United States District Court 

for the 

Southern District of Florida 

Alexandre Lema-Kenzo, 

Petitioner 

v. 

Sec’y, Fla. Dep’t of Corr., 

Respondent. 

) 

) 

) 

) 

) 

Civil Action No. 22-14297-Scola 

Order on Petition for Writ of Habeas Corpus 

 Before the Court is Petitioner Alexandre Lema-Kenzo’s pro se petition for 

writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1). The Petitioner 

challenges the constitutionality of his state convictions and sentences on theftrelated charges in the Nineteenth Judicial Circuit for St. Lucie County. 

 The Respondent filed a response (ECF No. 7), with an index to appendix 

(ECF No. 8) including attached exhibits 1–42 (ECF No. 8-1) and a notice of 

filing transcripts (ECF No. 9) with the attached Williams Rule hearing 

transcript (ECF No. 9-1), plea hearing transcript, (ECF No. 9-2), and sentencing 

hearing transcript, (ECF No. 9-3). The Petitioner thereafter filed a reply, (ECF 

No. 10). The Court has carefully reviewed the parties’ written submissions, the 

record, and applicable law. For the reasons explained below, the petition is 

dismissed in part and denied in part. 

1. Background 

On July 21, 2016, the Petitioner was charged by information with: 

Ct. 1: Third Degree Grand Theft (F 3) 

Ct. 2: Third Degree Grand Theft (F 3) 

Ct. 3: Third Degree Grand Theft (F 3) 

Ct. 4: Criminal Use of Personal I.D. Information (F 3) 

Ct. 5: Providing False Information In An Application for 

Indigency Status (M 1) 

(ECF No. 8-1 at 2-3). The State later dismissed Count 3, and on May 20, 2019, 

the Petitioner entered an open no contest plea to the remaining four counts. 

(See id. at 39-45). On June 18, 2019, the trial court sentenced the Petitioner to 

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a concurrent term of five years imprisonment on Counts 1 and 2 with credit for 

time served; on Count 4, the trial court sentenced the Petitioner to five years of 

probation, to follow the sentences imposed for Counts 1 and 2; and on Count 

5, the Petitioner was sentenced to time served. (See id. at 50–58). 

 The Petitioner appealed, and on April 23, 2020, the Fourth District Court 

of Appeal (“Fourth District”) per curiam affirmed. See Lema-Kenzo v. State, 294 

So. 3d 889 (Fla. 4d DCA 2020). Back at the trial court, the Petitioner filed a 

Rule 3.850 motion for postconviction relief which was denied and affirmed on 

appeal. See Lema-Kenzo v. State, 336 So. 3d 729 (Fla. 4d DCA 2022).

 The instant petition was docketed on August 24, 2022. 

 2. Legal Standard 

Deference Under § 2254 

 A court’s review of a state prisoner’s federal habeas corpus petition is 

governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 

Abdul–Kabir v. Quarterman, 550 U.S. 233, 246 (2007). AEDPA “imposes a 

highly deferential standard for evaluating state-court rulings . . . , and 

demands that state-court decisions be given the benefit of the doubt[.]” Renico 

v. Lett, 559 U.S. 766, 773 (2010). “The purpose of AEDPA is to ensure that 

federal habeas relief functions as a guard against extreme malfunctions in the 

state criminal justice systems, and not as a means of error correction.” Ledford 

v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 

2016). This standard is “difficult to meet.” White v. Woodall, 572 U.S. 415, 419 

(2014). 

 According to AEDPA, a federal court may not grant a habeas petitioner 

relief on any claim adjudicated on the merits in state court unless the state 

court’s decision (1) “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) “was based on an unreasonable determination of the facts 

in light of the evidence presented in the State court proceeding.” 28 U.S.C. 

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§ 2254(d); see also Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039, 1053 

(11th Cir. 2017) (citing 28 U.S.C. § 2254(d)). 

 A state court decision is “contrary to” established Supreme Court 

precedent when it (1) applies a rule that contradicts the governing law set forth 

by the Supreme Court; or (2) confronts a set of facts materially 

indistinguishable from a decision of the Supreme Court and nevertheless 

arrives at a result different from Supreme Court precedent. Williams v. Taylor, 

529 U.S. 362, 405-06 (2000). An “unreasonable application” of clearly 

established federal law is different from an incorrect application of federal law. 

