3:24-cv-00451•JOHNSON v. DIXON
Testo completo
Page 1 of 34 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION KEILON JOHNSON, Petitioner, v. Case No. 3:24-cv-451-LC-MJF RICKY D. DIXON, Respondent. _______________________________/ REPORT AND RECOMMENDATION Keilon Johnson, proceeding pro se, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. Respondent (“the State”) answered and provided relevant portions of the state-court record. Doc. 20. Johnson replied. Doc. 26. The undersigned concludes that no evidentiary hearing is required, and that Johnson is not entitled to habeas relief. B ACKGROUND AND P ROCEDURAL H ISTORY On May 8, 2019, Johnson pled nolo contendere to the following charges in the Okaloosa County Circuit Court: ● Attempted armed kidnapping with a weapon with intent to commit a felony (Count 1, Case No. 2017-CF-3125, which carried a maximum possible sentence of 30 years of imprisonment); Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 1 of 34
Page 2 of 34 ● Attempted home-invasion robbery with a firearm (Count 2, Case No. 2017-CF-3125, which carried a mandatory minimum term of imprisonment of 10 years under Florida’s “10-20-Life” statute, Fla. Stat. § 775.087(2)(a)1., and a maximum possible sentence of 15 years of imprisonment); and ● Aggravated battery with great bodily harm (Case No. 2017- CF-3398, which carried a maximum possible sentence of 15 years of imprisonment). See Doc. 20-5 (Plea Agreement, Case No. 2017-CF-3125); Doc. 20-6 (Plea Agreement, Case No. 2017-CF-3398); Doc. 20-7 (Plea Hr’g Tr.). Johnson’s nolo contendere plea was an open plea “to the court,” meaning that there was no agreement as to sentence (except that the sentences in the two cases would run concurrently), thereby leaving the sentence determination for the state trial court. Id. The trial court conducted a plea colloquy, determined that Johnson’s nolo contendere plea was entered freely, voluntarily and knowingly, and accepted the plea. Doc. 20-7. Before sentencing, Johnson moved to withdraw his plea, but then withdrew that motion. Doc. 20-23 at 19–30 in ECF. On January 23, 2020, the trial court held a sentencing hearing and sentenced Johnson to 15 years of imprisonment (with a 10-year mandatory minimum) for the attempted home-invasion robbery with a Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 2 of 34
Page 3 of 34 firearm (Count 2, Case No. 2017-CF-3125) followed by a consecutive term of 10 years of probation for the attempted armed kidnapping (Count 1, Case No. 2017-CF-3215). The trial court sentenced Johnson to 15 years of imprisonment for the aggravated battery (Case No. 2017-CF-3398), concurrent with the 15-year sentence on Count 2 in Case No. 2017-CF- 3125. See Doc. 20-8 (Sentencing Hr’g Tr.); Doc. 20-9 (J. & Sentence). Judgment was entered on February 7, 2020. Doc. 20-9. Johnson filed a direct appeal in one case (Case No. 2017-CF-3398), but then voluntarily dismissed the appeal. Doc. 20-11. On December 21, 2020, Johnson filed a pro se motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Doc. 20-12. The state circuit court denied relief. Doc. 20-13. The Florida First District Court of Appeal (“First DCA”) per curiam affirmed without written opinion. Johnson v. State, 332 So. 3d 461 (Fla. 1st DCA 2022) (Table) (copy at Doc. 20-17). The mandate issued February 17, 2022. On February 14, 2022, Johnson filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Doc. 20-18. On March 23, 2022, the state circuit court dismissed the motion as facially insufficient with leave to amend. Doc. 20-19. Johnson Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 3 of 34
Page 4 of 34 filed an amended motion. Doc. 20-20. On June 8, 2022, the state circuit court dismissed the amended motion as facially insufficient with leave to amend. Doc. 20-21. Johnson chose not to amend and instead filed a motion for entry of a final order disposing of the amended Rule 3.850 motion. Doc. 20-22. On October 17, 2022, the state circuit court entered a final order denying Johnson’s amended motion on the merits, but sua sponte directed the clerk of court to correct Johnson’s jail credit and other scrivener’s errors in the judgment. Doc. 20-23 (Order); Doc. 20-10 (Am. J. & Sentence). The First DCA per curiam affirmed without written opinion. Johnson v. State, No. 1D2022-3902, 381 So. 3d 521 (Fla. 1st DCA 2024) (Table). The mandate issued March 21, 2024. Doc. 20-24 (First DCA docket sheet). At some point, Johnson filed in the First DCA a pro se petition for writ of habeas corpus which was dismissed on June 25, 2025. See Johnson v. State, No. 1D2024-2603, 413 So. 3d 1026 (Fla. 1st DCA 2025) (Mem.) (citing Baker v. State, 878 So. 2d 1236 (Fla. 2004)). Johnson filed his federal habeas petition on August 21, 2024. Doc. 1. The petition raises four grounds for relief. The State asserts that Johnson is not entitled to relief on any claim for one or more of these Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 4 of 34
