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Case 5:10-cv-00064-JES-PRL Document 44 Filed 09/19/13 Page 1 of 12 PageID 133

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

NORMAN LOCKLEY,

Petitioner,

vs.
WALTER MCNEIL, SECRETARY
FLORIDA DEPARTMENT OF
CORRECTIONS; THE ATTORNEY
GENERAL OF THE STATE OF FLORIDA,
Respondents.
_________________________________

Case No. 5:10-cv-64-Oc-29TBS

OPINION AND ORDER

Status

Petitioner Lockley (hereinafter “Petitioner” or “Defendant”)
initiated this action by filing a Petition for Writ of Habeas
Corpus (Doc. #1, Petition) pursuant to 28 U.S.C. § 2254 on February
17, 2010. Respondent filed a Response (Doc. #9, Response) to the
Petition and supporting exhibits (Doc. #10, Exhs. A-H) consisting
of, inter alia, the transcript of the plea colloquy and
postconviction pleadings. Petitioner filed a Reply (Doc. #11,
Reply). Thereafter, the case was administratively closed pursuant
to the Court’s Order (Doc. #27) granting Petitioner’s unopposed
motion to stay the case pending resolution of Shelton v. Sec’y
Dep’t of Corr., 691 F.3d 1348 (11th Cir. 2012). In May 2013, the
case was reopened based on the Eleventh Circuit’s order reversing
Shelton v. Sec’y Dep’t of Corr., 802 F. Supp. 2d 1289 (M.D. Fla.

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July 27, 2011) and finding that Florida’s drug statute was
constitutional. See Doc. #42. This matter is ripe for review.

1

Procedural History

Petitioner was charged in an amended information of the
following six counts: (1) sale of cocaine; (2) possession of
cocaine with intent to sell/deliver; (3) trafficking in cocaine 28
grams or more; (4) trafficking in cocaine 400 grams or more; (5)
possession of cannabis with intent to sell; and, (6) conspiracy to
traffic cocaine. Exh. A at 14-15, 28-29. The incidents leading to
these charges occurred when Petitioner sold cocaine to two
confidential informants, who were working with the Citrus County
Sheriff’s Office, on October 26, 2006, November 21, 2006, and
December 7, 2006. See Exh. H at 4-11. On the morning Petitioner’s
trial was scheduled to begin, he plead nolo contendere to the
charges set forth in the amended information in open court.
See Exh. B (plea hearing). As a result of the negotiated plea
agreement, Petitioner was sentenced to fifteen-years incarceration,
which was the minimum mandatory sentence. Id. at 4-5, 24-25.

Petitioner then pursued postconviction relief. Petitioner
filed a direct appeal. The direct appeal was dismissed based on

1

To the extent Petitioner moves to supplement his Petition,
see Doc. #43, to include a claim that the Florida drug statute he
was sentenced under is unconstitutional pursuant to Shelton, 802 F.
Supp. 2d 1289 (M.D. Fla. July 27, 2011), the Motion is denied.
Florida’s drug statute is constitutional. See Shelton, 691 F.3d
1348 (11th Cir. 2012).

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Petitioner’s failure to comply with the appellate court’s orders.
See Exh. C. Petitioner next filed a motion for postconviction
relief pursuant to Florida Rule of Criminal Procedure 3.850
(hereinafter “Rule 3.850 Motion”) raising the same four claims of
ineffective assistance of counsel as set forth in the instant
Petition. Exh. D. The postconviction court summarily denied the
motion as refuted by the record and further found the claims barred
by Petitioner’s knowing and voluntary nolo contendere plea. Exh.
E. Petitioner then initiated the instant § 2254 Petition.

Findings of Fact and Conclusions of Law

This Court has carefully reviewed the record and, for the
reasons set forth below, concludes no evidentiary proceedings are
required in this Court. Schriro v. Landrigan, 550 U.S. 465, 473-
475 (2007). Petitioner does not proffer any evidence that would
require an evidentiary hearing, Chandler v. McDonough, 471 F.3d
1360 (11th Cir. 2006), and the Court finds that the pertinent facts
of the case are fully developed in the record before the Court.
Schriro, 550 U.S. at 474-475; Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004).

Post-AEDPA law governs this action. Penry v. Johnson, 532
U.S. 782, 792 (2001); Davis v. Jones, 506 F.3d 1325, 1331, n.9
(11th Cir. 2007). A federal court may entertain an application

2

2

The AEDPA imposes a one-year statute of limitations on § 2254
actions. 28 U.S.C. § 2244(d). Respondent concedes that the
(continued...)

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for a writ of habeas corpus from a state prisoner who claims his
custody violates the “Constitution or the laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Questions of state law are
generally insufficient to warrant review or relief by a federal
court under § 2254. Estelle v. McGuire, 502 U.S. 62, 68 (1991);
Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983);
Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000).
Questions of state law are only reviewed to determine whether the
alleged errors rendered “the entire trial fundamentally unfair.”
Carrizales, 699 F.2d at 1055.