Id. at 410. Consequently, “[a] state court’s determination that a claim lacks 

merit precludes federal habeas relief so long as fairminded jurists could 

disagree on the correctness of the state court’s decision.” Harrington v. Richter,

562 U.S. 86, 101 (2011). If the last state court to decide a prisoner’s federal 

claim provides an explanation for its merits-based decision in a reasoned 

opinion, “a federal habeas court simply reviews the specific reasons given by 

the state court and defers to those reasons if they are reasonable.” Wilson v. 

Sellers, 138 S. Ct. 1188, 1192 (2018). 

 Even summary rejection of a claim, without explanation, qualifies as an 

adjudication on the merits, warranting deference. See Meders v. Warden, Ga. 

Diagnostic Prison, 911 F.3d 1335, 1351 (11th Cir. 2019). If the state court’s 

merits determination is unaccompanied by an explanation, federal courts 

should “‘look through’ the unexplained decision to the last related state-court 

decision that does provide a relevant rationale” and “presume that the 

unexplained decision adopted the same reasoning.” Wilson, 138 S. Ct. at 1192. 

Furthermore, a decision is still an adjudication on the merits when it 

“addresses some but not all of a defendant’s claims.” Johnson v. Williams, 568 

U.S. 289, 298 (2013). 

Ineffective Assistance of Counsel 

 The Sixth Amendment to the United States Constitution guarantees 

criminal defendants the right to assistance of counsel during criminal 

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proceedings. See Strickland v. Washington, 466 U.S. 668, 684-85 (1984). When 

assessing counsel’s performance under Strickland, the Court employs a strong 

presumption that counsel “rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment.” Id. 

at 690. “[T]he Sixth Amendment does not guarantee the right to perfect 

counsel; it promises only the right to effective assistance[.]” Burt v. Titlow, 571 

U.S. 12, 20 (2013). “Where the highly deferential standards mandated by 

Strickland and AEDPA both apply, they combine to produce a doubly 

deferential form of review that asks only ‘whether there is any reasonable 

argument that counsel satisfied Strickland’s deferential standard.’” 

Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013) (quoting 

Harrington v. Richter, 562 U.S. 86, 105 (2011)). 

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

must demonstrate both (1) that counsel’s performance was deficient; and (2) a 

reasonable probability that the deficient performance prejudiced the defense.

See Strickland, 466 U.S. at 687-88; see also Harrington, 562 U.S. at 104. 

 To establish deficient performance, the petitioner must show that, 

considering all circumstances, “counsel’s conduct fell ‘outside the wide range of 

professionally competent assistance.’” Cummings v. Sec’y for Dep’t of Corr., 588 

F.3d 1331, 1356 (11th Cir. 2009) (quoting Strickland, 466 U.S. at 690). 

Strategic choices made after thorough investigation of the law and facts 

relevant to plausible options are virtually unchallengeable. See Strickland, 466 

U.S. at 690-91. The court’s review of counsel’s performance should focus on 

“not what is possible or ‘what is prudent or appropriate, but only [on] what is 

constitutionally compelled.’” Chandler v. United States, 218 F.3d 1305, 1313 

(11th Cir. 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). Counsel is 

not ineffective for failing to raise non-meritorious issues, see Chandler v. Moore, 

240 F.3d 907, 917 (11th Cir. 2001); nor is counsel required to present every 

non-frivolous argument, see Dell v. United States, 710 F.3d 1267, 1282 (11th 

Cir. 2013).

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 Regarding the prejudice component, “[t]he defendant must show that 

there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Strickland, 466 U.S. at 

694. “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id. A court need not address both prongs of 

Strickland if the defendant makes an insufficient showing on one of the prongs. 

See id. at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013). 

 3. Discussion 

 a. Timeliness 

The Respondent concedes, and the Court confirms, that the petition was 

timely filed. (See ECF No. 7 at 5). 

b. Exhaustion/Procedural Default 

 Ground One 

 A federal district court may not grant habeas corpus relief under 28 

U.S.C. § 2254 unless “the applicant has exhausted the remedies available in 

the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A). The Respondent asserts 

that Ground One is procedurally defaulted. (See ECF No. 7 at 7). Having 

reviewed the record in full, the Court agrees. Moreover, in his reply, the 

Petitioner states that he “concedes and agrees with the Assistant Attorney 

General’s argument.” (ECF No. 10 at 5). The Court thus dismisses Ground One 

as procedurally defaulted. 

 c. The Merits 

The Court proceeds to address the merits of the remaining grounds. 