Page 5 of 34 reasons: (1) the claim is procedurally defaulted; (2) the claim lacks merit; (3) the claim presents a purely state-law issue; (4) Johnson fails to satisfy § 2254(d)’s demanding standard. Doc. 20. RELEVANT LEGAL STANDARDS A. The Federal Habeas Exhaustion Requirement “To respect our system of dual sovereignty, the availability of habeas relief is narrowly circumscribed.” Shinn v. Ramirez, 596 U.S. 366, 375 (2022) (citations omitted). One such constraint is the exhaustion requirement and corollary principle of procedural default. See 28 U.S.C. § 2254(b); Shinn, 596 U.S. at 375-79. Section 2254 “requires state prisoners to ‘exhaust the remedies available in the courts of the State’ before seeking federal habeas relief.” Shinn, 596 U.S. at 377 (alteration adopted) (quoting 28 U.S.C. § 2254(b)(1)(A)). “To satisfy the exhaustion requirement, the petitioner must have fairly presented the substance of his federal claim” to the state’s highest court, either on direct appeal or on collateral review. Picard v. Connor, 404 U.S. 270, 277–78 (1971); Castille v. Peoples, 489 U.S. 346, 351 (1989). Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 5 of 34
Page 6 of 34 A petitioner “fairly” presents the substance of his federal claim to the state courts when he describes the claim “such that the reasonable reader would understand each claim’s particular legal basis and specific factual foundation.” Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1135 (11th Cir. 2022) (quoting Kelley v. Sec’y Dep’t of Corr., 377 F.3d 1317, 1344–45 (11th Cir. 2004)). When a petitioner fails to exhaust his federal claim and the state court remedy no longer is available, that failure to exhaust is a procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 839–40 (1999); see also Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999) (when a petitioner fails to properly exhaust a federal claim in state court, and it is obvious that the unexhausted claim now would be procedurally barred under state law, the claim is procedurally defaulted). Together, exhaustion and procedural default promote federal-state comity. Exhaustion affords States an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights, and procedural default protects against the significant harm to the States that results from the failure of federal courts to respect state procedural rules. Ultimately, it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without giving an opportunity to the state courts to correct a constitutional violation, and to do so consistent with their own procedures. Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 6 of 34
Page 7 of 34 Shinn, 596 U.S. at 378–79 (internal quotation marks and citations omitted, alteration adopted). A petitioner seeking to overcome a procedural default must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[ ] will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1352–53 (11th Cir. 2012). A petitioner establishes “cause” by showing that an objective factor external to the defense impeded an effort to properly raise the claim in the state court. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). A petitioner establishes “prejudice” by showing at least a reasonable probability that the proceeding’s result would have been different. Id. at 892. To satisfy the miscarriage of justice exception, the petitioner must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 7 of 34
Page 8 of 34 convicted him.” Schlup, 513 U.S. at 327. The Schlup standard is very difficult to meet: a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that that was not presented at trial. Schlup, 513 U.S. at 327. B. Section 2254 Standard of Review A federal court “shall not” grant a habeas corpus petition on any claim that was adjudicated on the merits in state court unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).1 Justice O’Connor described the appropriate test: 1 Unless otherwise noted, references to Supreme Court’s Williams case are to the majority holding, written by Justice Stevens for the Court (joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in parts I, III, and IV of the opinion (529 U.S. at 367–75, 390–99); and Justice O’Connor for the Court (joined by Justices Rehnquist, Kennedy, Thomas, and—except as to the footnote—Scalia) in part II (529 U.S. at 403–13). Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 8 of 34
Page 9 of 34 Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. 529 U.S. at 412-13 (O’Connor, J., concurring). In applying the “unreasonable application” clause, the federal court defers to the state court’s reasoning unless the state court’s application of the governing legal principle was “objectively unreasonable” in light of the record before the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542 U.S. 649, 652 (2004). Section 2254(d) also allows habeas relief for a claim adjudicated on the merits in state court where that adjudication “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.” 28 U.S.C. § 2254(d)(2). As with the “unreasonable application” clause of § 2254(d)(1), the federal court applies an objective test. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 9 of 34
