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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-16490 Non-Argument Calendar ________________________
D.C. Docket No. 3:13-cv-01105-BJD-MCR
BENJAMIN NEILL LAWSON,
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 ________________________
(April 26, 2018)
Before TJOFLAT, NEWSOM and HULL, Circuit Judges.
PER CURIAM: Case: 16-16490 Date Filed: 04/26/2018 Page: 2 of 16
Benjamin Neill Lawson, a Florida prisoner serving a 20-year total sentence
for driving under the influence of alcohol (“DUI”) and causing the death of one
person and serious injury to another person, appeals from the denial of his petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Lawson argues that his
second counsel in his criminal case was constitutionally ineffective by inducing
him to reject the state’s plea offer. After careful review, we affirm because
Lawson has not shown that the state court’s decision denying his ineffective
counsel claim was an unreasonable application of clearly established federal law or
an unreasonable determination of the facts in light of the evidence presented at the
evidentiary hearing in state court.
I. UNDERLYING CRIMINAL ACTION
A. 2005 Charges
On August 20, 2005, Lawson, then aged 22, was driving at 118 or 119 mph,
with an unlawful blood alcohol level of .19 percent, when he lost control of his car
and crashed into a guardrail. One of his passengers, Nicholas Jeffries, died, and
another passenger, Rebecca Snoddy, was seriously injured.
Subsequently, a criminal information charged Lawson with two offenses
under Florida law: (1) DUI resulting in the death of another person (passenger
Jeffries), termed “DUI manslaughter” (Count 1); and (2) DUI resulting in serious
bodily injury to another person (passenger Snoddy), termed “DUI with serious
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bodily injury” (Count 2). Count 1, a second degree felony, carried a statutory
maximum sentence of 15 years. Fla. Stat. §§ 316.193(3)(3)(a), 775.082(3)(d).
Count 2, a third degree felony, carried a statutory maximum sentence of 5 years.
Fla. Stat. §§ 316.193(3)(2), 775.082(3)(e).
B. First Attorney and Plea Offer in 2005-2006
On October 19, 2005, attorney Robert Shafer appeared on Lawson’s behalf
and entered a written plea of not guilty. At some point thereafter, the government
offered Lawson a plea agreement with a sentencing range of 5–15 years. In a jail
telephone conversation with his mother, Lawson stated that attorney Shafer told
him he faced up to 20 years in prison if convicted of Counts 1 and 2. This was
accurate because Lawson could be sentenced to 20 years if he received the
maximum sentence for both charges and the sentences were consecutive. Shafer
recommended Lawson accept the plea offer.
C. Second Attorney and March 28, 2006 Hearing
At a hearing on March 28, 2006, at which attorney Shafer was present,
Lawson rejected the government’s plea offer. At the hearing, the state then
revoked its plea offer and made clear that “[t]here [would] be no further offers
from the State.”
At the same hearing, Lawson agreed that he wanted to be represented by a
new attorney, Scott Salomon.
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Lawson also filed a written Rejection of Plea Agreement, dated March 27,
2006. In the Rejection of Plea Agreement, Lawson acknowledged that his “prior
counsel” (Shafer) had negotiated a plea bargain with a 5–15 year sentencing range.
Lawson stated that his “former attorney” (Shafer) recommended that he accept the
offer, and further advised that if Lawson rejected the offer he could receive a
greater punishment than was offered by the prosecution. Lawson also stated that
his “attorney” (Salomon) advised that the maximum punishment was set by statute
and could exceed the punishment provided by the plea offer.
D. Additional 2007 Charges, Trial, and Convictions
About a year later, in March 2007, the government brought two additional
charges against Lawson: (3) vehicular homicide of passenger Jeffries (Count 3);
and (4) reckless driving causing serious bodily injury to passenger Snoddy (Count
4). Vehicular homicide in Count 3, like DUI manslaughter of the same passenger
in Count 1, was a second degree felony with a statutory maximum sentence of 15
years. Fla. Stat. §§ 782.071(1)(a), 775.082(3)(d). Reckless driving causing
serious bodily injury in Count 4, like DUI with serious bodily injury to the same
passenger in Count 2, was a third degree felony with a statutory maximum
sentence of 5 years. Fla. Stat. §§ 316.192(3)(2), 775.082(3)(e). Unlike the DUI
charges in Counts 1 and 2, the non-DUI charges in Counts 3 and 4 were based on
Lawson’s excessive speed and not his intoxication.
