[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 16, 2009
THOMAS K. KAHN
No. 09-11592 CLERK
D. C. Docket No. 04-00994-CV-J-25-HTS
ELVIN B. SIMPSON,
Plaintiff-Appellee,
versus
WALTER A. MCNEIL,
Secretary of the Department of Corrections,
State of Florida,
BILL MCCOLLUM,
Attorney General,
Defendants-Appellants.
Appeal from the United States District Court
for the Middle District of Florida
(October 16, 2009)
Before DUBINA, Chief Judge, TJOFLAT, Circuit Judge, and WALTER,* District
Judge.
PER CURIAM:
In this case, the federal district court granted Elvin B. Simpson habeas relief
on his claim of ineffective assistance of counsel for failing to advise him about the
consequences of rejecting a plea offer from the State. The State appeals the
district court’s order granting Simpson relief and ordering the State to either
release Simpson for time served or impose a sentence not to exceed the amount of
time provided in the plea offer. Because we conclude from the record that the
district court abused its discretion in granting an evidentiary hearing on this
particular claim of ineffective assistance of counsel and erred when it granted
Simpson habeas relief, we reverse the district court’s order and render judgment
for the State.
I. BACKGROUND
The State charged Simpson with one count of second degree murder with a
firearm for the murder of his wife. After a trial, the jury returned a guilty verdict
and found that Simpson possessed a firearm when he committed the murder. At
*
Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
2
sentencing, the state trial court imposed a sentence of life in prison, based on the
statutory ground that the murder was committed in the presence of a family
member, the victim’s niece. See Fla. Stat. § 921.0016(3)(m) (1994) (repealed
1998). The state appellate court affirmed Simpson’s conviction and sentence.
Simpson v. State,
676 So. 2d 434 (Fla. Dist. Ct. App. 1996).
Simpson filed a motion for post-conviction relief in the state trial court.
Among his many claims, Simpson alleged that his trial counsel was ineffective for
failing to advise him properly regarding the details of the State’s plea offer. After
conducting an evidentiary hearing on another claim, the state trial court summarily
denied relief. On appeal, the state appellate court reversed and indicated that the
state trial court should conduct further review of Simpson’s claim that his counsel
did not properly advise him regarding the State’s plea offer. Simpson v. State,
741
So. 2d 1241, 1242 (Fla. Dist. Ct. App. 1999).
On remand, the state trial court conducted another evidentiary hearing,
found that no plea offer existed, and denied Simpson relief. The state court found,
in pertinent part, that Simpson could not meet his burden of showing that there
was a firm plea offer that he could have accepted. The state court noted that
Simpson’s trial counsel, Burton Green, appeared at the evidentiary hearing but
failed to testify. In light of the absence of testimony or other evidence to confirm
3
the existence of a plea offer, the state trial court denied Simpson’s motion for post-
conviction relief. The state appellate court affirmed. Simpson v. State,
792 So. 2d
474 (Fla. Dist. Ct. App. 2001).
In September 2001, Simpson filed a successive motion for post-conviction
relief in state court, raising five claims of ineffective assistance of post-conviction
counsel. Among Simpson’s claims was that his post-conviction counsel was
ineffective for failing to call Burton Green to testify at the second evidentiary
hearing. Simpson amended his motion to include a claim that newly discovered
evidence, which could not have been discovered previously through due diligence,
would have changed the outcome of his second evidentiary hearing. In support of
his contention, Simpson attached a recently received letter purportedly written by
John Gitchoff, who assisted Simpson’s trial counsel, stating that Gitchoff recalled
a discussion about the State’s plea offer of 13 years. Specifically, the letter stated:
“I spoke with Burton Green about the State’s plea offer. Burton is against you
accepting a plea of 13 years. He says your maximum sentence is around 18.6
years if convicted. I’m inclined to agree with Burton.” (R. 47 at 32 (quoting App.
Q to the Second Am. Pet., R. 35)).
The state trial court denied the post-conviction motion as untimely and
successive and found that claims of ineffective assistance of post-conviction
4
counsel are not cognizable in a state post-conviction motion. The state trial court
also found that the claim of newly discovered evidence involved a post-conviction
evidentiary hearing, not a new trial, and thus was not cognizable. The state
appellate court affirmed the trial court’s denial of relief.
