[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 20

- 14700
Non

- Argument Calendar

____________________
BRIAN CARL RICHARDS,
Petitioner

- Appellant,

versus SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents

- Appellees.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:19

- cv

- 02244

- PGB

- LRH

_______________ _____ USCA11 Case: 20-14700 Date Filed: 01/21/2022 Page: 1 of 102 Opinion of the Court 20

- 14700

Before R OSENBAUM , L UCK , and L AGOA , Circuit Judges.
PER CURIAM:
Brian Richards , a state prisoner, appeals the denial of his federal petition for a writ of habeas corpus
, see 28 U.S.C. § 2254, alleging ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668 (1984). After careful review, we affirm.
I. Richards pled nolo contendere in a Florida trial court to a charge of petit theft with two prior conviction s in exchange for the prosecutor ’s recommend ation of a 180

- day ja il sentence. Before accepting his plea , the court warned Richards that if he failed to appear for sentencing
, he would not get the benefit of his bargain with the state and instead would be subject to a potential maximum of five years in prison. Richards said he understood, and the court accepted his plea, but he then failed to appear for sentencing because he was arrested for new offenses stemming from a bank robbery . When sentencing eventually went forward after his conviction in the robbery case
, the trial court imposed a five

- year sentence , emphasizing its prior warnings to Richards and asserting that his “own conduct” resulted in the failure to appear. Richards appealed , arguing that the trial court erred in imposing an enhanced sentence because his absence at sentencing was not willful. The state appellate cour t affirmed , citing Orange v. State , 983 So. 2d 4, 5

– 6 (Fla. Dist

. Ct. App. 2007), for the USCA11 Case: 20-14700 Date Filed: 01/21/2022 Page: 2 of 1020

- 14700 Opinion of the Court 3 proposition that a failure to appear caused by incarceration for new crimes after entering the plea co nstitutes a willful breach of an agreement to appear. Richards then sought postconviction relief under Rule 3.580, Fla. R. Crim. P. , arguing that his counsel rendered ineffective assistance in three ways, two of which are relevant here : first, by failing

t o move to withdraw the plea agreement when the court announced it would not follow that agreement and instead imposed a five

- year sentence; and second, by failing to advise him that he could contest the willfulness of his failure to appear, and to make such an argument to the trial court. 1
A st ate postconviction court rejected these claim s without an evidentiary hearing

. As to the first claim, the court found that counsel had no basis to move to withdraw the plea. According to the court, under Quarterman v. State , 527 So. 2d 1380 (Fla. 1988), there was an express agreement concerning the consequences of failing to appear, so the trial court was permitted to impose an enhanced sentence without providing an opportunity for Richards to withdraw his plea. Therefore, according to the postconviction court, “counsel had no basis to file a motion to withdraw [Richards’s] plea and there is no reasonable probability that such a motion would have been granted.”

1 We granted Richards a certificate of appealability ( “ COA ” ) as to these two claims but denied a COA for his claim that counsel was ineffective for fail ing to request a transport order before the original sentencing. USCA11 Case: 20-14700 Date Filed: 01/21/2022 Page: 3 of 104 Opinion of the Court 20

- 14700
As to the second claim, the state postconviction court found that it lacked merit because Richa rds “ was arrested on new offenses after entering the agreement, which rendered his failure to appear willful.” The court noted that counsel and Richards informed the court of Richards’ s mental

- health issues at sentencing but that two doctors said he did n ot meet the M’Naghten test for insanity , making him criminally responsible for the new crimes. As a result, in the court’s view, there was no reasonable probability that the trial court would have found that Richards’s failure to appear was not willful.

A fter the postconviction court’s order was summarily affirmed on appeal, Richards petitioned a federal district court for a writ of habeas corpus. See 28 U.S.C. § 2254. The district court denied the petition, finding that the state cour t’s decision was re asonable and so entitled to deference. R ichards now appeals.
II. We review the district court’s denial of a state prisoner’s § 2254 petition de novo
, but we review the state habeas court’s decision with deference. Reed v. Sec’y, Fla. Dep’t of Corr. , 593 F.3d 1217, 1239 (11th Cir. 2010); Wright v. Sec’y for Dep’t of Corr. , 278 F.3d 1245, 1254

– 55 (11th Cir. 2002). Whe re the final state court to adjudicate the merits of a petitioner’s claim simply affirms a lower court’s decision without explaining its reasoning, we “look through” to the last reasoned state

- court decision and assume that the unexplained decision adopted that reasoning. Wilson v. Sellers
, 138 S. Ct. 1188, 1192 (2018). Here, we look through the appellate USCA11 Case: 20-14700 Date Filed: 01/21/2022 Page: 4 of 1020

- 14700 Opinion of the Court 5court’s summary affirmance to the state postconviction court’s reasoned order denying Richards’s claims.