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In June 2007, the case proceeded to trial. A jury convicted Lawson of all
four counts. The state trial court sentenced Lawson to the maximum 15 years as to
Count 1 and the maximum 5 years as to Count 2, to be served consecutively, for a
total of 20 years. The state trial court did not impose a sentence on Lawson for
Counts 3 and 4, based on double jeopardy principles. See Houser v. State, 474 So.
2d 1193, 1197 (Fla. 1985) (holding that an offender may not be punished for both
DUI manslaughter and vehicular homicide for the same death); Kelly v. State, 987
So. 2d 1237, 1239 (Fla. Dist. Ct. App. 2008) (holding that an offender could not be
punished for both DUI with serious bodily injury and driving without a valid
license with serious bodily injury based on injury to the same person).
On December 22, 2008, the Florida appellate court affirmed Lawson’s
convictions and sentence without an opinion.
II. STATE POST-CONVICTION PROCEEDINGS
In February 2009, Lawson, now proceeding with a third set of attorneys,
moved for post-conviction relief in state court, pursuant to Florida Rule of
Criminal Procedure 3.850. Lawson argued that Scott Salomon, his second
attorney, was constitutionally ineffective for advising him to reject the
government’s plea offer. In particular, Lawson asserted that (1) Salomon falsely
assured Lawson and his family that Lawson would be acquitted, and (2) Salomon
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failed to warn Lawson that the state would file the two charges in Counts 3 and 4 if
Lawson went to trial.
A state post-conviction court held a two-day evidentiary hearing on
Lawson’s Rule 3.850 motion. At the hearing, Salomon and Shafer, Lawson’s two
prior attorneys, testified, as did three members of Lawson’s family. Lawson
himself did not testify. Lawson also submitted (1) evidence relating to disciplinary
and criminal proceedings against attorney Salomon, and (2) transcripts of
telephone conversations Lawson had with friends and family while he was in jail
awaiting trial.
After the hearing, the state post-conviction court issued a written opinion
denying Lawson’s Rule 3.850 motion. The state post-conviction court made fact-
findings that were pivotal to its denial of Lawson’s Rule 3.850 motion on the
merits.
The state post-conviction court found that (1) after the first plea offer was
rejected, the state never made another plea offer that Salomon could have
conveyed to Lawson, (2) the prosecution informed Lawson at the March 28, 2006
plea hearing—when Lawson rejected the plea offer—that the offer was revoked
and no further offer would be forthcoming, (3) Lawson stated in a jail telephone
conversation with his mother that Shafer told him he faced 20 years at trial, and
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(4) Lawson did not prove that Salomon guaranteed an acquittal if Lawson went to
trial.
The state post-conviction court credited attorney Salomon’s testimony that
when he communicated directly with Lawson, Salomon said only that he would
take the case to trial, if that was Lawson’s desire. In addition, Salomon testified
that Virginia Bergeron, Lawson’s mother, told Salomon she did not want Lawson
to go to prison without a trial. Ms. Bergeron testified to the contrary, but the state
court found Salomon’s testimony “more persuasive than the evidence provided by
the Defendant.”
As to the two additional charges, the state post-conviction court did not
make a factual finding as to whether or not Salomon failed to warn Lawson about
the possibility of the state’s adding two charges. Even assuming deficient
performance, the state court determined the two new charges did not prejudice
Lawson. As to prejudice, the state post-conviction court first reasoned that the
manslaughter charge in Count 1 and the DUI charge in Count 2 already carried a
total sentence of 20 years, and the addition of the two charges in Counts 3 and 4
could not have increased Lawson’s maximum sentence of 20 years without
violating double jeopardy. Thus, even assuming attorney Salomon may have
misadvised Lawson by not warning him about the two possible charges in Counts 3
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and 4, that misadvice did not prejudice Lawson, because Lawson already knew
about the maximum prison sentence he faced by going to trial.
In addition, again assuming Salomon did not warn Lawson about the
potential new charges, the state post-conviction court also found that Lawson
failed to prove that he would have accepted the state’s plea offer but for counsel’s
errors.
The Florida appellate court affirmed the denial of Lawson’s Rule 3.850
motion without an opinion.
III. FEDERAL HABEAS PROCEEDINGS
In 2013, Lawson, proceeding pro se, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.1 On September 8, 2016, the district court
denied Lawson’s § 2254 petition. The district court construed Lawson’s § 2254
petition as asserting two grounds for relief: first, that Salomon induced him to
reject a plea offer by guaranteeing acquittal on the DUI charges in Counts 1 and 2
(“Ground One”); and second, that Salomon was ineffective for not advising
Lawson that the state would charge him with the two additional charges, for which
there were no defenses, if he rejected the plea agreement (“Ground Two”).