Simpson later filed a state habeas corpus petition, again alleging the claim
of ineffective assistance of post-conviction counsel for failing to present credible
evidence at the evidentiary hearing concerning the State’s alleged plea offer of 13
years. In the petition, Simpson stated that his post-conviction counsel informed
him that if Green was called to testify in the state post-conviction evidentiary
hearing, he only would have stated that he did not remember anything about the
alleged plea offer. Simpson stated that because of Green’s purported
representation to Simpson’s post-conviction counsel, Simpson did not call Green
to testify. The state trial court denied Simpson habeas relief and the appellate
court affirmed. See Simpson v. State,
832 So. 2d 929 (Fla. Dist. Ct. App. 2002).
Simpson then filed a federal habeas petition pursuant to 28 U.S.C. § 2254
(2000), raising, among other arguments, his claim that his trial counsel was
ineffective for failing to advise him properly about the consequences of declining
a plea offer from the State. Simpson amended his petition, and the State filed a
response. In support of his claim of ineffective trial counsel, Simpson attached to
5
his petition the 1995 Gitchoff letter described above and an affidavit from
Simpson’s trial counsel Burton Green. The district court ordered an evidentiary
hearing on this claim under § 2254(e)(2).1 The State filed a motion for
reconsideration, arguing that the district court was precluded from conducting an
evidentiary hearing on the same claim considered by the state trial court after an
evidentiary hearing because Simpson did not meet the requirements enumerated in
§ 2254(e)(2). The district court denied the State’s motion and conducted the
evidentiary hearing. After the hearing, the federal district court found, contrary to
the State court’s finding, that the State had extended a plea offer to Simpson and
that Simpson’s trial counsel was ineffective for failing to inform him about the full
consequences of rejecting the plea offer. The district court’s order commanded the
State to either release Simpson for time served or impose a sentence not to exceed
13 years, as provided in the plea offer. The State then perfected this appeal.
II. ISSUE
Whether the district court abused its discretion in granting Simpson an
evidentiary hearing on his claim of ineffective assistance of trial counsel and erred
in granting Simpson habeas relief.
1
The district court also denied Simpson’s other claims for relief. The denial of those claims
is not at issue in this appeal.
6
III. STANDARD OF REVIEW
We review for abuse of discretion the district court’s grant of an evidentiary
hearing. See Atwater v. Crosby,
451 F.3d 799, 811 (11th Cir. 2006) (reviewing
denial of evidentiary hearing). We review de novo the district court’s order
granting Simpson habeas relief. Wood v. Allen,
542 F.3d 1281, 1285 (11th Cir.
2008). The district court’s findings of fact, including the district court’s
determination regarding Simpson’s diligence in developing the factual basis of his
claim in the state court, are subject to the clearly erroneous standard. Hall v.
Head,
310 F.3d 683, 690, 697 (11th Cir. 2002). However, our review is “greatly
circumscribed and is highly deferential to the state courts.” Crawford v. Head,
311 F.3d 1288, 1295 (11th Cir. 2002).
IV. DISCUSSION
Sixth Amendment ineffective assistance of counsel claims are analyzed
under the standards established in Strickland v. Washington,
466 U.S. 668, 104 S.
Ct. 2052 (1984). Under Strickland:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it cannot be said
7
that the conviction . . . resulted from a breakdown in the adversary process
that renders the result unreliable.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also Gaskin v. Sec’y, Dep’t of
Corr.,
494 F.3d 997, 1002 (11th Cir. 2007). In order to sustain a showing of
prejudice, Simpson had to demonstrate a reasonable probability that but for his
counsel’s errors in failing to inform him of the consequences of not taking the
purported 13 year plea offer, he would have accepted the prosecution’s offer. See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;
Hall, 310 F.3d at 700. Therefore,
Simpson had to establish that there was, in fact, a plea offer for less than the life
sentence he received that he could have accepted had he been properly advised of
the risk of a life sentence by his counsel.
The state court determined that Simpson failed to meet the Strickland
prejudice prong because “there [was] no plea offer to enforce in this case.” The
state court trial judge stated in pertinent part:
So I just have a real problem with figuring out, if there was a plea
offer, what it was. The affidavits which occasioned this evidentiary hearing
talk in terms of 13 years kind of range. I have no indication whatsoever
there was a firm plea offer made in this case, Mr. Simpson. I just don’t have
it. It’s your burden. Mr. Green sat here at least until the rule was invoked,
and he came back in after we concluded the hearing. Mr. Green had access
to the State. Mr. Bausch has the State Attorney’s files. Somebody could
have testified that there was a plea offer. Nobody has testified that there
was a plea offer.
