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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

ADRIAN MILLS,

Petitioner,

v. CASE NO. 1:11-cv-20-MP-GRJ

SECRETARY, DEPT.

OF CORRECTIONS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 8, Petitioner’s pro se Amended Petition for

a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (hereafter “Petition”) . The

Petition stems from Petitioner’s Alachua County convictions of aggravated assault with

a firearm and possession of a firearm by a convicted felon, for which Petitioner is

serving a total 25-year sentence. Respondent filed a response and an appendix with

relevant portions of the state-court record, and Petitioner filed replies and supplemental

exhibits. Docs. 25, 30, 31, 33. Upon due consideration of the Petition, the Response,

the Replies, and the state-court record, the undersigned recommends that the Petition

be denied. 

1

State-Court Proceedings

The relevant portions of the record may be summarized as follows. Petitioner

was charged with three counts of aggravated assault with a firearm and one count of

possession of a firearm by a convicted felon. The State filed a notice that it would seek

 Because the Court may resolve the Petition on the basis of the record, the 1

Court has determined that an evidentiary hearing is not warranted. See Rule 8, Rules

Governing Habeas Corpus Petitions Under Section 2254.
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an enhanced sentence as a violent career criminal. App. Exh. A (dkt. entry 6/20/05). 

Prior to trial, Petitioner rejected a plea offer from the State for a total ten-year sentence

on all charges. Exh. C at 392-3; Exh. I at 15, 22-23. On the record, Petitioner’s trial

counsel stated that Petitioner had rejected a plea offer and informed counsel that he

wished to go to trial, and that counsel had visited Petitioner the weekend before trial

and discussed with him that the State was seeking enhanced penalties. Exh. C. at 392-

93. 

The aggravated assault charges were bifurcated for jury trial, and Petitioner was

convicted of one count (Count I). Following the jury’s verdict, he pleaded no contest to

the felon-in-possession charge (Count IV). Exh. C at 274, 277. At sentencing, the

parties and the Court discussed that following his previous incarceration Petitioner had

signed a notice acknowledging he could be subject to sentencing as a prison releasee

reoffender for a subsequent offense, including aggravated assault. As a prison

releasee reoffender, Petitioner faced up to 15 years in prison for the aggravated assault

conviction. Further, as a habitual felony offender Petitioner faced a sentence of up to

30 years (twice the 15-year maximum) for the aggravated assault conviction. The

habitual offender notice was filed after the trial in accordance with State law. Exh. C. at

416-62 (sentencing hearing). The trial court determined that based upon Petitioner’s

sentencing scoresheet his aggravated assault conviction qualified him for a ten-year

habitual-offender sentence and a consecutive fifteen-year sentence for the felon-inpossession conviction. The fifteen-year firearm sentence was not subject to any

sentencing enhancements. Exh. C at 460-61. Petitioner’s convictions and sentences

were affirmed per curiam without opinion. App. Exh. G; Mills v. State, 937 So.2d 127
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(Fla. 1st DCA 2006). 

Petitioner filed a postconviction motion pursuant to Fla. R. Crim. P. 3.850,

asserting, inter alia, a claim that his trial counsel rendered ineffective assistance by

failing to advise him that if he rejected the State’s plea offer and was convicted at trial

he faced sentencing as a habitual offender. The state court ordered an evidentiary

hearing on this claim and one additional claim that is not at issue in this case, and

appointed postconviction counsel for Petitioner. The state court summarily denied

Petitioner’s remaining claims. Exh. H at 26. Following the evidentiary hearing, the state

court denied the remainder of Petitioner’s motion. Id. at 214. The First DCA affirmed

per curiam without written opinion. Mills v. State, 25 So.3d 1227 (Fla. 1st DCA 2010). 

Petitioner also unsuccessfully pursued sentencing relief pursuant to Fla. R. Crim. P.

3.800(a). Exh. P.

Petitioner then filed the instant habeas corpus petition, which Respondent

concedes is timely and exhausted. As the sole claim for federal habeas relief,

Petitioner contends that his trial counsel was ineffective for not correctly advising him

that he could be sentenced as a habitual offender for the aggravated assault offense

before he turned down the 10-year plea offer. Petitioner contends that had he been

correctly advised he would have accepted the plea offer. Exh. 8.