Page 10 of 34 “The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). AEDPA also requires federal courts to “presume the correctness of state courts’ factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.’” Landrigan, 550 U.S. at 473–74 (quoting 28 U.S.C. § 2254(e)(1)). A federal court may conduct an independent review of the merits of a petitioner’s claim only if it first finds that the petitioner satisfied § 2254(d). See Panetti v. Quarterman, 551 U.S. 930, 954 (2007). Even then, however, the writ will not issue unless the petitioner shows that he is in custody “in violation of the Constitution or laws and treaties of the United States.” 28 U.S.C. § 2254(a). D ISCUSSION Ground One “Conviction obtained by plea of guilty that was unlawfully induced by the state and my lawyer” Doc. 1 at 8. Johnson alleges that his nolo contendere plea is invalid because the prosecutor and defense counsel told Johnson “that the 10-20-Life statute Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 10 of 34
Page 11 of 34 would apply only if [Johnson] tried to take the cases to trial.” Doc. 1 at 8. Johnson elaborates: It was explained to me that the charging information had to include any and all possible aspects of my charges regardless of whether or not I admitted any of it, and that when I plead guilty then everything could be straightened out before sentencing. I was and still am ignorant of the law. I did not know that the state could pick out what they wanted to convict me of, and sentence me for that after the judge had accepted my nolo contendere plea, I only knew what was explained to me. No one read the charges to me at my plea hearing or explained what would be changed after my pleading. Doc. 1 at 8. Johnson alleges that he presented this claim to the state courts in his original Rule 3.850 motion which the state circuit court dismissed without prejudice on March 23, 2022. Id. at 9. Johnson indicates that he did not pursue the claim further. Id. at 9. The State asserts that Johnson is not entitled to habeas relief because: (1) Johnson’s claim does not allege a violation of a constitutional right; (2) Johnson procedurally defaulted this claim. Doc. 20 at 21–24. The undersigned liberally construes Johnson’s allegations as claiming that his plea was involuntary and unknowing, in violation of due process. See Boykin v. Alabama, 395 U.S. 238, 243–44 (1969). Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 11 of 34
Page 12 of 34 A. Johnson Procedurally Defaulted Ground One Johnson raised the same claim, verbatim, as “Ground 1” of his original Rule 3.850 motion. Doc. 20-18 at 5. The state circuit court dismissed that motion without prejudice, with leave to amend. Doc. 20- 19. The state court explicitly advised Johnson that any amended motion “must include all the claims he wishes the Court to consider.” Id. at 1. Johnson filed an amended Rule 3.850 motion wherein he removed this claim that the prosecutor and defense counsel “induced” him to plead nolo contendere by misrepresenting the applicability of the 10-20-Life statute. Doc. 20-20. By removing the claim, Johnson abandoned it and the state courts did not address it. See Watson v. State, 247 So. 3d 685, 687 (Fla. 1st DCA 2018) (amended Rule 3.850 motion “effectively abandoned any claims it failed to raise” that had been asserted in original motion); Rincon v. State, 996 So. 2d 922, 923 (Fla. 4th DCA 2008) (amended Rule 3.850 motion abandoned original motion); Rolling v. State, 825 So.2d 293, 295 n. 1 (Fla.2002) (amended Rule 3.850 motion raising two claims abandoned an additional twenty-nine claims that were raised in summary fashion in original motion). Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 12 of 34
Page 13 of 34 Because Johnson failed to give the state courts “one full opportunity to resolve” the claim in Ground One of his habeas petition, this claim is unexhausted. Johnson now is procedurally barred from returning to the state courts to present this claim, so Ground One is procedurally defaulted. See Fla. R. Crim. P. 3.850(b), (c), (h); see also e.g., Boerckel, 526 U.S. at 848 (petitioner’s filing of discretionary review petition but leaving out three issues he later included in federal habeas petition rendered the issues unexhausted and procedurally defaulted); Coleman, 501 U.S. at 735 n.1; Sims v. Singletary, 155 F.3d 1297, 1311 (11th Cir. 1998) (“Sims abandoned the photograph component of this claim on appeal of the denial of his motion for post-conviction relief. Therefore, this portion of the argument is procedurally barred for federal habeas purposes.”). Johnson has not made any of the requisite showings to excuse his procedural default. Johnson’s procedural default bars federal habeas review of Ground One. Ground Two “Denial of effective assistance of counsel due to the cumulative errors of trial counsel, Mr. Time [sic] Shaw” Doc. 1 at 10. Johnson alleges that the cumulative effect of these errors by trial counsel deprived Johnson of effective assistance of counsel: Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 13 of 34
