[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 14802 Non

- Argument Calendar

________________________ D.C. Docket No. 2:16

- cv - 00085

- JES

- MRM

MICAH L. LAWSON, Petitioner

- Appellant,

v ersus SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent

- Appellee.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ (August 28, 2019) Before WILLIAM PRYOR , GRANT and FAY , Circuit Judges.
PER CURIAM:

Case: 17-14802 Date Filed: 08/28/2019 Page: 1 of 102 Micah L. Lawson , a Florida prisoner, appeals the denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254

. Lawson succeeded in having two convictions vacated on direct appeal as barred by the statute of limitati on in a decision of first impression, but he was denied state postconviction relief on his claim t hat counsel was ineffective for failing to make a similar timeliness argument before trial , s ee Fla. R. Crim. P. 3.8 5 0. We issued a certificate of appealability to address “[w]hether trial counsel’s failure to move for a dismissal of the charge of lewd or lascivious battery upon an elderly person and the charge of abuse of an elderly person resulted in Lawson receiving a lo nger sentence for his conviction of burglary of a dwelling with assault or battery.” Because the Florida courts reasonably conclud e d that Lawson suffered no prejudice from counsel’s performance , we affirm. I. BACKGROUND In January 2003, a burglar sexually assaulted a 76

- year - old female in her home in Lee County, Florida. Detectives collected biological evidence from the victim, but her assailant remained unknown for several years . In November 2008 , t he Florida Department of Law Enforcement matched a specim en collected from Lawson with the biological evidence collected during the investigation

. In 2004 and 2006, the Florida L egislature a mended the statute imposing time limitations in c riminal cas e s to allow the state to prosecute specific sex crimes after

Case: 17-14802 Date Filed: 08/28/2019 Page: 2 of 103 identi fying the offender usin g biological evidence. The 2004 amendment provided that “ a prosecution for . . . [a]n offense of sexual battery under chapter 794 [ and
f

or] [ a] lewd or lascivious offense . . . may be commenced within 1 year after the date on which the identity of the accused is established . . . through the analysis of deoxyribonucleic acid (DNA) evidence . . . . ” Fla. Stat. § 775.15(8)(a). That “subsection applie[d] to any offense that [was] not otherwise barred from prosecution o n or after July 1, 2004

. ” Id

. § 775.15(8) ( b). The 2006 amendment retain ed the one - year extension so long as the offense was “ not otherwise barred from prosecution between July 1, 2004, and June 30, 200 6

. ” Id. § 775.15(15)(b). The 2006 ame ndment also provided that the prosecution o f eight specific offenses, including the two identified in the earlier amendment, could “be commenced at any time after” the offender was identified using biological evidence , i d. § 775.15(16)(a) , so long as the offense was “ not otherwise barred from prosecution on or after July 1, 2006 , ” i d. § 775.15(1 6 )(b). On November 20, 2008, t he State Attorney filed a three

- count information charging Lawson for burglary of a dwelling with assault or battery, a first

- degree felony punishable by a sentence of up to life imprisonment, id

. § 810.02(2) ; lewd or lascivious battery of an elderly person , a second

- degree felony, id. § 825.1025(2) , and abuse of an elderly person , a third

- degree felony id. § 825.102(1). After a Florida jury found Lawson guilty of the three crimes , t he

Case: 17-14802 Date Filed: 08/28/2019 Page: 3 of 104 trial court sentenced him t o concurrent terms of 65 years of imprisonment for burglary, 15 years of imprisonment for lewd or lascivious battery, and 5 years of imprisonment for elder abuse. On direct appeal, Lawson succeeded in having his convictions for the two lesser offenses vacated. Lawson v. State , 51 So. 3d 1287 (Fla. Dist. Ct. App. 2011)

. The appellate court found that the three

- year statute of limitation applicable to
Lawson’s offenses of lewd or lascivious battery and of elder abuse , Fla. Stat. § 775.15(2)(b) (2002), expired on January 25, 2006

. Lawson , 51 So. 3d at 1288. The appellate court concluded that the amendments to section 7 75.15 did not extend the time within which to prosecute Lawson ’s battery offense because the statute of limitation expired “between July 1, 2004, and July 30, 2006,” under subsection 15 and before “subsection (16) took effect on July 1, 2006