A n ineffective

- assistance

- of

- counsel claim requires a showing that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland , 466 U.S. at 687. Prejudice means a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different
, ” which is a “probability sufficient to undermine confidence in the outcome.” Id. at 694. Under 28 U.S.C. § 2254(d), we may grant the writ of habeas corpus only if the state court’s decision “was contrary to, or involved an unreasonable application of” Strickland , or “was basedon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Under these standards, “[a] state court ’ s determination that a claim lacks merit precludes federal habea s 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).
A. We start with Richards’s argument that counsel was ineffective for failing to move to withdraw the plea when the trial court declared it would not be bound by the plea agreement. Florida courts permit what is commonly referred to as a

“

Quarterman agreement,” where a trial court allows a defen dant to be released after the plea hearing, provided he agrees that, if he USCA11 Case: 20-14700 Date Filed: 01/21/2022 Page: 5 of 106 Opinion of the Court 20

- 14700 fails to appear at the sentencing hearing, the court may impose a sentence greater than the one specified in the plea agreement. See, e.g. , Ingram v. State , 291 So. 3d 1009, 1010

– 1 1 (Fla. Dist. Ct. App. 2020). A plea agreement can be modified by the trial court during the plea colloquy if the defendant clearly and unequivocally understands and accepts those terms

. Norman v. State , 43 So. 3d 771, 773 (Fla. Dist. Ct. App. 2010). Bu t “a trial court may not unilaterally impose additional conditions of a plea agreement after it has formally accepted the plea agreement without the acquiescence of the defendant or his counsel. ” Id. Richards relies primarily on Smith v. State , 988 So. 2d 1258 (Fla. Dist. Ct. App. 2008), in which the appellate court held that terms added by the trial court providing for an enhanced sentence for failure to appear “were not part of the plea agreement.” Id. at 1261. The court reasoned that Quarterman did not control because “[t] he trial court accepted Smith ’ s plea before articulating what would occur if Smith failed to appear at sentencing ,” and there was no subsequent agreement to make the terms a condi tion of his plea, despite the defendant ’s saying he understood them. In Richards’s view, his case is like Smith , and so he was entitled to an opportunity to withdraw his plea
, making his counsel ineffective for failing to file a motion to withdraw.

But “ [i] t is a fundamental principle that state courts are thefinal arbiters of state law, and federal habeas courts should not second

- guess them on such matters.” Callahan v. Campbell , 427 F.3d 897, 932 (11th Cir. 2005) (quotation marks omitted) ; see also USCA11 Case: 20-14700 Date Filed: 01/21/2022 Page: 6 of 1020

- 14700 Opinion of the Court 7
Harrington , 562 U.S. at 102

– 02 (stating that federal habeas review is “not a substitute for ordinary error correction through appeal”). In Callahan
, we rejected the appellant’s argument t hat the state court unreasonably applied Strickland because it was dependent onthe conclusion that the state court made an erroneous determination of state of law. 427 F.3d at 931

– 32. W e explained that, where “the state court has told us that if [defend ant’s trial counsel] did make the objection it would not have been successful” under state law, the defendant “cannot be prejudiced by his counsel’s failure to make a losing objection.” Id.
Here, the state court did not unreasonably apply Strickland becau se, as in Callahan, Richards’s argument depends on a conclusion that the state court misinterpreted state law. See id. The state court expressly found that Richards was subject to a valid Quarterman agreement, which is purely a matter of state law. Even if we might have decided the matter differently had it been our call to make, we cannot say the state court’s decision was based on an unreasonable determination of what occurred during the plea hearing. See 28 U.S.C § 2254(d)(2). Richards points to Smith , but that case is factually distinguishable because , in contrast to Smith
, the trial court here expressly articulate d the Quarterman terms before accepting Richards’s guilty plea. See Norman , 43 So. 3d at 773; cf. Smith , 988 So. 2d at 1259

– 61.
B ecause the state court has told us that
, under state law,Richards was not entitled to withdraw his plea despite the enhance d sentence for failing to appear , it cannot be unreasonable to USCA11 Case: 20-14700 Date Filed: 01/21/2022 Page: 7 of 108 Opinion of the Court 20