 Ground Two 

The Petitioner asserts that “[t]he postconviction court erred in denying 

Ground One of the Petitioner’s Rule 3.850 that trial counsel rendered 

ineffective assistance misadvising him by making promises as to the length of 

the sentence he would receive in violation of his 5th, 6th, and 14th Amendment 

Rights.” (ECF No. 1 at 6). As noted, the Petitioner raised this ineffective 

assistance claim as ground one in his motion for postconviction relief, the 

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postconviction court denied relief, and the Fourth District affirmed. See LemaKenzo v. State, 336 So. 3d 729 (Fla. 4d DCA 2022). Having reviewed the record 

in full, the Court finds nothing unreasonable with the state courts’ rejection of 

this claim. See 28 U.S.C. § 2254(d). 

 The record shows that the Petitioner entered a knowing and voluntary 

open plea without any promise as to what his sentence would be, and with the 

understanding that his maximum possible sentence was sixteen years. (See 

ECF No. 8-1 at 42). Among other factors, the Petitioner’s plea form has the 

following checked for Paragraph 10: 

Check if open plea to the court () regardless of the 

recommendations of my lawyer and the State Attorney, the 

court may sentence me to any legal sentence, including the 

maximum sentence allowed by law. 

(ECF No. 8-1 at 40) (italics added). “Solemn declarations in open court carry a 

strong presumption of verity. The subsequent presentation of conclusory 

allegations unsupported by specifics is subject to summary dismissal, as are 

contentions that in the face of the record are wholly incredible.” Blackledge v. 

Allison, 431 U.S. 63, 74 (1977). The Court finds the Petitioner’s solemn 

declarations veritable and his contentions in Ground Two wholly incredible in 

the face of the record. See id. Ground Two is thus denied. 

Ground Three 

The Petitioner asserts that “[t]he trial court erred in denying ground two 

that trial counsel failed to advise him that he would face the same penalties for 

an open plea as would if he went to trial and lost in violation of his 5th, 6th, 

and 14th Amendment Rights.” (ECF No. 1 at 8). As noted, the Petitioner raised 

this ineffective assistance claim as ground two in his motion for postconviction 

relief, the postconviction court denied relief, and the Fourth District affirmed. 

See Lema-Kenzo v. State, 336 So. 3d 729 (Fla. 4d DCA 2022). Having reviewed 

the record in full, the Court finds nothing unreasonable with the state courts’ 

rejection of this claim. See 28 U.S.C. § 2254(d). 

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 As explained in Ground Two, the Petitioner entered a knowing and 

voluntary open plea without any promise as to what his sentence would be, 

and with the understanding that his maximum possible sentence was sixteen 

years. (See ECF No. 8-1 at 42). Once again, the Court finds the Petitioner’s 

solemn declarations veritable and his contentions in Ground Three wholly 

incredible in the face of the record. See Blackledge, 431 U.S. at 74. Ground 

Three is thus denied. 

Ground Four 

The Petitioner asserts that “[t]he trial court erred in denying ground three 

that trial counsel failed to advise the appellant that he could withdraw his plea 

prior to sentencing under Fla. R. Crim. P. 3.170 in violation of his 5th, 6th, and 

14th, Amendment Rights.” (ECF No. 1 at 10). As noted, the Petitioner raised 

this ineffective assistance claim as ground three in his motion for 

postconviction relief, the postconviction court denied relief, and the Fourth 

District affirmed. See Lema-Kenzo v. State, 336 So. 3d 729 (Fla. 4d DCA 2022). 

 The record shows that the trial court reasoned as follows in denying this 

ground: 

The Defendant does not demonstrate that he discussed with 

Counsel any issue that would have caused Counsel to 

discuss the possibility of a motion to withdraw plea prior to 

sentencing. Further, this Court, who would have heard a 

motion to withdraw plea, would not have found that the 

Defendant demonstrated good cause to allow him to 

withdraw his plea. Even had Counsel filed a motion to 

withdraw plea, it would not have been granted. The 

Defendant's claim is refuted by the record and without 

merit. 

(ECF No. 8-1 at 231). In sum, having reviewed the record in full, the Court 

finds nothing unreasonable with the state courts’ rejection of this claim. See 28 

U.S.C. § 2254(d). Ground Four is thus denied. 

Ground Five 

The Petitioner asserts that “[t]he trial court erred in denying ground four 

that trial counsel rendered ineffective assistance by failing to move for a 

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continuance in order for him to meet the terms of the plea agreement and to 

investigate his mental health issues for presentation to the court in violation of 

his 5th, 6th, and 14th Amendment Rights.” (ECF No. 1 at 12). As noted, the 

Petitioner raised this ineffective assistance claim as ground four in his motion 

for postconviction relief, the postconviction court denied relief, and the Fourth 

District affirmed. See Lema-Kenzo v. State, 336 So. 3d 729 (Fla. 4d DCA 2022). 