. ” Id. The appellate court also concluded that the amendments did “not apply to the offense of abuse of an elderly person” and could not extend the limitation period to prosecute Lawson for that offense. Lawson , 51 So. 3d at 1289

. Lawson moved pro se for state po stconviction relief and argued that trial counsel was ineffective for failing to mov e to dismiss his c harge s for lewd or lascivious battery and for elder abuse

. See Fla. R. Crim. P. 3.850. Lawson alleged that h e told his two attorneys t hat the statute of limitation barred his prosecution for the two offenses , but they disagreed . Lawson also alleged that , “[h]ad [he] only

Case: 17-14802 Date Filed: 08/28/2019 Page: 4 of 105 been facing count one [for burglary] he would not [have gone] to trial and counsel could ha[ve] pursued a more favorab le plea bargain than the 25 years initially offered the day of trial.” The trial court held an evidentiary hearing on Lawson’s motion. Lawson testified that attorney Christopher Whitney “never really responded” to his concerns about the statute of limitation and that attorney Tiffany Chewing told him that the biological evidence extended the limitations period to prosecute his offenses

. Attorney Whitney testified that the state offered fo r Lawson to plead guilty to his three charges in exchange for a sentence of 25 years of imprisonment, but Lawson was disinterested in the plea offer

. Trial counsel also testified that his “research of the statute led [him] to believe that because of the DN A . . . there was no time bar” to Lawson’s prosecut ion

. T he trial court denied Lawson’s postconviction motion. Fla. R. Crim. P. 3.850. The trial court ruled that trial counsel’s representation was neither deficient nor prejudicial under the two

- part standa rd of Strickland v. Washington , 466 U.S.
66 8 (1984) . The trial court found th at trial counsel did not act deficiently by failing to move to dismiss the charges because the amendments to 775.15 could be interpreted as giving “the State

. . . one year from the date that [Lawson’s] identity . . . had been established, . . . until November 4, 2009, in which to prosecute ” him

. The trial court also found that, even if Lawson’s two lesser charges had been

Case: 17-14802 Date Filed: 08/28/2019 Page: 5 of 106 dismissed, it could have “imposed a life sentence for the conviction of burglary with assault or battery” and “would have imposed the same sentence of 65 years for [the] convic tion . . . .” Lawson appealed, and the state appellate court affirmed summarily. Lawson v. State , 182 So. 3d 649 (Fla. Dist. Ct. App. 2015)

. Lawson filed a federal petition for a writ of habeas corpus and repeated his claim of ineffective assistance of tr ial counsel. See 28 U.S.C. § 2254. The district
court de nied the writ. The district court ruled that Lawson’s claim “clearly fails to satisfy Strickland ’s prejudice prong” because the trial court “has already told us what would have happened if Counsel had successfully moved to remove counts two and three from the information

— Lawson would have still received a sixty

- five
sentence on count one.” II. STANDARD OF REVIEW We review de novo the denial of a petition for a writ of habeas corpus involving a claim of ineffective assistance of counsel. Gissendaner v. Seaboldt , 735 F.3d 1311, 1316 (11th Cir. 2013) . A state prisoner is entitled to a writ of habeas corpus only if the state court reached a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law” or “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.” 2 8 U.S.C. § 2254(d). The “determination of a factual issue . . . by a State court [is] presumed

Case: 17-14802 Date Filed: 08/28/2019 Page: 6 of 107 to be correct” unless the state prisoner can rebut the presumption with “ clear and convincing evidence. ” Id. § 2254(e)(1). “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.” Woods v. Etherton , 136 S. Ct. 1149, 1151 (2016) (quoting Harrington v. Richter , 562 U.S. 86, 101 (2011)).
II I. DISCUSSION Lawson argues that the state court unreasonably applied Strickland in denying his claim of ineffective assistance of trial counsel. Lawson contends that trial counsel’s performance was deficient because he would have succeeded in having Lawson’s charges for lewd or lascivious battery and for elder abuse dismissed, as evidenced by Lawson’s success in having the convictions vacated on direct appeal. Lawson also co ntends that he was prejudiced because he would have received an offer from the state to plead guilty to the remaining charge of burglary of a dwelling with assault or battery, Fla. Stat. § 810.02(2), in exchange for a
sentence less than 25 years of impriso nment