Page 14 of 34 ● Counsel refused to file a motion for a bond hearing; ● Counsel failed to visit Johnson at the jail to discuss “the necessary aspects of going to trial” and instead discussed only a plea agreement; ● Counsel failed to inform Johnson that abandonment was a viable defense to the attempted armed kidnapping charge; ● Counsel failed to file a motion to dismiss the attempted armed kidnapping charge “for lack of evidence for any factual basis [to] support the charge”; ● Counsel “induced” Johnson to plead nolo contendere to charges “unsupported by factual basis or any tangible evidence”; and ● Counsel failed to request that the trial court “follow the precepts of Florida Rules of Criminal Procedure 3.170(k) and 3.172(a), (c)(1) (3) and (c10d and e)” during the plea colloquy. Doc. 1 at 10–12. Johnson alleges that he presented this claim to the state courts in his amended Rule 3.850 motion which the state circuit court dismissed on June 8, 2022, and the First DCA affirmed. Id. at 12–13. The State asserts that Johnson is not entitled to relief because: (1) Johnson procedurally defaulted a cumulative-error claim insofar as his amended Rule 3.850 motion presented only individual errors of counsel; and (2) the state court’s denial of relief on the individual allegations of ineffective assistance was neither contrary to, nor an unreasonable application of, clearly established federal law. Doc. 20 at 25–30. Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 14 of 34
Page 15 of 34 A. Johnson Exhausted Ground Two Johnson presented this same claim to the state courts as “Ground 2” of his amended Rule 3.850 motion. Doc. 20-20 at 10–12. Johnson identified not only the individual instances of trial-counsel error, but also argued that the cumulative effect of those errors deprived Johnson of his right to effective assistance of counsel. B. The State Court’s Decision The state circuit court summarily denied relief as follows: In Ground 2 of the instant motion, Defendant claims that trial counsel in case number 2017-CF-3125 was ineffective for failing to file a motion for bond hearing, failing to visit him in the jail to discuss his case, failing to inform him of the defense of abandonment for the attempted armed kidnapping charge, failing to file a motion to dismiss, inducing him to plea to charges unsupported by a factual basis or any tangible evidence, and failing to request that the Court follow the precepts of Florida Rule of Criminal Procedure 3.170. The Court finds that these claims should be denied. During the plea colloquy, Defendant advised the Court that he understood that he was pleading to the two-count information as orally amended by the State, no one was forcing him to enter the plea, he understood he was waiving his right to a jury trial, and he was satisfied with what trial counsel had done to help him in the case.FN8 By entering the plea, he waived his right to have trial counsel file pretrial motions, investigate, present evidence, and develop or put forth defenses. He may not now attack trial counsel’s effectiveness for not doing those things. See Clift v. State, 43 So. 3d 778, 779-80 (Fla. 1st DCA 2010) (“By entering a plea to Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 15 of 34
Page 16 of 34 the charges, Appellant waived his right to have counsel investigate or put forward a defense, including filing motions to suppress. Where a defendant enters a plea and swears that he is satisfied with his counsel’s advice, he may not later attack counsel’s effectiveness for failure to investigate or defend the charge.”) (citation omitted). FN8 Exhibit B, Plea Hearing Transcript, pp. 3–4. Additionally, before entering the plea, Defendant signed a written plea and sentencing agreement. The agreement listed the specific charges and the rights that Defendant was giving up by entering a plea. The agreement also provided that “[t]he arrest report or offense report or probable cause affidavit which is a part of the court record filed with the clerk is hereby incorporated by reference and agreed to by the defendant as a factual basis for the plea.”FN9 FN9 Exhibit C, Plea and Sentencing Agreement. Furthermore, Defendant raised similar claims in this motion to withdraw plea,FN10 which he withdrew before sentencing.FN11 FN10 Exhibit D, Motion to Withdraw Plea. FN11 Exhibit E, Hearing Transcript, p. 4. Doc. 20-23 at 3–4 (alteration in original). The First DCA affirmed without explanation. The First DCA’s summary affirmance is an “adjudication on the merits” of Johnson’s claim and, therefore, is reviewed under § 2254(d)’s deferential standard. See Harrington v. Richter, 562 U.S. 86, 99 (2011). Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 16 of 34
