FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 27, 2011

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15787

Non-Argument Calendar

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D. C. Docket No. 08-61260-CV-ASG

JACK LIEBMAN,

Petitioner-Appellant,

versus

DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 27, 2011)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:

Petitioner Jack Liebman appeals the district court’s denial of habeas relief
under 28 U.S.C. § 2254.

On March 1, 2000, Liebman pled guilty to various criminal offenses

comprising seven different cases in Broward County Circuit Court. At his

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sentencing hearing on March 30, 2000, Liebman personally requested and was

granted leave to change his pleas from “guilty” to “no contest.” Prior to accepting

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the change, the trial court advised Liebman that the effect of no-contest pleas

would essentially be the same as guilty pleas. Liebman indicated that he

understood as much and that he was “hoping it [would] be the same,” as he did not

want to “inconvenience the Court, or upset anyone.” Following the change, the

trial court sentenced Liebman as a habitual offender to various concurrent terms of

imprisonment, the longest being thirty years.

Following state appellate and post-conviction proceedings, Liebman

challenged his conviction in the Southern District of Florida, claiming, among

other things, that his pleas were involuntary as the result of ineffective assistance

of counsel. According to Liebman, he was under the influence of the psychotropic

antidepressant, Elavil, during his plea proceedings. In particular, Liebman alleged

that counsel knew he was under the influence of a double dose of the drug on the

 Liebman’s pleas were “open” and not pursuant to any plea agreement. 1

 According to Liebman’s brief, Liebman asked his counsel to implement the change. 2

When counsel refused, Liebman addressed the court directly.

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day he changed his plea to no contest, but that counsel neglected to inform the

court. Liebman claims that, had the court been so informed, the outcome of his

proceeding would have been different, in that the court would have rejected his

pleas as involuntary. Following a categorical denial of relief below, we granted

Liebman leave to appeal a single, narrow issue:

Whether the state court made a decision that was contrary

to, or an unreasonable application of, clearly established

federal law or made an unreasonable determination of

fact when it found that counsel was not ineffective for

failing to raise concerns about Liebman’s competency to

be sentenced due to his mental condition prior to and

during the March 30 sentencing hearing and the

increased dosage of his psychotropic medication on the

morning of the sentencing hearing.

Because we decide that Liebman has failed to demonstrate the requisite

prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),

we affirm the district court’s denial of habeas relief.

We begin by noting that, in our order granting Liebman’s Certificate of

Appealability, we specifically rejected Liebman’s contention that the state court

unreasonably determined that his March 1 guilty pleas were voluntary. Those

pleas followed two separate mental competency evaluations, as well as a thorough

plea colloquy. Consequently, in evaluating Liebman’s ineffective-assistance

claim, we limit our determination of whether Liebman can show Strickland

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prejudice to the events that followed his initial guilty plea.

To demonstrate prejudice under Strickland, Liebman must show that “there

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

of the proceeding would have been different.” 466 U.S. at 694, 104 S. Ct. at 2068.

In the context of an ineffective-assistance challenge to the voluntariness of a guilty

or no-contest plea, Liebman must show there is “reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

Particularly in light of his prior, voluntary guilty plea, we believe Liebman can

show no such reasonable probability.

In a summary order, Liebman’s state post-conviction court disposed of his

various claims on the merits “for the reasons stated in the State’s Response” to

Liebman’s petition, triggering the Antiterrorism and Effective Death Penalty Act’s

restrictions on federal habeas relief. See 28 U.S.C. § 2254; see also Harrington v.

Richter, No. 09-587, 2011 WL 148587, at *9 (U.S. Jan. 19, 2011) (concluding that

the summary nature of a state court’s decision does not lessen the deference that it

is due); Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002)

(same). We need not reach any of Liebman’s arguments about performance issues

because, even if we assume, arguendo, that Liebman’s counsel performed

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deficiently by failing to alert the court that his client was under the influence of

medication, Liebman has not made an adequate showing of prejudice to warrant

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further proceedings. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)

(“[A] court need not address the performance prong of [Strickland] if the defendant

cannot meet the prejudice prong, or vice versa.” (internal citation omitted)).