. W e need not address whether counsel’s conduct was deficient because the ruling of the state court that Lawson failed to prove prejudice did not constitute an unreasonable application of Strickland or an unreasonable determination of fact.
Lawson m ust “[s]urmount[] [a particularly] high bar” to obtain a writ of habeas corpus based on ineffective assistance of counsel. Padilla v. Kentucky , 559

Case: 17-14802 Date Filed: 08/28/2019 Page: 7 of 108 U.S. 356, 371 (2010). He must prove that his attorney’s performance was deficient and that the deficiency prejudiced his defense

. Strickland , 446 U.S. at 687 . To
pr ov e prejudice, Lawson ha s to establish that the outcome of the plea process would have been different but for counsel’s deficient performance. Lafler v. Cooper , 566 U.S. 156, 16 3 (2012)

. Lawson must prove “ there is a reasonable probability that [a] plea offer would have been presented to the court

. . . , that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer ’ s terms would have been less severe than under the judgment and sentence that in fact were imposed. ” I d. at 164

. Lawson cannot satisfy the first and last elements of the Lafler test. Lawson’s argument that he would have received an offer to plead guilty to his charge of burglary of a dwelling with assault or battery, Fla. Stat. § 810.02(2), is wholly speculative. “[A] defendant has no right to be offered a plea

. . . . ” Missouri v. Fry e , 566 U.S . 13 4 , 14 8 (2012)

. Lawson also assumes that the state would have offered a sentence less than what it offered in exchange for his plea s of guilty to burglary and two other offens e s . Not only is it impossible to predict what sentence the prosecuto r might have offered , it is quite possibl e that the state would have recommended a sentence equal to or longer than 25 years of imprisonment

. Lawson’s burglary crime was a first

- degree felony for which he faced a sentence of

Case: 17-14802 Date Filed: 08/28/2019 Page: 8 of 109 up to imprisonment for life. Se e Fla. Stat. § 810.02(2). P rejudice cannot be based

on speculati on and conjecture

. Lawson also cannot establish that the trial court would have accepted a n agreement recommending that he receive a sentence of 25 years of imprisonment

o r less

. See Lafler , 566 U.S. at 16 4; see also Frye , 566 U.S. at 148 (“ a defendant has no

. . . federal right that the judge accept ” a plea agreement). The trial court stated , when it deni ed Lawson’s motion for state postconviction relief , that it would have “imposed the same sentence of 65 years” for his burglary crime even if his lesser offenses had been dismissed. And the nature of Lawson’s crime and his background w ould have supported a h arsh sentence. See Imbert v. State , 154 So. 3d 1174, 1176 (Fla. Dist. Ct. App. 2015) (holding a trial court can consider uncharged conduct in selecting a sentence); Fla. Stat. § 921.231 (1)(c) (providing that a presentence investigation report “shall includ e . . . [t] he offender ’ s prior record of arrests and convictions ”). The victim, a 76

- year - old woman, called 911 and reported that she had been raped, and the semen collected from he r identified Lawson as her assailant. In addition to that, trial counsel st ate d during the state postconviction hearing that Lawson had made a statement to law enforcement about the crime “[t]hat would not have been favorable to his case at all” and that
Lawson had a “prior criminal history that would be used to impeach his credibility.” Case: 17-14802 Date Filed: 08/28/2019 Page: 9 of 1010 The district court correctly denied Lawson federal habeas relief. The Florida
court s reasonably determined that Lawson failed to establish prejudice. Lawson failed to prove that there was a reasonable probability that the outcome of the plea process would have been different had counsel succeeded in having his charges for lewd and lascivious battery and for elder abuse dismissed. See L afler , 566 U.S. at 16 4. Lawson offered no evidence that he would have received what he deemed an acceptable offer to plead guilty that the trial court would have accepted. IV. CONCLUSION
We AFFIRM the denial of Lawson’s petition for a writ of habeas corpus. Case: 17-14802 Date Filed: 08/28/2019 Page: 10 of 10