Page 17 of 34 Because the First DCA’s decision is unexplained, this court presumes that the First DCA rejected Johnson’s claim for the reasons provided by the state circuit court. See Wilson v. Sellers, 584 U.S. 122, 125 (2018). C. Clearly Established Federal Law In determining the validity of a plea to a criminal charge, a plea of nolo contendere stands on equal footing with a guilty plea. North Carolina v. Alford, 400 U.S. 25, 35–36 (1970); Hudson v. United States, 272 U.S. 451 (1926); see also Florida v. Royer, 460 U.S. 491, 495 n.5 (1983) (“Under Florida law, a plea of nolo contendere is equivalent to a plea of guilty.”). “A reviewing federal court may set aside a state court guilty plea only for failure to satisfy due process.” Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir. 1991) (en banc) (citing Boykin, 395 U.S. at 243–44). The Due Process Clause requires that a guilty plea be entered knowingly and voluntarily. Boykin, 395 U.S. at 243 n.5; see also Bousley v. United States, 523 U.S. 614, 618 (1998). The assistance of counsel received by a defendant is relevant to the question of whether a defendant's guilty plea was knowing and intelligent insofar as it affects the defendant's knowledge and understanding. See McMann v. Richardson, 397 U.S. 759, 769–72 (1970). Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 17 of 34
Page 18 of 34 “Once a plea of guilty has been entered, nonjurisdictional challenges to the conviction’s constitutionality are waived, and only an attack on the voluntary and knowing nature of the plea can be sustained.” Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir. 1983); Lefkowitz v. Newsome, 420 U.S. 283, 288 (1975) (“[T]he general rule is that a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to the pretrial proceedings.”). This waiver includes claims of ineffective assistance of counsel “except insofar as the ineffectiveness is alleged to have rendered the guilty plea involuntary.” United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); see also Bullard v. Warden, Jenkins Corr. Ctr., 610 F. App’x 821, 824 (11th Cir. 2015) (the waiver rule “includes any claim of ineffective assistance of counsel unless the deficient performance relates to the voluntariness of the plea itself”) (citing McMillin v. Beto, 447 F.2d 453, 454 (5th Cir. 1971) and Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983)). The Supreme Court explained in Tollett v. Henderson, 411 U.S. 258 (1973): [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 18 of 34
Page 19 of 34 defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann. Id. at 267. Recognizing that a prisoner often “has everything to gain and nothing to lose from filing a collateral attack upon his guilty plea,” courts accord great deference to a defendant’s statements during a plea colloquy and are reluctant to allow a defendant to go behind his own sworn testimony. Blackledge v. Allison, 431 U.S. 63, 71 (1977). [T]he representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible. Id. at 73–74 (citations omitted). When a petitioner challenges the voluntariness of his plea based on allegations of ineffective assistance of counsel, the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), applies. Hill Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 19 of 34
Page 20 of 34 v. Lockhart, 474 U.S. 52, 58 (1985). To obtain relief under Strickland, a petitioner must establish that: (1) “counsel's representation fell below an objective standard of reasonableness,” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. To meet Strickland’s prejudice prong in a plea situation, petitioner must establish that “counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59. “It is not enough for [petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. Petitioner must demonstrate a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 58–59. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. D. Johnson Is Not Entitled to Habeas Relief The state court determined that Johnson waived some of his ineffective-assistance claims by entering the nolo contendere plea, and that other claims were conclusively refuted by the record. Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 20 of 34
Page 21 of 34 1. Counsel’s Failure to File Pretrial Motions and Develop a Trial Strategy The state court reasonably applied federal law when it concluded that the following claims did not affect the voluntariness of Johnson’s plea and, therefore, were waived: (1) counsel’s failure to move for a bond hearing; (2) counsel’s failure to move to dismiss the attempted armed kidnapping charge for lack of a factual basis; (3) counsel’s discussing a plea agreement above trial strategy. McMann, 397 U.S. at 770–71; Bullard, 610 F. App’x at 824 (petitioner’s guilty plea waived claim that counsel was ineffective for failing to move to suppress evidence, because petitioner did not claim that his plea was involuntary due to his counsel’s failure to file the motion). Johnson, therefore, is not entitled to habeas relief on this aspect of Ground Two. 2. Counsel’s Failure to Advise of Abandonment Defense Johnson claims that his plea to the attempted armed kidnapping charge was involuntary because counsel failed to advise Johnson that he had a viable abandonment defense. Specifically, Johnson alleges that his “voluntary ceasing of action and decision not to accost or grab the alleged Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 21 of 34
