

charge. He pled no contest, a plea which “does not admit the allegations of the

charge in a technical sense but only says that the defendant does not choose to

defend.” Vinson v. State, 345 So.2d 711, 715 (Fla. 1977). “It is merely a formal

declaration that the accused will not contest the charges with the prosecutor and

is in the nature of a compromise between the state and the accused.” Id. A no

contest plea “has been determined to be equivalent to a guilty plea only insofar

as it gives the court the power to punish.” Id.

According to Petitioner, he should not have entered this plea because the

elements for escape were not present. More specifically, he suggests that

because he was not validly arrested, “there can not be a valid escape.” Doc. 1. 

The state court found Petitioner’s argument that his counsel was ineffective for

allowing him to plead to a charge which lacked the necessary elements to be

without merit, a finding that was based, primarily it seems, on the officer’s report. 

As previously noted, the state court’s decision is entitled to deference unless it

resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Supreme Court precedent, or resulted in a

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decision that was based on an unreasonable determination of the facts in light of

the evidence presented to the state court.

Under Florida law, escape “covers multiple circumstances in which a

prisoner, in lawful custody...escapes, or attempts to escape by intending to avoid

lawful confinement.” Clark v. State, 920 So.2d 634, 636 (Fla. Dist. Ct. App.

2005). “A prisoner is defined as a person under arrest and in lawful custody of a

law enforcement official.” Id. A prisoner is under a “valid arrest” where there is

(1) a “purpose or intention to effect an arrest under a real or pretended authority,”

(2) an “actual or constructive seizure or detention of the person to be arrested by

a person having present power to control the person arrested,” (3) a

“communication by the arresting officer to the person then and there to effect an

arrest,” and (4) an “understanding by the person whose arrest is sought that it is

the intention of the arresting officer then and there to arrest and detain him.” Id. 

In Clark, a deputy sheriff found the defendant sitting in a parked vehicle, advised

him that he was under arrest on an outstanding warrant and directed him to step

out of the car. The deputy explained to the defendant that he had a warrant for

his arrest and advised him not to flee. The defendant “turned and began moving

away,” and the deputy attempted to grab him and then to stop him with pepper

spray “to no avail.” The defendant was, however, “soon apprehended.” Id. at

635.

In the pertinent report attached to the state court’s ruling, the officer

stated:

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I did observe [Petitioner] enter inside of the residence, and then he

was observed attempting to conceal himself behind a large tree in

the back yard. I did make contact with [Petitioner] and stated to

him that he was under arrest. [Petitioner] stated to me that he had

not done anything wrong, and why was he under arrest. I again

gave [Petitioner] a verbal command to lay on the ground because

he was under arrest for several open warrants. As I approached

[him] and attempted to take him into custody he began running

north behind the residence off South Main Street.

I did start pursuing [Petitioner] on foot where I did give him a verbal

command that he was under lawful arrest and to stop running. 

[Petitioner] continued running into a heavy wooded area off South

Main Street, where I did [lose] eye contact with him. Sgt. C. Gaines

and myself did attempt[ ] to locate [Petitioner] in this area with

negative results.

Doc. 15, Ex. E. The events related by the officer in this case are almost

analogous to those found in Clark. The elements for escape were plainly met,

and thus, the state court adjudication on this charge of ineffectiveness was not

unreasonable in any manner.

B. Failure to convey advantageous plea offer.

 In his second claim of ineffectiveness, Petitioner claims that after

sentencing, he discovered a “bottom line” plea offer in files secured from the

state court and the public defender’s office which showed an offer from the State

which would have resulted in a ten-year sentence on the escape charge, rather

than the fifteen-year sentence he received. Doc. 1; see also Doc. 15, Ex. C. 

According to Petitioner, counsel never conveyed this plea offer to him, and if he

had, Petitioner “would have gladly accepted a plea five years less than the

current sentence....” Doc. 1. 

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The state court flatly rejected Petitioner’s argument, finding that

Petitioner’s “statement that he was unaware of the State’s plea offer is refuted on

the face of the record....” Doc. 15, Ex. E. Though the court did not cite to any

particular part of the record, this Court assumes that its ruling was based on the

section of the plea hearing in which the prosecuting attorney stated: “I made a

plea offer that the defendant rejected several times, and I have filed various

notices of HFO and PRR.” Id. 

The state court’s factual determinations are presumed correct unless

rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). In other

words, “a federal habeas petitioner is stuck with them unless he can rebut their

presumed correctness with clear and convincing evidence to the contrary.” 

Hunter v. Secretary, 395 F.3d 1196, 1200 (11th Cir. 2005). “Clear and

convincing” evidence is an “intermediate standard” of proof, lying between

“preponderance of the evidence” and “beyond a reasonable doubt.” Addington v.

State, 441 U.S. 418, 424 (1979). Although it is a “fairly high” standard, “clear and

convincing” evidence “does not call for the highest level of proof,” but it must

demonstrate, in this context, a “high probability” that the state court’s factual

findings are unreasonable. Callahan v. Campbell, 427 F.3d 897, 926 (11th Cir.

2005); United States v. Owens, 854 F.2d 432, 435-36 (11th Cir. 1988).

Having carefully considered the matter, the Court finds no merit to

Petitioner’s argument. While Petitioner’s claim is facially appealing–after all, as

Petitioner himself states, it appears that anyone “would have gladly accepted a

plea five years less than the current sentence”--the Court cannot find that the

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state court’s determination in this regard is unreasonable. The “bottom line”

document does not stand alone, for, as noted, during the plea hearing, counsel

for the State advised the court that it had indeed offered Petitioner a plea which

he rejected several times. Neither Petitioner nor his counsel disputed the State’s

representation, and even now, Petitioner has not come forward with clear and

convincing evidence that the “bottom line” offer found in the state court and

public defender files was not the same rejected plea offer referenced by the

prosecutor. Because this Court cannot find that the state court decision was

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceeding, this claim should likewise be denied.

CONCLUSION

In light of the foregoing, it is respectfully RECOMMENDED that

Petitioner’s petition for writ of habeas corpus, Doc. 1, be DENIED, and this cause

be DISMISSED WITH PREJUDICE.

IN CHAMBERS at Gainesville, Florida, this 31st day of August, 2006.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

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recommendation. A party may respond to another party’s objections within 10 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

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