 The record shows that the trial court reasoned as follows in denying this 

ground: 

During the plea process, the State indicated that it would 

drop one of the grand theft charges if the Defendant fully 

paid the restitution amount to the victim of that charge. The 

Defendant does not allege that he asked or gave any 

indication to Counsel to move for a continuance. Given the 

facts of this case and the interactions with the Defendant, 

there was not a reasonable probability that a motion for 

continuance would have been granted. The Defendant's 

claim is without merit. 

(ECF No. 8-1 at 231). In sum, having reviewed the record in full, the Court 

finds nothing unreasonable with the state courts’ rejection of this claim. See 28 

U.S.C. § 2254(d). Ground Five is thus denied. 

Ground Six 

The Petitioner asserts that his “[a]ppellate counsel rendered ineffective 

assistance when he failed to raise the claim that the trial court was without 

subject matter jurisdiction because no crime was committed in the State of 

Florida.” (ECF No. 1 at 16). The Petitioner raised this issue in his Second 

Amended Petition for Writ of Habeas Corpus and the Fourth District denied 

relief. (See ECF No. 8-1 at 389). Having reviewed the record in full, the Court 

finds nothing unreasonable with the state courts’ rejection of this claim. See 28 

U.S.C. § 2254(d). 

 As the Respondent explains, “for element 1 of the Grand Theft charged in 

Counts 1 and 2, respectively, Petitioner obtained and endeavored to obtain the 

property of Carter (money from her IRA)—and Carter lived in Port St. Lucie, 

Florida.” (ECF No. 7 at 33). For Count 4, “Petitioner’s failure to obtain Carter’s 

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consent to use her personal identification information was an omission to 

perform a duty imposed by Florida law, and thus Florida had jurisdiction[.]” (Id. 

at 34). Finally, for Count 5, “Florida properly had jurisdiction over this offense 

because the result of the offense—false information provided to the clerk of 

court in St. Lucie County—occurred within the state.” (Id.). In sum, the 

Petitioner’s claims are meritless and so counsel cannot be deemed ineffective 

for failing to raise them. See Chandler, 240 F.3d at 917. Ground Six is thus 

denied. 

 d. Evidentiary Hearing

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

establish the need for an evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of 

Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “[I]f 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 v. Landrigan, 550 

U.S. 465, 474 (2007); see also Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 

1318-19 (11th Cir. 2016). Here, the record refutes the Petitioner’s factual 

allegations and precludes habeas relief. See id. Because the Court can 

“adequately assess [the Petitioner’s] claim[s] without further factual 

development[,]” he is not entitled to an evidentiary hearing. Turner v. Crosby, 

339 F.3d 1247, 1275 (11th Cir. 2003). 

 e. Certificate of Appealability 

A prisoner seeking to appeal a district court’s final order denying his or 

her petition for writ of habeas corpus has no absolute entitlement to appeal; 

rather, in order to do so, she must obtain a certificate of appealability. See 28 

U.S.C. § 2253(c)(1); see also Harbison v. Bell, 556 U.S. 180, 183 (2009). The 

Court should issue a certificate of appealability only if the petitioner makes “a 

substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 

2253(c)(2). To make such a showing, the petitioner must demonstrate that 

“reasonable jurists” would find the correctness of the district court’s rulings 

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“debatable.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Petitioner does 

not satisfy this burden, so the Court will not issue a certificate of appealability. 

 4. Conclusion 

For the foregoing reasons, Petitioner Alexandre Lema-Kenzo’s petition for 

writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 1) is dismissed in part 

and denied in part. Ground One is dismissed as procedurally defaulted. 

Grounds Two, Three, Four, Five, and Six are denied. A certificate of 

appealability is also denied. Because there are no issues with arguable merit, 

an appeal would not be taken in good faith, and thus, the Petitioner is not 

entitled to appeal in forma pauperis. The Clerk is directed to close the case. 

Done and ordered, in chambers, in Miami, Florida, on May 10, 2023. 

 ________________________________ 

 Robert N. Scola, Jr. 

 United States District Judge 

Copies, via U.S. Mail, to 

Alexandre Lema-Kenzo 

S70431 

Bay Correctional Facility 

Inmate Mail/Parcels 

5400 Bayline Drive 

Panama City, FL 32404 

PRO SE

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