Where a petitioner's claim raises a federal question that was
adjudicated on the merits in the state courts, the federal court
must afford a high level of deference to the state court’s
decision. See Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.
2008). Habeas relief may not be granted with respect to a claim
adjudicated on the merits in state court unless the adjudication of
the claim:

(1) 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; or
(2) 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.

2

(...continued)

Petition is timely filed in this Court. Response at 2. The Court
agrees that the Petition is timely.
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28 U.S.C. § 2254(d). See Brown v. Payton, 544 U.S. 133, 141
(2005); Price v. Vincent, 538 U.S. 634, 638-39 (2003). A state
court’s summary rejection of a claim, even without explanation,
qualifies as an adjudication on the merits which warrants
deference. Ferguson, 527 F.3d at 1146; Wright v. Sec’y Dep’t of
Corr., 278 F.3d 1245, 1253-54 (11th Cir. 2002). See also Peoples
v. Campbell, 377 F.3d 1208, 1227 (11th Cir. 2004), cert. denied,
545 U.S. 1142 (2005).

“Clearly established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the decisions
of the United States Supreme Court at the time the state court
issues its decision. Thaler v. Haynes, 559 U.S. 43, 47 (2010);
see also Carey v. Musladin, 549 U.S. 70, 74 (2006)(citing Williams
v. Taylor, 529 U.S. 362, 412 (2000)). “A state court decision
involves an unreasonable application of federal law when it
identifies the correct legal rule from Supreme Court case law but
unreasonably applies that rule to the facts of the petitioner’s
case, or when it unreasonably extends, or unreasonably declines to
extend, a legal principle from Supreme Court case law to a new
context.” Ponticelli v. Sec’y Dep’t of Corr., 690 F.2d 1271, 1291
(11th Cir. 2012)(internal quotations and citations omitted). In
cases where nothing in the Supreme Court’s jurisprudence addresses
the issue on point or the precedent is ambiguous and gives no clear
answer to the question, it cannot be said that the state court’s
conclusion is contrary to, or constitutes an unreasonable

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application of, “clearly established Federal law.” Wright v. Van
Patten, 552 U.S. 120, 126 (2008); Mitchell v. Esparza, 540 U.S. 12,
15-16 (2003).

A state court decision can be deemed “contrary to” the Supreme
Court’s clearly established precedents within the meaning of §
2254(d)(1) only if: (1) the state court applies a rule that
contradicts the governing law as set forth in Supreme Court cases,
or (2) the state court confronts a set of facts that is “materially
indistinguishable” from those in a decision of the Supreme Court
and yet arrives at a different result. Brown, 544 U.S. at 141;
Mitchell, 540 U.S. at 15-16. Further, it is not mandatory for a
state court decision to cite, or even to be aware of, the relevant
Supreme Court precedents, “so long as neither the reasoning nor the
result . . . contradicts them.” Early v. Parker, 537 U.S. 3, 8
(2002); Mitchell, 540 U.S. at 16.

A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle but applies it to the
facts of the petitioner’s case in an objectively unreasonable
manner, Brown, 544 U.S. at 134; Bottoson v. Moore, 234 F.3d 526,
531 (11th Cir. 2000), cert. denied, 534 U.S. 956 (2001); or, “if
the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new

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context where it should apply.” Bottoson, 234 F.3d at 531 (quoting
Williams, 120 S. Ct. at 1520). The “unreasonable application”
inquiry “requires the state court decision to be more than
incorrect or erroneous”; it must be “objectively unreasonable.”
Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003)(citation omitted);
Mitchell, 540 U.S. at 17-18. Depending upon the legal principle at
issue, there can be a range of reasonable applications. Yarborough
v. Alvarado, 541 U.S. 652, 663-64 (2004). Thus, the state court’s
decision is not subject to federal review de novo; rather, §
2254(d)(1) relief is only available upon a showing that the state
court decision meets the “objectively unreasonable” standard. Id.
at 665-66.

A § 2254 petitioner can also obtain relief by showing that a
state court decision “was based on an unreasonable determination of
the facts in light of the evidence presented.” 28 U.S.C. §
2254(d)(2). Where the credibility of a witness is at issue, relief
may only be granted if it was unreasonable, in light of the
evidence presented, for the state court to credit the testimony of
the witness in question. Rice v. Collins, 546 U.S. 333, 338
(2006). Additionally, a factual finding by a state court is
presumed to be correct and a petitioner must rebut this
“presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005);
Henderson, 353 F.3d at 890-91. This statutory presumption of

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correctness, however, “applies only to findings of fact made by the
state court, not to mixed determinations of law and fact.” Parker
v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046
(2001)(citation omitted).

Here, Petitioner challenges his plea-based judgment and argues
that trial counsel rendered ineffective assistance by: (1) failing
to investigate the facts surrounding his possession and sale of
cocaine charges and failing to advise of any possible defense to
these charges; (2) failing to investigate the facts surrounding his
trafficking in cocaine charge and failing to advise of any possible
defense to these charges; (3) failing to suppress a search warrant
of the house; and, (4) failing to advise of a defense to the
charges because the narcotics were found in his residence also
occupied by his pregnant girlfriend. Petition at 6-9.