Page 22 of 34 victim in Count 1 constituted a viable and statutorily enacted defense of abandonment.” Doc. 1 at 10–11. This claim fails on de novo review. “[W]here the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” Hill, 474 U.S. at 59. In Florida, “[t]he law distinguishes between a ‘voluntary abandonment’ and an ‘involuntary abandonment.’” Carroll v. State, 680 So. 2d 1065, 1066 (Fla. 3rd DCA 1996). “In order to constitute a defense, the abandonment must be complete and voluntary.” Id. at 1066–67 (citations and footnote omitted). “An involuntary abandonment occurs when the defendant fails because of unanticipated difficulties in carrying out the criminal plan at the precise time and place intended and then decides not to pursue the victim under these less advantageous circumstances.” Id. Here, Johnson certified in his written plea agreement that: “The arrest report or offense report or probable cause affidavit which is a part of the court record filed with the clerk of the court is hereby Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 22 of 34
Page 23 of 34 incorporated by reference and agreed to by the defendant as a factual basis for the plea.” Doc. 20-5 at 3 ¶ 7. Johnson also certified that he “reviewed the facts of my case(s) with my attorney and I agree and stipulate there are sufficient facts available to the State to justify my plea of guilty or nolo contendere to the charge(s).” Id. at 2 ¶ 8. In addition, Johnson certified that he “read the information or indictment and I understand the charge(s) set forth in the information or indictment.” Id. at 1 ¶ 4; see also Doc. 20-2 (Information). The facts Johnson admitted to in the arrest report did not support an abandonment defense. See Doc. 20-1. The facts in that report—which were based on the victims’ and Johnson’s co-defendants’ statements— establish the following. Johnson erected a barricade on the road leading to the victims’ residence in an attempt to make the young female victim (A.B.) stop her car so that Johnson and his co-defendants could take A.B. out of the car by force, coerce A.B. to open the security gate and enable them to enter the curtilage, and coerce A.B.’s father to exit the residence so Johnson and his co-defendants could rob it. The reason Johnson’s armed kidnapping plot failed was because A.B. unwittingly foiled it by driving Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 23 of 34
Page 24 of 34 around the barricade instead of stopping. Nothing in the arrest report or the state-court record suggests that Johnson completely and voluntarily abandoned the kidnapping plan. See Carroll, 680 So. 2d at 1067; Anderson v. State, 377 So. 3d 1225, 1227 (Fla. 4th DCA 2024). The fact that Johnson did not “accost or grab” A.B. after she unexpectedly drove around the barricade did not give rise to a viable voluntary-abandonment defense. Thus, Johnson was not prejudiced by counsel’s failure to advise of that defense. Because Johnson fails to establish prejudice under Strickland, this aspect of Ground Two must be denied. 3. Counsel’s Advice to Plead Guilty to a Charge That Lacked a Factual Basis Johnson claims that his plea to the attempted armed kidnapping charge violates due process because the charge was “unsupported by factual basis or any tangible evidence.” Doc. 1 at 11. Specifically, Johnson alleges that there was no evidence that he “commit[ted] some act towards the actual commission of the charged offense.” Id. This ineffective-assistance claim fails for the same reason as the previous one. Johnson certified in the written plea agreement that he read the arrest report and agreed that the facts stated in the arrest report Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 24 of 34
Page 25 of 34 were the factual basis for his nolo contendere plea. Doc. 20-5. The facts in the arrest report adequately cover Florida’s elements for the crime of attempted armed kidnapping with a weapon with intent to commit a felony. See Doc. 20-1. Because Johnson fails to establish deficient performance and prejudice under Strickland, this ineffective-assistance claim must be denied. 4. Counsel’s Failure to Request the Trial Court’s Compliance with Fla. R. Crim. P. 3.170 Johnson alleges that trial counsel was ineffective for failing to request that the trial court “follow the precepts of Florida Rules of Criminal Procedure 3.170(k) and 3.172(a)(c)(1) (3) and (c10d and e).” Doc. 1 at 12. Johnson alleges that had counsel made that request, the trial court “would have seen that I was misinformed concerning any possible defense, subsequently and consequently being induced into making an involuntary plea.” Id. The foregoing discussion demonstrates that Johnson’s hypothesized abandonment defense was not viable. Also, as the state court pointed out, the arrest report, Johnson’s written plea agreement, and Johnson’s statements during the plea colloquy establish that Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 25 of 34