Section 2254 Standard of Review for Ineffective Assistance Claims

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) imposes limitations

on the scope of this Court's review. Under 28 U.S.C. § 2254(d)(2), a federal court may

not grant a state prisoner's application for a writ of habeas corpus based on a claim

already adjudicated on the merits in state court unless that adjudication “resulted in a
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decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” Under § 2254(e)(1), “a

determination of a factual issue made by a State court shall be presumed to be correct,”

and the petitioner “shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” “‘[A] state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a different

conclusion in the first instance.’” Burt v. Titlow, ___ U.S. ___, 2013 WL 5904117, *4

(2013)(quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841(2010)).

As to legal findings, a petitioner is entitled to federal habeas relief only if the

state court's adjudication of the merits of the federal claim “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.” § 2254(d)(1); see Burt,

2013 WL 5904117, *4 (standard for reviewing claims of legal error by state courts is

“highly deferential”). This standard “recognizes a foundational principle of our federal

system: State courts are adequate forums for the vindication of federal rights.” Id. 

This highly deferential standard carries special force in habeas cases asserting

ineffective assistance claims: “Especially where a case involves such a common claim

as ineffective assistance of counsel under Strickland —a claim state courts have now 2

adjudicated in countless criminal cases for nearly 30 years—‘there is no intrinsic reason

Strickland v. Washington, 466 U.S. 668, 686 (1984) (holding that to prevail on a 2

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. A court may dispose of the

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

prejudice prong).
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why the fact that a man is a federal judge should make him more competent, or

conscientious, or learned . . . than his neighbor in the state courthouse.’” Id. (quoting

Stone v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct. 3037 (1976). 

In view of the deference afforded to the state courts’ adjudication of

constitutional claims, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court. AEDPA requires ‘a state

prisoner [to] show that the state court's ruling on the claim being presented in federal

court was so lacking in justification that there was an error . . . beyond any possibility for

fairminded disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S. ___, 131 S.Ct.

770, 786–787 (2011). “‘If this standard is difficult to meet’—and it is—‘that is because it

was meant to be.’” Id. (quoting Harrington, 131 S.Ct. at 786). “We will not lightly

conclude that a State's criminal justice system has experienced the ‘extreme

malfunction’ for which federal habeas relief is the remedy.” Id. (quoting Harrington, 131

S.Ct. at 786). 

In Missouri v. Frye, 566 U.S. ___, 132 S.Ct. 1399 (2012), and Lafler v. Cooper,

566 U.S. ___, 132 S.Ct. 1376 (2012), the Supreme Court held that the Sixth

Amendment right to effective assistance of counsel extends to plea negotiations. Frye,

566 U.S. ___, 132 S.Ct. at 1404–08; Lafler, 566 U.S. at ___, 132 S.Ct. at 1384. Thus,

criminal defendants are “entitled to the effective assistance of competent counsel”

during plea negotiations. Lafler, 566 U.S. at ––––, 132 S.Ct. at 1384 (internal quotation

marks omitted). The Court also considered how to apply the prejudice prong of the

ineffective-assistance-of-counsel test set forth in Strickland and concluded that, in order

to show prejudice, a defendant must demonstrate a reasonable probability that: (1) he
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would have accepted a plea offer but for counsel's ineffective assistance; (2) the plea

would have been entered without the prosecution canceling it or the trial court refusing

to accept it; and (3) the plea would have resulted in a lesser charge or a lower

sentence. Frye, 566 U.S. at ___, 132 S.Ct. at 1409; Lafler, 566 U.S. at ___, 132 S.Ct.

at 1384–85.

Discussion

Petitioner’s instant claim, alleging that trial counsel was ineffective for not

correctly advising him that he could be sentenced as a habitual offender for the

aggravated assault offense, and that Petitioner otherwise would have accepted a tenyear plea offer, was asserted as Ground E in his Rule 3.850 postconviction motion. 

See R. Exh. Exh. H at 225. 

At the evidentiary hearing on the Rule 3.850 motion, Petitioner testified that he

was aware that the State had filed a notice of intent to seek career criminal sentencing

enhancements prior to discussing potential sentences with his trial counsel. He testified

that he nevertheless believed he faced a maximum 15-year sentence for all charges

(with concurrent sentences) if he went to trial, and that he concluded he “might as well

go ahead and go to trial” rather than accept a plea offer with a total ten-year sentence. 

