Stephen Brewster v. Secretary, Florida Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11058
Non-Argument Calendar
____________________
STEPHEN BREWSTER,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA 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. 8:15-cv-00448-WFJ-TGW
____________________
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2 Opinion of the Court 21-11058
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and
BRANCH, Circuit Judges.
PER CURIAM:
Stephen Brewster, a Florida prisoner, appeals
pro se the de-
nial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. We
granted Brewster a certificate of appealability to address whether
appellate counsel was ineffective for not arguing that the trial court
erred when it failed to renew an offer to appoint counsel for Brew-
ster after he twice waived that right in his probation revocation
hearing. Because it was not an unreasonable application of clearly
established federal law for the state postconviction court to reject
Brewster’s claim, we affirm.
I. BACKGROUND
In 2009, Brewster pleaded guilty in 12 cases to 17 crimes,
including credit card fraud, uttering a forged instrument, forgery,
and burglary of a vehicle. A Florida court sentenced Brewster to
11 consecutive terms of 33 months of imprisonment followed by
27 months of probation in his 11 felony cases and to six months of
probation for criminal mischief. Brewster did not appeal.
After Brewster completed his prison sentence, he commit-
ted a new offense, and the state petitioned to revoke his proba-
tion. The petition mentioned all 12 of Brewster’s cases, but the
supporting affidavit mentioned only 9 cases.
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21-11058 Opinion of the Court 3
The trial court appointed counsel for Brewster. Brewster
moved to dismiss his attorneys as ineffective, but the trial court
denied the motion.
Brewster’s revocation hearing lasted two days. At its com-
mencement, Brewster moved to proceed
pro se, and he was ap-
prised of the advantages of having counsel and the risks of self-
representation.
See Faretta v. California, 422 U.S. 806, 835 (1975).
The trial court twice warned Brewster not to waive his
right to counsel because his attorney had superior expertise and
Brewster faced a maximum sentence of 85 years of imprisonment.
Brewster stated that he was not “being stubborn” and was “doing
this because [he had] reasons . . . to defend [his] own case.” The
trial court informed Brewster that he could change his mind and,
if he “want[ed] an attorney to be re-appointed, [it] would allow
[him] to do that,” but “if [it were to] find that [he] violated [his]
probation and [imposed] sentence . . ., [he] would not be able in
the future to say, well I change my mind, I should have had an at-
torney after all.” When asked whether, “despite knowing what
the dire and severe consequences are, [he] still wish[ed] to waive
[his] right to an attorney,” Brewster responded, “Yes.” The trial
court recessed for lunch and, after the break, Brewster reaffirmed
his desire to proceed
pro se and “decline[d]” an “offer [for] the as-
sistance of the public defender’s office.”
The prosecutor presented evidence that Brewster commit-
ted a new offense while on probation. Brewster rested his case im-
mediately and argued that revocation was unwarranted because
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4 Opinion of the Court 21-11058
the evidence was “hearsay and circumstantial.” The trial court
ruled that Brewster had violated his probation. But because of the
“late hour” and the need to allow members of Brewster’s family
to testify, the trial court set sentencing for the next day.
When the hearing resumed the next afternoon, the prose-
cutor remarked that Brewster was representing himself and had
declined an offer to “resolve . . . the substantive case . . . [of] auto
burglary.” The trial court clarified that it “had the
Faretta hearing
with Mr. Brewster yesterday on the violation of probation cases
only” and “he still has counsel on the new charge.” Brewster in-
terjected, “I dismissed counsel completely,” but the trial court
clarified that it did not consider his “motion [to proceed
pro se]
[]as directed to the new case, . . . just . . . with the violations of
probation . . . .” After Brewster said “No,” the trial court re-
sponded that it would address counsel for his new charge later.
Brewster discussed his score sheet with the prosecutor and then
said, “just for . . . understanding, I’m probably going to have rep-
resentation later on” “[f]or the new case.”
The trial court confirmed that it was revoking probation in
nine instead of 12 cases. The prosecutor inquired whether Brew-
ster, who was “obviously representing himself at this point” “un-
derst[ood] what the judge [was] saying.” The trial court offered to
“resolve [the three additional cases] today as well” because Brew-
ster had “very recently . . . in one of the [three] cases . . . filed a
motion for Nelson hearing/Faretta hearing,” but the trial court
did not resolve the three additional cases.