Page 26 of 34 Johnson’s plea was knowing and voluntary, and that the plea was supported by a factual basis. See Doc. 20-1; Doc. 20-5, Doc. 20-7; Doc. 20- 8. The state court’s rejection of this claim was neither contrary to, nor an unreasonable application of the Strickland standard. For all the reasons set forth above, the District Court should deny relief on Johnson’s ineffective-assistance claims in Ground Two, including his claim of cumulative error. Ground Three “Illegal sentence” Doc. 1 at 13. Johnson alleges that the 10-year mandatory minimum term of imprisonment for the attempted home-invasion robbery with a firearm is “illegal” for two reasons. Doc. 1 at 13. First, “the Court neglected during oral pronouncement to inform this Defendant that he was being sentenced pursuant to the ‘10-20-Life’ Florida Statute.” Doc. 1 at 13. Second, “the Defendant, not Defendant’s counsel, was required by law to specifically admit to the actual possession of a firearm in order to be subjected to sentencing pursuant to the minimum mandatory portion as required by Fla. Statute 775.087(2)(a)(1).” Id. at 14. Johnson alleges that he exhausted this claim by presenting it in his Rule 3.800(a) motion that was denied on May 18, 2021. Doc. 1 at 14. Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 26 of 34
Page 27 of 34 The State argues that Johnson is not entitled to relief because (1) this claim raises a purely state-law issue; (2) to the extent it raises a federal claim, the federal claim is procedurally defaulted; (3) the claim has no merit. Doc. 20 at 30–31. A. No Habeas Relief for State-Law Violations To the extent Johnson alleges that the state trial court failed to follow Florida’s procedural requirements before imposing the 10-year mandatory minimum, his claim provides no basis for federal habeas relief. Federal habeas relief is available to correct only constitutional injury. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[F]ederal habeas corpus relief does not lie for errors of state law.”); Estelle v. McGuire, 502 U.S. 62, 67- 68 (1991) (errors that do not infringe upon a defendant’s constitutional rights provide no basis for federal habeas corpus relief; “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”); Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (“[W]e consistently have held that federal courts cannot review a state’s alleged failure to adhere to its own sentencing procedures.”). Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 27 of 34
Page 28 of 34 B. Johnson Knew He Would Be Sentenced to the 10-Year Mandatory Minimum and Johnson Admitted that He Possessed a Firearm To the extent Johnson suggests that his plea was unknowing because he did not understand he would be sentenced to a 10-year mandatory minimum for the attempted home-invasion robbery with a firearm, his claim is refuted by the record. The charging document specifically alleged that Johnson possessed a firearm during the commission of the attempted home-invasion robbery, and cited Fla. Stat. § 775.087. Doc. 20-2. Johnson’s written plea agreement indicated that the offense of attempted home-invasion robbery with a firearm was subject to a 10-year mandatory minimum. Doc. 20-5 at 1. Johnson certified in the written plea agreement that he understood “that the maximum period of imprisonment/incarceration and fines, as well as any mandatory minimum that apply, with regard to the charges to which I am entering my plea are as indicated on page 1 of this agreement.” Doc. 20-5 at 2 ¶ 4(7). Johnson also certified in the plea agreement that the facts stated in the arrest report were the factual basis for his plea. Doc. 20-5 at 3 ¶ 7. Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 28 of 34
Page 29 of 34 The arrest report stated that Johnson actually possessed a firearm during the commission of the attempted home-invasion robbery. Doc. 20- 1. Before Johnson entered his nolo contendere plea at the plea hearing, the State orally amended the information to include citation to the specific 10-20-Life subsection of the statute, Fla. Stat. § 775.087(2)(a)(1). Doc. 20-7 at 3. Johnson swore under oath at the plea hearing that he was pleading nolo contendere “to the Court in the two- count information as orally amended by the State. Doc. 20-7 at 3–4. For all the reasons set forth above, Johnson is not entitled to habeas relief on Ground Three. Ground Four “Conviction obtained without any factual basis for the crimes listed in the judgment and sentence” Doc. 1 at 15. In his final claim, Johnson alleges that the written judgment has three errors. First, the judgment incorrectly reflects Count 1 of Case No. 2017-CF-3125 as a conviction for violating Fla. Stat. § 787.01(1a3), which “cites this as a crime committed against a child under the age of 13.” Doc. 1 at 15 (emphasis added). Second, the “conviction papers show [Johnson] as a child predator.” Id. Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 29 of 34