8
I think that there was nothing more than discussion, which does not
give you anything to accept. It just gives you something more to talk about.
Mr. Green may have told you that the low end of the guidelines was 13
years, which I guess was right. Everybody seems to agree to that. But I
have to agree with Mr. Holmes that step one here is to establish a plea offer,
and I think it has to be established by – maybe without Mr. Bausch’s
testimony, Mr. Simpson, maybe there wouldn’t be anything else. And your
testimony was not impeached, but it was certainly – because that’s your
understanding and nobody can impeach your understanding, and nobody
can impeach what you were told except the person who told you that or
somebody who heard the conversation; and that person didn’t testify today.
But certainly the testimony of the State is contrary to the notion of a
firm plea offer in this case. The Court will find that there is no plea offer to
enforce in this case. . . . The Court, therefore, finds that counsel could not
have been ineffective in misadvising because one of the prongs being that
there was a plea offer to accept, that could have been, would have been
accepted, has not been met.
(R. 52 at 17–18 (quoting Tr. of May 1, 2000 State Ct. Evidentiary Hr’g, R. 39,
Ex. N at 66–67).)
Simpson attached to his federal habeas petition evidence not presented to
the state court as support for his claim of ineffective assistance of counsel for
failure to adequately explain the risk of going to trial instead of accepting the
State’s plea offer. The district court ordered an evidentiary hearing on this claim
and after the hearing concluded that Simpson met his burden of proving Strickland
prejudice. The district court then ordered habeas relief.
9
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214, provides the standards the federal courts
must follow in determining whether to grant a petitioner habeas relief.2 AEDPA
states in part that a federal court is precluded from granting federal habeas relief
unless the state court’s adjudication of a 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.” 28 U.S.C. § 2254(d). “A
state-court decision will certainly be contrary to . . . clearly established precedent
if the state court applies a rule that contradicts the governing law set forth in
[Supreme Court] cases.” Williams v. Taylor,
529 U.S. 362, 405,
120 S. Ct. 1495,
1519 (2000). Simpson’s claim that he was deprived of effective assistance of
counsel is analyzed under the “unreasonable application” prong of § 2254(d)(1).
“Under [AEDPA’s] ‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct governing legal principle from
2
Simpson filed his federal habeas petition after the effective date of AEDPA, April 24, 1996,
and, therefore, the standards enunciated in AEDPA apply. See Lindh v. Murphy,
521 U.S. 320,
326–27,
117 S. Ct. 2059, 2063 (1997).
10
[the Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.”
Id. at 413, 120 S. Ct. at 1523.
AEDPA also “requires federal habeas courts to presume the correctness of
state courts’ factual findings unless applicants rebut this presumption with ‘clear
and convincing evidence.’” Schriro v. Landrigan,
550 U.S. 465, 473–74, 127 S.
Ct. 1933, 1939–40 (2007) (citing 28 U.S.C. § 2254(e)(1)). “In cases where an
applicant for federal habeas relief is not barred from obtaining an evidentiary
hearing by 28 U.S.C. § 2254(e)(2) [due to his own lack of diligence], the decision
to grant such a hearing rests in the discretion of the district court.”
Id. at 468, 127
S. Ct. at 1937. “In deciding whether to grant an evidentiary hearing, a federal
court must consider whether such a hearing could enable an applicant to prove the
petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.”
Id. at 474, 127 S. Ct. at 1940. Thus, if the record refutes the
applicant’s claims or otherwise precludes habeas relief, a district court need not
conduct an evidentiary hearing.
Id. Where a petitioner has not diligently
presented the factual basis of his claim for relief in state court, however, AEDPA
further restricts the federal courts’ authority to grant an evidentiary hearing on a
petitioner’s claim, stating:
11
If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that –
(A) the claim relies on –
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2254(e)(2). A petitioner has “failed to develop the factual basis of
[his] claim in State court proceedings” if he lacked diligence in presenting the
factual basis of his habeas claim in state court or in seeking the opportunity to
develop evidence in a state hearing. Breedlove v. Moore,
279 F.3d 952, 959–60
(11th Cir. 2002).