We agree with the district court that the facts do not show Liebman’s

original March 1 guilty plea was constitutionally deficient. Liebman has failed to

explain how he was prejudiced by the events thereafter, except to baldly assert that,

but for counsel’s errors, he would not have pled guilty and instead gone to trial.

Though it is certainly possible that Liebman’s state of mind may have deteriorated

in the interim between his plea colloquy and his sentencing hearing such that

counsel should have intervened when Liebman attempted to change his plea, we

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see little, if anything, in the record to suggest any such deterioration or resulting

 Because Liebman has never been afforded an evidentiary hearing, the record is silent 3

on what his counsel actually knew relating to Liebman’s medication. However, even if

Liebman’s allegations are true, they would not necessarily result in our finding deficient

performance. See Miles v. Stainer, 108 F.3d 1109, 1113 (9th Cir. 1997) (“Assuming arguendo

that [counsel] had reason to doubt his competence on the day of the guilty plea, we are not

willing to say that her failure to bring the matter to the court’s attention—which would

jeopardize the plea bargain, against her client’s wishes—is a transgression that violates

Strickland’s ‘strong presumption’ of reasonable conduct.”).

 A defendant’s mental competency is not static. See Indiana v. Edwards, 554 U.S. 164, 4

175, 128 S. Ct. 2379, 2386 (2008) (“Mental illness itself is not a unitary concept. It varies in

degree. It can vary over time. It interferes with an individual’s functioning at different times in

different ways.”).

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harm. During the sentencing hearing, Liebman himself stated, “I do not wish in

any means [sic] to inconvenience or burden the courts with any trials that I don’t

think I can win with any defense.” In short, Liebman simply fails to make a

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plausible case that, but for his alleged incapacitation and counsel’s errors, he would

have insisted on going to trial. Even assuming the truth of an alteration in his

Elavil consumption, Liebman has illuminated no reasons that his plea calculus

changed or would have changed from the time he voluntarily pled guilty until the

time that he altered that plea to no contest.

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Liebman attempts make his prejudice case by pointing to a portion of the

sentencing hearing transcript where he told the court, “I wish to withdraw my

guilty plea in order to reserve my right to appeal, entering pleas of no contest”

(emphasis added). Since, absent a preservation agreement, no material differences

exist in a defendant’s appellate rights after a no-contest plea versus a guilty plea,

we interpret Liebman’s argument to contend that this confusing statement

 This statement occurred while Liebman was allegedly under the influence of the 5

increased dose of Elavil, so we are loath to give it much weight in evaluating Liebman’s state of

mind. However, it is somewhat probative. 

 Additionally, he has shown no prejudice that might have arisen solely from the fact that 6

his conviction followed from a plea of no contest versus a plea of guilty, and we can think of

none. See United States v. Caraway, 474 F.2d 25, 28 (5th Cir. 1973) (“Under normal

circumstances, a plea of nolo contendere is the legal equivalent of a guilty plea and a waiver of

all nonjurisdictional defects.”), vacated on other grounds, 483 F.2d 215 (5th Cir. 1973) (en banc)

(per curiam).

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demonstrates that, had he been of sound mind, Liebman would have pursued a

course of pleading that would have preserved broader appellate rights: viz., taking

his case to trial. Leaving aside any issues related to the fact that Liebman was not

necessarily entitled to withdraw a constitutionally made guilty plea, we find this

argument unavailing.

Though such a statement might indicate Liebman misunderstood the

consequences of his no-contest plea, such a subjective misunderstanding alone is

not necessarily sufficient to render his plea involuntary. Cf. United States v. Plain,

748 F.2d 620, 622 (11th Cir. 1984) (per curiam). Furthermore, to the extent that

this misunderstanding should have alerted counsel and the court to some possible

cognitive defect in Liebman’s mental process, Liebman has failed to indicate

exactly which appellate issues he wished to preserve such that, had he known his

appellate rights under an open no-contest plea were severely limited, he would

have chosen instead to take his case to trial. In other words, while his statement at

the sentencing hearing might be probative of his attorney’s performance, without

more, it stops short of demonstrating prejudice.

At its core, Strickland is designed to help us identify and reverse judgments

where an attorney’s error has undermined our confidence the case’s outcome. See

466 U.S. at 694, 104 S. Ct. at 2068. Here, we are confident that Liebman’s case

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was properly resolved.

AFFIRMED.

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