Page 30 of 34 Third, the written judgment incorrectly reflects that in Case No. 2017-CF-3398, Johnson was convicted of “Agg Battery w/Firearm; Discharging Firearm” in violation of Fla. Stat. 784.045(1a), but Johnson’s nolo contendere plea was to “battery with great bodily harm, no firearm.” Doc. 1 at 15–16 (emphasis added). The State argues that Johnson is not entitled to relief because (1) Johnson procedurally defaulted this claim by failing to raise it on direct appeal; (2) Johson procedurally defaulted this claim by abandoning it in his Rule 3.850 proceeding (failing to raise it in the amended motion); and (3) the claim has no merit. Doc. 20 at 32–35. Johnson raised the same claim, verbatim, as “Ground 3” of his original Rule 3.850 motion. Doc. 20-18 at 7. Johnson, however, removed the claim from his amended Rule 3.850 motion. Doc. 20-20. Nevertheless, the state circuit court addressed the scrivener’s errors in the written judgment in its final order denying Johnson’s amended Rule 3.850 motion: The Court sua sponte finds that the judgment and sentence should be corrected to reflect the following: (1) the offense statute number for Count 1 in case number 2017-CF- 3125 is section 787.01(1)(a)2.; (2) the crime for Count 1 in case number 2017-CF-3398 is aggravated battery with great bodily harm with no firearm, the offense statute number is section Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 30 of 34
Page 31 of 34 784.045(1)(a)1., and the degree of crime is a second-degree felony; and (3) Defendant is entitled to a total of 808 days of jail credit in case number 2017-CF-3125 and a total of 778 days of jail credit in case number 2017-CF-3398. Doc. 20-23 at 4 (footnotes omitted). The First DCA summarily affirmed. On October 31, 2022, the state court entered an amended judgment that incorporated the corrections. Doc. 20-10. The amended judgment accurately reflects that Johnson was convicted in Count 1, Case No. 2017- CF-3125, of attempted kidnapping under Fla. Stat. § 787.01(1)(a)2. See Doc. 20-10 at 1. The amended judgment accurately reflects that Johnson was convicted in Case No. 2017-CF-3398 of aggravated battery with great bodily harm with no firearm under Fla. Stat. § 784.045(1)(a)1. See Doc. 20-10 at 1. Contrary to Johnson’s allegation, neither the original judgment nor the amended judgment indicates that Johnson was designated a child predator. See Doc. 20-9; Doc. 20-10. Because Johnson’s claim was mooted by entry of the amended judgment and otherwise lacks merit, the District Court should deny relief on Ground Four. A CERTIFICATE OF A PPEALABILITY IS N OT WARRANTED Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: “[t]he district court must issue or deny a Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 31 of 34
Page 32 of 34 certificate of appealability when it enters a final order adverse to the applicant.” 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).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. See 28 U.S.C. § 2254 Rule 11(b). “[Section] 2253(c) permits the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional right.’” Miller-El, 537 U.S. at 336 (quoting 28 U.S.C. § 2253(c)). “At the COA stage, the only question is whether the applicant has shown that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Buck v. Davis, 580 U.S. 100, 115 (2017). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 32 of 34
Page 33 of 34 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). Here, Petitioner has not made the requisite demonstration. Accordingly, the court should deny a certificate of appealability in its final order. “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” 28 U.S.C. § 2254 Rule 11(a). If there is an objection to this recommendation, the relevant party shall file such an objection with the District Court. C ONCLUSION For the reasons set forth above, the undersigned respectfully RECOMMENDS that the District Court: 1. DENY the petition for writ of habeas corpus, Doc. 1. 2. DENY a certificate of appealability. 3. DIRECT the clerk of court to close this case file. At Panama City, Florida, this 14th day of November 2025. /s/ Michael J. Frank Michael J. Frank United States Magistrate Judge NOTICE TO THE PARTIES The District Court referred this case to a magistrate judge to make recommendations regarding dispositive Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 33 of 34
Page 34 of 34 matters. See 28 U.S.C. § 636(b)(1)(B), (C). Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the report and recommendation. Any different deadline that may appear on the electronic docket is for the court’s internal use only. A party must serve a copy of any objections on all other parties. A party who fails to object to this report and recommendation waives the right to challenge on appeal the District Court’s order based on unobjected-to factual and legal conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636. Case 3:24-cv-00451-LC-MJF Document 27 Filed 11/14/25 Page 34 of 34
Ti chiedi come si applica questo testo alla tua situazione?
Consulenza gratuita, senza impegno
Descrivi la tua situazione. Il nostro team ti ricontatterà via e-mail per la tua consulenza.
Continua la tua ricerca in ChatGPT o Claude
Collega Omnilex per cercare nel corpus legale dal tuo assistente IA.