R. Exh. I at 12, 15. 

Petitioner’s trial counsel testified telephonically at the hearing. She recalled that

Petitioner was adamant about wanting a jury trial because he felt he had a good factual

case, despite her conversations with him about the possibility of enhanced sentencing

as a violent career criminal, which created greater sentencing exposure than a habitual

felony offender sentence. R. Exh. I at 23. The evidentiary hearing was continued
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because she did not have Petitioner’s case file. At the continuation of the hearing, she

testified that her notes reflected she was aware of Petitioner’s sentencing exposure as

a habitual felony offender and prison releasee reoffender (in addition to the career

criminal enhancement noticed by the State), and “obviously, I would have discussed

that with Mr. Mills,” although she did not recall exact conversations with him. R. Exh. J.

at 10. Her notes also reflected that she “[a]dvised Defendant again of all penalties

possible upon conviction,” and she agreed that would have included advising him of the

possibility of habitual offender sentencing. She testified that her practice in every case

was to advise clients regarding maximum sentencing exposure, and she had no reason

to believe she did not do so in Petitioner’s case, given the serious nature of the

charges. Id. at 10-11.

In rejecting this claim on postconviction review, the state court summarized the

testimony adduced at the evidentiary hearing and held as follows:

Defendant testified that, as he considered a 10-year plea offer, his

attorney advised him that he did not meet the criteria for violent career

criminal sentencing, and that she did not mention any other possible

enhancements. He testified that the State had filed its notice of intent to

seek enhanced penalties at the time of their conversation.

At that hearing, Defendant’s trial attorney, Jenny Devine, testified

telephonically from Seattle that she discussed the possibility of violent

career criminal and [prison releasee reoffender] sentencing with the

Defendant. . . . With the benefit of her personal notes and records, she

testified that she recalled advising Defendant that the prosecutor might

seek habitual felony offender sentencing if he went to trial. She testified

that, in cases where the State filed notices of intent to seek enhanced

penalties, she always – and did in this case – advised clients fully on the

consequences of such enhanced penalty. She also testified that

Defendant was adamant about going to trial. 

Based on the foregoing, the Court finds that Defendant’s counsel

fully and correctly advised him regarding impeachment with his criminal
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history and regarding all enhanced penalty possibilities which had been

noticed by the State. 

Exh. H at 214-16.

The state court rejected Petitioner’s claim on the performance prong of

Strickland without addressing the prejudice prong, as is permissible under the

governing standard. Strickland, 466 U.S. at 686 (court may dispose of the claim if a

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

prong). The state court’s rejection of the claim was premised on crediting counsel’s

testimony at the evidentiary hearing that she informed Petitioner of the potential for

enhanced sentencing over Petitioner’s testimony that she did not. “Determining the

credibility of witnesses is the province and function of state courts, not a federal court

engaging in habeas review. Federal habeas courts have ‘no license to redetermine

credibility of witnesses whose demeanor was observed by the state court, but not by

them.’” Consalvo v. Secretary for Dept. of Corrections, 664 F3d 842, 845 (11 Cir. th

2011) (quoting Marshall v. Lonberger, 459 U.S. 422 (1983)). Questions about the

credibility of a witness is a question of fact, and “the AEDPA affords a presumption of

correctness to a factual determination made by a state court.” Id. It is Petitioner’s

burden to rebut the presumption of correctness by clear and convincing evidence. Burt

v. Titlow, ___ U.S. ___, 2013 WL 5904117, *4.

Petitioner points to his own testimony at the evidentiary hearing as evidence in

support of his claim. See Doc. 31. This evidence is plainly insufficient to rebut the

state court’s factual determination that counsel’s contrary testimony should be credited

over Petitioner’s. On this record, and in view of the deference afforded to the state
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court’s rejection of this ineffective-assistance claim on the merits, Petitioner has failed

to show that he is entitled to federal habeas corpus relief.

Certificate of Appealability

Section 2254 Rule 11(a) provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant,” and if a

certificate is issued “the court must state the specific issue or issues that satisfy the

showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing

Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).

Therefore, the undersigned recommends that the district court deny a certificate of

appealability in its final order.

Rule 11(a) also provides: “Before entering the final order, the court may direct

the parties to submit arguments on whether a certificate should issue.” Thus, if there is

an objection to this recommendation by either party, that party may bring this argument

to the attention of the district judge in the objections permitted to this report and

recommendation.

Accordingly, it is respectfully RECOMMENDED:

That the petition for writ of habeas corpus (Doc. 1) should be DENIED and that a

certificate of appealability should be DENIED.

IN CHAMBERS this 3 day of December 2013. 

rd

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge
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NOTICE TO THE PARTIES

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

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 14 days after being

served with a copy thereof. Failure to file specific objections limits the scope of review of

proposed factual findings and recommendations.