1 After Lawson filed his § 2254 petition but before the district court ruled on it, Lawson retained counsel and was granted oral argument. Counsel also filed a supplemental memorandum in support of the § 2254 petition. 8 Case: 16-16490 Date Filed: 04/26/2018 Page: 9 of 16
As to Ground One, the district court reviewed the state post-conviction
court’s findings and concluded that they were neither an unreasonable application
of controlling law nor an unreasonable determination of the facts. The district
court acknowledged there were reasons to doubt attorney Salomon’s truthfulness,
but noted that the state post-conviction court made an informed credibility
determination, stating:
The circuit court judge had a full opportunity to assess Mr. Salomon’s credibility during the evidentiary hearing and was fully aware that Mr. Salomon had been disbarred, indicted in federal court, and convicted of fraud in state court. [ . . . . ] Notwithstanding these reasons to doubt his credibility, the post-conviction court accepted Mr. Salomon’s testimony over the testimony of Petitioner’s witnesses and the sworn allegations in Petitioner’s Rule 3.850 motion.
The district court concluded that Lawson did not demonstrate the state post-
conviction court unreasonably relied on Salomon’s testimony to find that Salomon
never promised an acquittal to Lawson.
As to Ground Two, regarding the two new charges, the district court did not
defer to the state post-conviction court’s prejudice analysis as to the 20-year
sentence. Rather, the district court first concluded Lawson had not shown he did
not know about the two other possible charges. In that regard, the district court
noted that (1) Lawson could have testified at the Rule 3.850 hearing as to his
ignorance of the possible two new charges, but Lawson did not, and (2) Shafer
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testified at the evidentiary hearing, and Lawson could have questioned Shafer
directly about whether Shafer warned him of those potential charges, but Lawson
did not. As a result, the district court found, “the record is . . . void of any
evidence that Petitioner [Lawson] did not know that the state would likely add the
indefensible non-DUI charges, despite his burden to establish that fact.” The
district court found that in the absence of this evidence, the Florida appellate court
could have reasonably concluded that Lawson had failed to carry his post-
conviction burden as to his ineffective counsel claim regarding the two new
charges.
Likewise, the district court noted, among other things, that Lawson had
never testified in state court that he would have accepted the plea offer if counsel
had advised him that the state would likely add the two new charges based on his
speed at the time of the accident. Thus, the state appellate court could have
reasonably concluded that Lawson failed to establish a reasonable probability that
he would have entered a plea but for counsel’s deficient performance.
The district court accordingly denied Lawson’s § 2254 petition and denied a
certificate of appealability (“COA”). Lawson appealed. This Court granted a
COA on two issues: (1) whether Salomon was ineffective for advising Lawson to
reject the plea offer by making false promises and assurances; and (2) whether
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Salomon was ineffective for failing to advise Lawson that the prosecution would
add the two new charges in Count 3 and 4 if he rejected the plea offer.
IV. STANDARD OF REVIEW
We apply a mixed standard of review to the district court’s denial of a
habeas petition filed under 28 U.S.C. § 2254. Stewart v. Sec’y, Dep’t of Corr., 476
F.3d 1193, 1208 (11th Cir. 2007). We review questions of law and mixed
questions of law and fact de novo, and we review findings of fact for clear error.
Id. A factual finding is clearly erroneous only if we are “left with the definite and
firm conviction that a mistake has been committed.” United States v. Mullens, 65
F.3d 1560, 1563 (11th Cir. 1995) (quotation marks omitted). We review de novo a
claim of ineffective assistance of counsel. Ward v. Hall, 592 F.3d 1144, 1155
(11th Cir. 2010).
However, like the district court, we are limited in our review of ineffective
counsel claims decided on the merits by state courts. Specifically, as amended by
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), § 2254
prohibits federal courts from granting habeas relief on a claim previously
adjudicated on the merits in state court, unless the state court decision (1) was
contrary to, or involved an unreasonable application of, clearly established federal
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law as determined by the Supreme Court, or (2) 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).
V. INEFFECTIVE ASSISTANCE OF COUNSEL
A habeas petitioner alleging ineffective assistance of counsel must show that
(1) his counsel’s performance was deficient, meaning that it fell below an objective
standard of reasonableness and was outside the wide range of professionally
competent assistance, and that (2) but for the deficient performance, there is a
“reasonable probability that the result of the proceeding would have been
different.” Johnson v. DOC, 643 F.3d 907, 928-29 (11th Cir. 2011) (citing and
quoting Strickland v. Washington, 466 U.S. 668, 688, 690, 694, 104 S. Ct. 2052,
2064, 2066, 2068 (1984)). A habeas petitioner must meet both prongs in order to
demonstrate ineffective assistance of counsel. Bishop v. Warden, GDCP, 726 F.3d
1243, 1254 (11th Cir. 2013).