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21-11058 Opinion of the Court 5
Brewster asserted that a discrepancy existed in the evidence
identifying him as the burglar, and the trial court allowed Brew-
ster to reopen his case and introduce his evidence. Brewster con-
tested revocation of the probation on the ground that he was “un-
der an illegal sentence” due to “records . . . be[ing] falsified.” The
trial court considered Brewster’s evidence and ruled that its “deci-
sion regarding the state having proven the allegations ha[d] not
changed” and Brewster was “in violation of . . . probation as indi-
cated yesterday.”
Brewster stated he had no objection to the calculation of
his sentence, and the prosecutor requested a maximum sentence
of 60 months of imprisonment with 27 months left to serve after
crediting the 33 months Brewster had already served. The prose-
cutor recounted that Brewer had “over 50 felony convictions” and
“20 or 30 misdemeanors” for which he had “been to prison al-
ready five times,” that “less than one year” after being “released
from prison on March 19, 2011, . . . he picked up this new bur-
glary of a car case,” and he had several “county jail sentences.”
The prosecutor also recounted Brewster’s “numerous opportuni-
ties at treatment,” including “negative discharge[s]” after several
months of treatment in 2000, in 2004, and in 2006 when he “tested
positive for cocaine,” “missed his groups,” and refused to “take
the drug test.” The trial court revoked Brewster’s probation and
sentenced him to eight consecutive terms of 60 months of impris-
onment for his felony offenses and to time served for his misde-
meanor offense.
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6 Opinion of the Court 21-11058
On appeal, Brewster’s appointed counsel argued that there
were no issues of merit and moved to withdraw.
See Anders v.
California, 386 U.S. 738 (1967). Brewster filed a
pro se brief and
challenged the sufficiency of the evidence. The state appellate
court affirmed summarily.
Brewster v. State, 155 So. 3d 345 (Fla.
Dist. Ct. App. 2014).
Brewster petitioned for state postconviction relief based on
ineffective assistance of appellate counsel. Fla. R. App. P. 9.100,
9.141(d). He argued that counsel overlooked the failure of the
trial court to renew an offer to appoint counsel on the second day
of his revocation hearing.
See Fed. R. Crim. P. 3.111(d)(5). The
state responded that Brewster asked to represent himself and
stated, after being reminded of his right to counsel on the second
day of the hearing, that he desired counsel only for his new
charge. The state court summarily denied Brewster’s petition.
Brewster v. State, 208 So.3d 706 (Fla. Dist. Ct. App. 2015).
Brewster petitioned for a federal writ of habeas corpus and
repeated his claim of ineffective assistance of appellate counsel. 28
U.S.C. § 2254. The district court denied the petition. The district
court ruled that no reasonable probability existed that appellate
counsel would have prevailed on an argument that a renewed of-
fer to appoint counsel was required in Brewster’s case.
II. STANDARD OF REVIEW
A petition for a writ of habeas corpus challenging the effec-
tiveness of appellate counsel presents a mixed question of law and
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21-11058 Opinion of the Court 7
fact that we review
de novo.
Tuomi v. Sec’y, Fla. Dep’t of Corr.,
980 F.3d 787, 794 (11th Cir. 2020),
cert. denied sub nom. Tuomi v.
Inch, 141 S. Ct. 1721 (2021). “A state court’s determination that a
claim lacks merit precludes federal habeas relief so long as ‘fair-
minded 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)). Even a
summary, unexplained rejection of a constitutional issue on the
merits constitutes an adjudication that is entitled to deference.
Richter, 562 U.S. at 98–99. For a petitioner to obtain habeas relief
when a state court applies clearly established law, its decision
must “be more than incorrect or erroneous”—it must be “objec-
tively unreasonable.”
Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
III. DISCUSSION
A claim of ineffective assistance of appellate counsel is gov-
erned by the standard established in
Strickland v. Washington,
466 U.S. 668 (1984).
Tuomi, 980 F.3d at 795. Under
Strickland,
“the standard for judging counsel’s performance is a most defer-
ential one” that focuses on “whether [counsel’s] representation
amounted to incompetence under prevailing professional norms,
not whether it deviated from best practices or most common cus-
tom.”
Premo v. Moore, 562 U.S. 115, 122 (2011) (quoting
Richter,
562 U.S. at 105). “The standards created by
Strickland and
§ 2254(d) are both highly deferential, and when the two apply in
tandem, review is doubly so.”
Richter, 562 U.S. at 105. “[T]he
question is not whether counsel’s actions were reasonable”;
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8 Opinion of the Court 21-11058
instead, “[t]he question is whether there is any reasonable argu-
ment that counsel satisfied
Strickland’s deferential standard.”