The district court found that by failing to call Burton Green at the
evidentiary hearing on Simpson’s initial motion for post-conviction relief, §
2254(e)(2) was triggered. The district court stated in pertinent part:
The record before this Court reflects that Mr. Green was available to
testify at the May 1, 2000, evidentiary hearing; however, he did not testify.
As noted by the trial judge, Mr. Green was in the courtroom until the rule of
sequestration of witnesses was invoked and then he reappeared after the
conclusion of the hearing. However, Mr. Gitchoff’s January 21, 1995,
12
letter, which was received by Petitioner in 2001, was not discovered until
after the May 1, 2000, evidentiary hearing. Further, Mr. Gitchoff had
passed away before the evidentiary hearing. Petitioner has requested an
evidentiary hearing on this claim. Therefore, pursuant to 28 U.S.C. §
2254(e)(2)(A)(ii), this Court will grant an evidentiary hearing on this claim.
(R. 47 at 32–33) (citations omitted).
We review the district court’s determination that Simpson was not diligent
in developing the factual basis of his claim in the state court under the clearly
erroneous standard.
Hall, 310 F.3d at 697. The district court’s finding was not
erroneous, and the district court was correct that § 2254(e)(2) was triggered so as
to limit Simpson’s ability to obtain an evidentiary hearing. The district court
abused its discretion, however, when it determined that the requirements of §
2254(e)(2) were satisfied. Where the petitioner did not diligently develop the
factual basis of his claim in state court, elements of both § 2254(e)(2)(A) and §
2254(e)(2)(B) must be satisfied before a district court can grant an evidentiary
hearing. Section 2254(e)(2)(B) provides that the district court may order an
evidentiary hearing if “the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying
offense.” The requirement of § 2254(e)(2)(B) was not satisfied here. The State’s
13
alleged proffer of a 13 year plea offer in no way evidences Simpson’s innocence,
nor does Simpson attempt to argue that it does. See also
Williams, 529 U.S. at
435, 120 S. Ct. at 1490 (referring to the requirement of § 2254(e)(2)(B) as “a
convincing claim of innocence”); Burris v. Parke,
116 F.3d 256, 258 (7th Cir.
1997) (stating that § 2254(e)(2) does not apply to proceedings regarding
ineffective assistance of counsel during sentencing). Therefore we conclude that
the district court abused its discretion when it ordered an evidentiary hearing on
Simpson’s claim.
Because we conclude that no evidentiary hearing should have been held, we
consider only the evidence adduced at the state evidentiary hearing and attached to
Simpson’s petition in our de novo review of the district court’s grant of habeas
relief under § 2254(d)(1).3
The record refutes Simpson’s contention that the State made a firm plea
offer to him. The testimony from the state evidentiary hearing indicates that
Simpson did not have any direct conversation with the State’s Attorney, Russ
Bausch, regarding a plea, nor was there any document in evidence that
corroborated the alleged plea offer. Bausch testified that he had no recollection of
3
For purposes of discussion, we consider all of the additional evidence proffered by Simpson
with his petition. We do not here opine on the appropriateness of considering evidence that could
have been, but was not, raised during the state court evidentiary hearing.
14
the State making a firm plea offer to Simpson. The other witnesses at the state
evidentiary hearing, including Simpson, indicated nothing more than that Simpson
may have discussed the possibility of a 13 year plea with his attorney. Based on
this testimony, the state court found that no plea offer existed. The additional
evidence proffered by Simpson does not demonstrate by clear and convincing
evidence that this finding was erroneous. See 28 U.S.C. § 2254(e)(1).
The Gitchoff letter, quoted above, did not contradict the state court’s
finding that there was no plea offer extended. The letter, at most, indicates that
Simpson and his counsel thought there was an offer by the State. It does not prove
that there was an offer. Like the Gitchoff letter, the Green affidavit does not
contradict the state court’s finding that no plea existed. At most, the affidavit
indicates that there was a discussion of a possible plea. Accordingly, neither
document provides clear and convincing evidence to rebut the state court’s factual
finding that no firm plea offer existed.
Without a firm plea offer, Simpson cannot establish the prejudice prong of
Strickland, and his claim for habeas relief based on his trial counsel’s failure to
adequately explain the risk of going to trial instead of accepting a purported plea
offer from the State fails. Accordingly, we reverse the district court’s order
granting Simpson habeas relief and render judgment for the State.
15
REVERSED and RENDERED.
16