- 14700

also determine there was no probability of a different result had counsel filed a motion to withdraw. See Callahan
, 427 F.3d at 931

– 32

. B. Nor did the state court unreasonably conclude that Richards could not establish Strickland prejudice based on counsel’s failure to advise him that he could contest the willfulness of his failure to appear, and to make such an argument to the trial court

. Richards asserts that, had counsel properly advised him, he would have presented expert testimony at sentencing that mental illness contributed to his arrest

. The expert’s report stated, among other things, that (1) Richards was sane when he robbed the ba nk, but his mental illness likely was a significant contributor to his actions and should be viewed as a mitigating factor ; (2) he was admitted for psychiatric reasons on several occasions ; and (3) he has bipolar disorder. Under Florida law, “where timely appearance for sentencing is made a condition of a plea agreement, a non

- willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.” Johnson v. State , 501 So. 2d 158,
160

- 61 (Fla. Dist. Ct. App. 19 87). In other words , the violation of a Quarterman agreement must be “ willful ” for the court to impose an enhanced sentence. Ingram , 291 So. 3d at 1011

– 12. A trial court

must offer “ an opportunity to explain why [the defendant] failed to timely appear a t sentencing ” and then make a factual determination as to whether the failure to appear was willful. Lowery v. State , 22 So. 3d 745, 749 (Fla. Dist. Ct. App. 2009). USCA11 Case: 20-14700 Date Filed: 01/21/2022 Page: 8 of 1020

- 14700 Opinion of the Court 9 Generally, Florida courts treat the failure to appear as willful

“ if the defendant was incarcerated because he had committed a new offense after entering into the agreement .” Orange , 983 So. 2d at 5

– 6

. Nevertheless, a defendant’s mental illness may affec t the willfulness determination. See Marcano v. State , 814 So

. 2d 1174, 1176

– 77 (Fla. Dist. Ct. App. 2002) ( “[M]ental illness can render violations of probation not willful and substantial.”). More broadly, Florida utilizes the M’Naghten test, under whic h a defendant is not criminally responsible for his conduct if he can prove he did not know of the nature of consequences of his act or was unable to distinguish right from wrong. Patton v. State , 878 So. 2d 368, 375 (Fla. 2004).
Here, it was not unreas onable for the state postconvictioncourt to determine there was not a reasonable probability that additional expert testimony on Richards’s mental

- health status would have resulted in the state trial court ’s finding that his failure to appear was non

- will ful.At the sentencing hearing, defense counsel addressed Richards’s arrest and mental health, point ing out that a doctor who had performed a psychological evaluation found that Richards suffered from, and had been in intensive treatment for, bipolar dis order at the time that the new offenses occurred. Richards then personally addressed the court regarding his failure to appea r

. As explanation for the new offenses, Richards stated that he had been receiving mental

- health treatment since 1998 but had stopped taking his medication. As a result, he “began hearing voices and hallucinating USCA11 Case: 20-14700 Date Filed: 01/21/2022 Page: 9 of 1010 Opinion of the Court 20

- 14700 and ended up going into the bank with a note and no weapon and asking them for money.” He was evaluated for that criminal case, and two doctors found that he suffered from mental duress but did not meet the M’Naghten test. Richards emphasized that he “had no intentions of any of this ever happening, disrespecting the Court or making this drag on for a year

- and

- a

- half,” and that he ha d “wanted to get this resolved as bad as anybody else.” The record of the sentencing hearing shows, in sum , that Richards received “ an opportunity to explain why [he] failed to timely appear at sentencing

. ” Lowery , 22 So. 3d at 749

. More to the point, th e record shows Richards informed the trial judge that his criminal conduct was not intentional because he was “hearing voices and hallucinating” after he had stopped his medication , even if he did not meet the M’Naghten test

. The expert testimony Richards asserts he would have provided but for counsel’s error

— that he was sane, but that mental illness contributed to his criminal conduct

— is largely cumulative of the information presented at sentencing . On this record, therefore, we cannot say it was unreaso nable to conclude that any deficiency in counsel’s performance on the issue of willfulness did not create a reasonable probability of a different result.

Because , at worst, “ fairminded jurists could disagree on the correctness of the state court’s decisi on , ” Harrington , 562 U.S. at 101 , Richards has not shown he is entitled to federal habeas relief under § 2254(d). We therefore affirm the denial of his petition.
AFFIRMED. USCA11 Case: 20-14700 Date Filed: 01/21/2022 Page: 10 of 10