Id.
For Brewster to prevail, he must prove that his appellate
counsel’s performance was deficient and that he was prejudiced
by the deficient performance.
Strickland, 466 U.S. at 687. Coun-
sel’s performance is deficient only if it falls “below an objective
standard of reasonableness.”
Id. at 688. “In considering the reason-
ableness of an attorney’s decision not to raise a particular claim
[on appeal], we must consider ‘all the circumstances, applying a
heavy measure of deference to counsel’s judgments.’”
Eagle v. Li-
nahan, 279 F.3d 926, 940 (11th Cir. 2001) (quoting
Strickland, 466
U.S. at 691). A defendant is prejudiced if counsel fails to make an
argument that has “a reasonable probability of success on appeal.”
Tuomi, 980 F.3d at 795.
An indigent defendant is entitled to the appointment of
counsel “at every stage of a criminal proceeding where substantial
rights of a criminal accused may be affected.”
Mempa v. Rhay,
389 U.S. 128, 134 (1967). In addition, Florida requires that, “[i]f a
waiver [of counsel] is accepted at any stage of the proceedings,
the offer of assistance of counsel shall be renewed by the court at
each subsequent stage of the proceedings at which the defendant
appears without counsel.” Fla. R. Crim. P. 3.111(d)(5). That “rule
does not require a renewed offer of counsel each time the defend-
ant appears in court; rather, a court must renew the offer of coun-
sel at ‘critical’ stages of the proceedings,”
Woodbury v. State, 320
So. 3d 631, 650 (Fla. 2021),
cert. denied sub nom. Woodbury v.
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21-11058 Opinion of the Court 9
Fla., No. 21-6393 (U.S. Feb. 22, 2022), like sentencing,
Daughtrey
v. State, 823 So. 2d 857, 858 (Fla. Dist. Ct. App. 2002). Despite
these protections, a defendant can forego legal representation by
asserting his right to self-representation and then knowingly, vol-
untarily, and intelligently waiving his right to counsel.
Faretta,
422 U.S. at 835.
The state postconviction court could have reasonably de-
termined that appellate counsel reasoned that the trial court was
not required to renew its offer of appointed counsel to Brewster.
Rule 3.111(d)(5) does not require the trial court “to offer counsel
to the defendant each time he appears in court . . . .”
Knight v.
State, 770 So. 2d 663, 669–70 n.6 (Fla. 2000). Appellate counsel
could have reasoned that the second day of Brewster’s revocation
hearing, in which he was allowed to reopen his case and intro-
duce additional evidence, was a continuation of the evidentiary
stage of the proceeding. And as Brewster had waived his right to
counsel twice already, there was no need to renew an offer of le-
gal assistance because “[w]here the right to counsel has been
properly waived, the State may proceed with the stage in issue.”
Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992). Appellate counsel
also could reasonably deduce from Brewster’s statements that he
intended to continue to represent himself. After the parties dis-
cussed Brewster’s right to counsel, he insisted that he had “dis-
missed counsel completely” and wanted legal assistance only
“later on” “for [his] new case.”
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10 Opinion of the Court 21-11058
Brewster argues that appellate counsel was ineffective in
overlooking that the revocation of probation in nine instead of 12
cases was a “substantial change in circumstances” that required
the trial court to “reassess its
Faretta hearing decision.” But we
will not address Brewster’s argument because it is outside the
scope of the certificate of appealability.
See Spencer v. Sec’y,
Dep’t of Corr., 609 F.3d 1170, 1180 (11th Cir. 2010). Florida treats
a defendant’s request for self-representation and a renewal of the
offer for appointed counsel differently and requires a
Faretta in-
quiry for the former, but not the latter.
Noetzel v. State, 328 So.
3d 933 (Fla. 2021). The certificate we issued is limited to the fail-
ure to renew an offer to appoint counsel.
The district court did not err by denying Brewster’s peti-
tion for a writ of habeas corpus. The state postconviction court
reasonably could have determined that appellate counsel’s choice
not to raise a “nonmeritorious claim . . . [did] not constitute inef-
fective assistance of counsel.”
See Diaz v. Sec’y for the Dep’t of
Corr., 402 F.3d 1136, 1145 (11th Cir. 2005). That determination of
the state court, even if “incorrect or erroneous,” is not “objec-
tively unreasonable.”
See Lockyer, 538 U.S. at 75.
IV. CONCLUSION
We AFFIRM the denial of Brewster’s petition for a writ of
habeas corpus.
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