Here, the state post-conviction court denied Lawson’s Rule 3.850 motion in
2011. At that time, the Florida courts, applying Strickland principles, required that
a defendant who raises an ineffective counsel claim as to a rejected plea offer must
prove that: (1) counsel failed to convey a plea offer or misinformed the defendant
concerning the possible sentence he faced; (2) the defendant would have accepted
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the plea but for counsel’s failures; and (3) acceptance of the plea would have
resulted in a lesser sentence than was ultimately imposed. See, e.g., Morgan v.
State, 991 So. 2d 835, 839-40 (Fla. 2008) (discussing Strickland); see also Lafler v.
Cooper, 566 U.S. 156, 164, 132 S. Ct. 1376, 1385 (2012).2
VII. ANALYSIS
A. Ground One – False Promises of Acquittal
Lawson claims he was induced to reject the plea offer by Salomon’s false
assurance of an acquittal, and thus no sentence at all. The record reasonably
supports the state court’s fact finding that Salomon never made that assurance.
At the Rule 3.850 hearing Salomon testified that he never promised Lawson
or any member of his family that Lawson would be acquitted, nor did he give
Lawson any recommendation on what the outcome at trial might be. Salomon’s
testimony is contradicted by Lawson’s Rule 3.850 motion and testimony from
Lawson’s family, the state post-conviction court credited Salomon, finding him
“more persuasive than the evidence provided by” Lawson.
We therefore agree with the district court that the state post-conviction court
did not unreasonably determine that Lawson had not shown his counsel rendered
2 Subsequently, the United States Supreme Court added an element that requires that the defendant show the state trial court would have accepted the plea agreement. Lafler v. Cooper, 566 U.S. 156, 164, 132 S. Ct. 1376, 1385 (2012). However, because that showing was not required when Lawson brought his Rule 3.850 motion, the state post-conviction court in Florida never addressed it, and we do not address it here. 13 Case: 16-16490 Date Filed: 04/26/2018 Page: 14 of 16
ineffective assistance as to the state’s plea offer. See Lafler, 566 U.S. at 164, 132
S. Ct. at 1385.
B. Ground Two – Failure to Advise about the New Charges
Lawson also claims he was prejudiced by Salomon’s failure to warn him that
the state would likely file the two new charges if he pled not guilty. The state post-
conviction court did not make a factual finding as to whether Salomon did or did
not warn Lawson about the new charges. Instead, the state court denied the claim
for two reasons: (1) that Salomon’s failure to warn, if any, was immaterial because
the new charges in Counts 3 and 4 did not increase Lawson’s sentencing exposure
beyond the 20 years he faced for Counts 1 and 2; and (2) that even assuming
Salomon failed to warn Lawson, Lawson did not prove he would have accepted the
plea offer but for counsel’s errors.
We agree with the district court that the state court “improperly focused on
the fact that the addition of counts three and four did not affect Petitioner’s
sentencing exposure.” The district court properly concluded that even if the two
new charges did not increase Lawson’s maximum sentence due to double jeopardy
principles, Lawson’s claim was that the two potential charges would have affected
whether he would have accepted the state’s plea offer of 5 to 15 years on the two
existing charges in Counts 1 and 2.
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Nonetheless, the state court’s merits decision—that Lawson did not prove
that he would have accepted the plea but for counsel’s errors—was supported by
evidence and was not an unreasonable determination. For example, at the
evidentiary hearing, attorney Shafer testified that he was aware the state might file
the two new charges if Lawson went to trial, and that he took that into
consideration when he negotiated the plea and advised Lawson to take the plea.
Yet Lawson still rejected the plea. As the district court emphasized, while some
jail telephone conversations with his mother indicate Lawson was willing to enter a
plea, other conversations indicate that Lawson and his mother were not satisfied
with the terms of the plea and wanted to proceed to trial before agreeing to a prison
term. Further, in a call with a friend, Lawson said that “[a] lot of people” were not
happy about the plea offer of 5 to 15 years. And, as the district court also pointed
out, Lawson himself “never testified about whether he would have pleaded guilty
but for the advice of counsel.”
Because the evidence reasonably supports the determination that Lawson did
not prove he would have accepted the guilty plea but for counsel’s errors, there
was a reasonable basis for the state court to deny relief on Ground Two.
VI. CONCLUSION
Based on the foregoing reasons, we conclude that the district court did not
err in denying Lawson’s 28 U.S.C. § 2254 habeas petition. We therefore affirm.
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AFFIRMED.