3

A federal habeas court reviews a state court guilty plea only
for compliance with federal constitutional protections. A plea of
nolo contedere has the same legal effect in a criminal proceeding
as a guilty plea. Carter v. Gladish, Case No. 8:03-cv-1194-T-
17TBM, 2005 WL 1712263 *9 (M.D. Fla. 2005)(noting under Florida law
a plea of nolo contendere has the same legal effect in a criminal
proceeding as a guilty plea). “A reviewing federal court may set
aside a state court guilty plea only for failure to satisfy due

3

To clarify, Petitioner’s girlfriend was not in the residence

when the narcotics were found. Petition at 9.

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process: ‘If a defendant understands the charges against him,
understands the consequences of a guilty plea, and voluntarily
chooses to plead guilty, without being coerced to do so, the guilty
plea . . . will be upheld on federal review.’” Stano v. Dugger,
921 F.2d 1125, 1141 (11th Cir. 1991)(other citations omitted). For
a guilty plea to be entered knowingly and intelligently, “‘the
defendant must have not only the mental competence to understand
and appreciate the nature and consequences of his plea but he also
must be reasonably informed of the nature of the charges against
him, the factual basis underlying those charges, and the legal
options and alternative that are available.’” Finch v. Vaughn, 67
F.3d 909, 914 (11th Cir. 1995)(citations omitted)(emphasis in
original).

Ineffective assistance of counsel may require that a plea be
set aside on the ground that it was involuntary because
voluntariness implicates not only threats and inducements but also
ignorance and incomprehension. See Hill v. Lockhart, 474 U.S. 52,
56 (1985)(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970))
(noting that the “longstanding test for determining the validity of
a guilty plea is ‘whether the plea represents a voluntary and
intelligent choice among the alternative courses of action open to
the defendant.’”). However, a knowing and voluntary plea waives
all constitutional challenges to a conviction, including a claim of
ineffectiveness of counsel. Wilson v. United States, 962 F.2d 996,

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997 (11th Cir. 1992); see also Hutchins v. Sec’y Dep’t of Corr.,
273 Fed. App’x 777 (11th Cir. 2008)(affirming district court’s
dismissal of a petition challenging effectiveness of counsel when
the plea was knowingly and voluntary entered).

Here, the record shows that the trial court found Petitioner’s
plea was entered knowingly and voluntarily and this Court gives
deference to the state court’s determination. See Exh. E. The
facts presented by the prosecutor at the plea hearing are as
follows: The trial transcript reflects that the trial judge and
counsel asked Petitioner a series of questions prior to accepting
the plea. See Exh. B. The transcript from the plea hearing shows
that Petitioner was present when counsel told the Court that
Petitioner was entering the plea. Id. at 1, 4-5 Petitioner stated
under oath that he discussed the case with his attorney, his lawyer
explained all of his rights to him with respect to the plea, and he
understood what his sentence would be if he plead guilty to the
charges even prior to the plea colloquy. Id. at 15-19. Petitioner
stated that he was not under the influence of any substance, was
not coerced or threatened to enter the plea, and that he read his
plea form. Id. at 11-12. Petitioner answered affirmatively that
he believed the plea was in his best interests and that he
understood his constitutional rights. Id. at 18. Petitioner
further answered the affirmative that, by entering the plea and
waiving his rights, that he would forever waive his rights to

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appeal or challenge any of the issues of the case, either the facts
of the case or the legality of any decisions reached, except to the
extent any claims were reserved by the plea agreement. Id. at 19.
The record shows that Petitioner reserved no claims.

Based on the foregoing, it is clear that Petitioner knowingly
and voluntarily plead guilty to the offenses for which he was
convicted, thereby waiving these ineffective assistance of counsel
claims that arose prior to entry of the plea. Petitioner
understood the nature of the charges and believed it was in his
best interests to enter the negotiated nolo contendere plea
agreement. See Exh. B at 20.
ACCORDINGLY, it is hereby
ORDERED:
1. Petitioner’s motion to supplement (Doc. #43) is DENIED.
2. The Petition for Writ of Habeas Corpus is DISMISSED with

prejudice.

3. The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
CERTIFICATE OF APPEALABILITY AND

LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability on the petition. A prisoner seeking
a writ of habeas corpus has no absolute entitlement to appeal a
district court’s denial of his petition. 28 U.S.C. § 2253(c)(1);

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Harbison v. Bell, 556 U.S. 180, 183 (2009). “A [COA] may issue .
. . only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, Petitioner “must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Tennard v. Dretke, 542
U.S. 274, 282 (2004), or that “the issues presented were adequate
to deserve encouragement to proceed further,” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003)(citations and internal quotation
marks omitted).

Petitioner has not made the requisite showing in these
circumstances. Finally, because Petitioner is not entitled to a
certificate of appealability, he is not entitled to appeal in forma
pauperis.

DONE AND ORDERED in Fort Myers, Florida, on this 19th day

of September, 2013.

SA: alj
Copies: All Parties of Record

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